ICAO, EASA, and national air law.

[CaptCrispy]

In preparation for regular flying here in Switzerland I need to understand a few things about air law. I am also interested in the general precedence of law as I may have the opportunity to fly in several other countries. I am trying to find out myself but always end up with more questions than answers, hopefully some of the kind people on here can help.

[EDIT] Quick edit to add other countries may be non-EASA and/or non-ICAO.[END]

Lets assume for the first question that there is a difference between ICAO, EASA and two national air law regulations. For example (fictitious and possibly stupid figures), ICAO specify a low flying regulation of 1000ft above person, vessel, etc. EASA specify 750ft, the UK CAA specify 500ft and two other states specify 300ft and 250ft.

Which takes priority and when? Does it depend on the state of licence issue, the state that the pilot is flying in, the state the pilot is resident in (if different from state of licence issue), whichever is the most restrictive regulation, or something else completly?

Thanks

[Jim Jones]

AIUI the most stringent regulation applies in all cases of "mixed rules".

[johnm]

Essentially the rules of the state in which you are flying take precedence and it's up to you to know what they are. You'll find them in the flight guides, e.g. the Jeppesen VFR manuals have the rules for each country at the front of that section.

[Silvaire]

The only law that matters is the law of the nation in which you're flying. ICAO is an inactive UN debating society, EASA passes 'laws' which are not directly applicable to individuals.

[Timothy]

The only law that matters is the law of the nation in which you're flying.

This is incorrect.

Any limitations on your licence remain on your licence when you are abroad, hence the endless debates about VFR on top. This is also true regarding the airworthiness and maintenance of your aircraft etc.

[Silvaire]

When operating in a foreign country, with a pilot certificate and/or aircraft regustration from outside of that country, you are essentially operating under the laws of the country you came from, further limited by the laws of the country in which you are flying. The take-away in response to the OP's question is that national laws are what matter, not international 'laws' - although it's true that more than one nation may be involved.

[Timothy]

The take-away is that national laws are what matter.

I continue to disagree.

If the privileges of your licence allow you to fly in a visibility of 5km and there is a limit in some foreign airspace of 10km you are limited to 10km.

If the privileges of your licence allow you to fly in a visibility of 10km and there is a limit in some foreign airspace of 5km you are limited to 10km.

[Silvaire]

All those laws are national laws.

[Cobalt]

To complete the points that Timothy is making:

You can fly an aircraft into any ICAO contracting country

• if the aircraft certificate of airworthiness and its corresponding maintenance are ICAO compliant
• your licence is ICAO compliant
• your licence is accepted by the state of registry for their aircraft (issued or validated by them)
• you follow the rules of the air of the country you fly in
• you meet the equipment requirements of the country you fly in

Basically, you take your licence privileges (and restrictions) and your airworthiness with you, but the rules are all local. However, if the local rules differ from the ICAO standards, these differences should be published in the national AIP so you can look them up.

If you fly a non-ICAO-compliant aircraft (e.g., experimental), or have a non-ICAO-licence (e.g., NPPL), you need approval by the country you go to.

Timothys example applies in any country when rules of the air and licence privileges differ - the more restrictive of the two applies. Even if the rules of the air allow you to fly inverted through a thunderstorm with only a turn indicator and a rubber duck, if your licence restricts you to 3000m visibilty and in sight of surface, you have to stick to that.

Another example: In Germany, IFR in Class G is verboten. So it is not allowed for the visiting UK pilot in his UK aircraft, either. It is in their rules of the air.

On the other hand, some pilots might get freedoms abroad that they do not have at home. In the UK, IFR in Class G is allowed. So it is allowed for the visiting German pilot in his German aircraft - their licence does not have a restriction on that, and they do not take their silly rules with them to the UK [they need EASA to do that]


EASA are working on European-wide rules of the air. As soon as that happens, they will be the same in all EASA countries. Until then, you need to know the local rules.

[bookworm]

Lets assume for the first question that there is a difference between ICAO, EASA and two national air law regulations. For example (fictitious and possibly stupid figures), ICAO specify a low flying regulation of 1000ft above person, vessel, etc. EASA specify 750ft, the UK CAA specify 500ft and two other states specify 300ft and 250ft.

Which takes priority and when? Does it depend on the state of licence issue, the state that the pilot is flying in, the state the pilot is resident in (if different from state of licence issue), whichever is the most restrictive regulation, or something else completly?

Good questions.

ICAO doesn't make air law. It sets standards and recommends practices. If a state has rules that differ from ICAO standards, it's meant to notify ICAO and explain the difference in GEN 1.7. Compliance with this convention, er, varies.

EU Regulations automatically override national legislation in the EU in areas where the EU has "competence". So far, the EU has competence in commercial air transport operations (regulation EU-OPS), in initial (Part 21) and continuing airworthiness (Part M) and aircrew (Part FCL and Part Med). It has developed regulation in Rules of the Air (SERA), operations (OPS, in various parts) and is developing ATM and airport regulations.

