Exactly, if ICAO says “separation is 5NM”, Greece can decide to have a separation of 8NM or 3NM and ICAO is not directly relevant. If the EU regulation says “separation is 5NM unless prescribed differently by the State Authority”, separation can still be 8NM or 3NM. If the EU regulation says “separation is 5NM.”, then it has to be 5NM and if Greece says it’s 3NM or 8NM, the Greek state can be sued for that and the EU court in Luxembourg will deem Greece to be in violation and the separation will be changed by the Greek legislator to be 5NM.
As EASA tend to be very close to ICAO — closer than most of its member states until then — our airlaw is rather ICAO compliant these days and the national differences are all in line with current EU legislation, which is a good thing.
PS: Germany is being sued by the EU Commission for requiring an intelligence screening of pilot license applicants on top of the license requirements given in Part FCL (valid EU law). The EU law does not have a provision “the following requirements have to be met by applicants plus whatever member states want in addition” so it’s illegal to ask for more and Germany will lose. However, they wait for that so when the next terrorist attack with a Cessna 150 occurs, they can claim that it’s the EU’s fault.
achimha wrote:
PS: Germany is being sued by the EU Commission for requiring an intelligence screening of pilot license applicants on top of the license requirements given in Part FCL (valid EU law).
Yes…you don’t want to be like Australia which requires biennial background checks if you want to fly to any airport which has any scheduled commercial traffic… every two years you need to get documentation attested and resubmit (even your birth certificate – which obviously will be exactly the same as it was last time!)…then pay several hundred dollars and they will send you a new ASIC (Aviation Security Identification Card)…. the fine for not complying is around $10k…
It’s not so much about flying your C150 into a building, it’s about having airside access…
As far as I can see, Greece, for example, had ratified and made country law the Chicago Convention in 1947, and later adopted its Annexes as country laws. I think the relevant info is in each country’s AIP Part 1 GEN.
achimha wrote:
ICAO is not a source of law.
The Danish CAA does not agree. I do not necessarily trust our CAA more than I trust acimha, but I am looking for a reference.
ICAO tells pilots how to fly IFR procedures and how to operate transponders. Those are all from ICAO doc 8168, they are not anywhere to be found in Danish law or in EASA rules (not yet, transponder OPS are in the next Part-SERA revision), but the Danish CAA claims they are law so that pilots can be prosecuted for not following those rules and that if those rules are not followed in general, the system would collapse.
Where is the reference that tells which is right?
Thats is relatively simple…
With the proper legal system that Denmark has, a prosecution is only possible if the ICAO rules are explicitly adopted and thus made binding, or somehow embedded in Danish law / otherwise binding regulation.
If neither has happened, then a court has nothing to base a judgement on.
(fortunately so, and the big difference to nations w/o a proper legal system)
Not sure there is an open accessible, searchable database to do it yourself – but that is what you can do. Alternatively ask a air law specialised lawyer ?
Are you guys seriously asking whether flight procedures (which is what ICAO doc 8168 is about, and you mentioned setting transponder codes) are enshrined in law anywhere???
In that case, where is the law that tells me exactly when to select which gear in my car, and how to wipe my a** when going to the loo.
If some administration threatens to sue you, if you do not wipe your lower back the way they prescribe or use a different gear than they insist on, the yes, you would want to know whether it is enshrined in law…
@cobalt. Yes, I am serious. It is a question about whether e.g. ICAO doc 8168 is to be regarded as having equivalent status as the rules of the air, or as advisory standards only. Transponder operation, which is covered in doc 8168, is indeed going to be enshrined in law shortly, as it will be included in the next revision of Part-SERA, which we all seem to agree is binding in EASAland.
@ch.ess. It seems that you agree with acimha that an ICAO membership does not mean that ICAO documents are not by themselves (i.e. not explicitly adopted) legally binding although the national authority has to submit a letter of exemption if there is something they do not agree with. I must admit I have never heard of anyone been charged with violating an ICAO rule.
Unless there is a specific act passed in line with a country’s requirements (which in most European countries is either an act passed by parliament, AKA as primary legislation, or secondary law created by an authority under rights granted by such an act, AKA as secondary legislation), the CAA can say whatever they want, that does not make it law.
They still may use things like unsafe operation etc. to come after one if they don’t follow an international standard even if it is only a recommendation, though