Switzerland is an interesting case. It has no treaty obligation to follow EU law, but (like Norway and Iceland) has chosen to do so. Ironically perhaps, it is the first state to implement Part-FCL. It does this by incorporating the EU regulation in national legislation. Again ironically perhaps, while for the rest of the EU the translations of legislation have equivalent weight, in Switzerland the English version of EU aviation regulation is authoritative.

To your specific question, in a non-EU context, you must obey the Rules of the Air of the state that you are in. The state of registry of your aircraft may also require you to obey its Rules of the Air, to the extent that they do not conflict with the local ones. Over the High Seas, you must obey ICAO Rules of the Air (yes, I know, previously I said...). I have never come across an instance of enforcement of anything other than the local Rules of the Air.

Once we have SERA, the rules of the air will be standard in the EU. Well standard-ish.

For other parts (airworthiness, flight crew), the relevant rules are those of the registration of the aircraft conducting "international air navigation", and the state in whose airspace you're flying are required to accept ICAO compliant licences and certificates of airworthiness issued by the state of registry. This does not prevent the state in whose airspace you're flying from making more permissive rules, but bear in mind that you might be committing an offence in the state of registry by breaching its e.g licence restrictions. Frankly, most NAAs have better things to do than chase pilots flying their aircraft who are obeying local rules without complaint.

[Silvaire]

ICAO doesn't make air law. It sets standards and recommends practices. If a state has rules that differ from ICAO standards, it's meant to notify ICAO and explain the difference in GEN 1.7. Compliance with this convention, er, varies.

Exactly.

EU Regulations automatically override national legislation in the EU in areas where the EU has "competence"

That would be the first statement in the thread that would support ANYTHING except a national law having any authority. For instance, if a non-EU nation accepts another nation's pilot license for operation in its airspace, its does not make it any less a function of national law. You are still operating under ONLY under the laws of the country in which you are located. The possible ICAO genesis of national law is irrelevant.

I'm glad to be flying in a sovereign nation regardless.

[Timothy]

Silvaire,

I am clearly being very stupid, because I just don't get where you are coming from or what you are trying to say.

Yes, all the restrictions of the country you are flying in apply.

Additionally, all the restrictions of the State of Registry of the aircraft apply, and all the licence restrictions of the Licensing State apply.

Thus, no-one can fly IFR in Class G in Germany, but a Frenchman with no IFR qualifications can fly above cloud in France, because it is legal, but a Brit can't, because his licence privileges say no. Similarly a US aircraft need not have an ADF in the States but must in Germany, etc etc.

[Silvaire]

Let's try again then. When flying in a given country:

1) The pilot certificate you are flying with has been accepted by that country (regardless of who issued it) because the law makers of that country decided it would be so. Not because of any power outside of their country.

2) the airworthiness certificate of the aircraft has been accepted by that country (regardless of who issued it) because the law makers of that country decided it would be so. Not because of any power outside of their country.

3) the rules by which you fly are national law created by the law makers of that country.

All of the above can be changed by the law makers of the country, at their discretion.

An outside country that issued a pilot certificate may or may not regulate what you do with it beyond its own borders. Many certainly do but their recourse is limited to pulling any license they have issued. It doesn't mean they write (or enforce) law outside their borders.

I think the assumption that all countries cooperate and that in doing so impose a standardized set of requirements on a pilot operating anywhere internationally is untrue from first principles. There is no international air law at that level unless you consider the EU to encompass the 'world'. The ICAO does not make law, it makes recommendations for national law, and mediates between countries. The EU is a quasi-country in that regard, which is where I think the confusion could arise for those operating internationally within the EU.

The OP did not ask for an 'often true' answer, he asked for a first principles answer on flying with an unspecified pilot qualification in unspecified countries.

[peterh337]

I don't think anybody above is actually disagreeing

The basic point is that every country has absolute sovereignity within its airspace, and the fact that you can fly in (e.g.) UK airspace in an N-reg with an FAA CofA and on FAA pilot papers is because the UK has accepted all those papers so you are now flying under UK regs.

The framework under which the UK has accepted them is basically ICAO, but that doesn't change what I say about sovereignity.

To illustrate this with another example: if you bust CAS in say Angola and then land back home in the UK. the UK CAA is obliged by ICAO to go after you and prosecute you. But it can only do it to the extent that UK law allows it; if Angola ask the UK CAA to arrest your family, rape your daughters and then hang you, the CAA won't do that because those things are illegal in the UK. (EASA can do it though ). But if you landed in Angola, they could do it all.

[CaptCrispy]

I am still confused so I need more coffee to fully digest these replies, but I am glad I am not the only thing having trouble understanding it all.