key: cord-0059400-i98ddeln authors: Salih, Chehab title: Relevance of Aerodrome Planning date: 2020-11-04 journal: International Aviation Law for Aerodrome Planning DOI: 10.1007/978-3-030-56842-9_1 sha: f491b62c3151cc64f792b9bc683f396d6f85e664 doc_id: 59400 cord_uid: i98ddeln Air traffic is expected to double in the next 15 years. The air traffic growth led and leads to capacity constraints at airports worldwide. Thus, states as well as aerodrome operators are required to build, expand or at least maintain airports. Aviation represents an industry that has successfully survived the oil crisis of 1973, the catastrophe of 9/11 and the financial crisis of 2008. Therefore, it is reasonable to predict that aviation will also defeat the challenges that have arisen due to the COVID-19 pandemic. Even during the COVID-19 crisis and accompanying low traffic numbers, many airports in cities like Munich, Stuttgart, Belgrade or Auckland take the opportunity to adjust their airport infrastructure. Having that in mind, this chapter highlights the necessity and relevance of ICAO’s international aerodrome planning requirements in the twenty-first century. Further, the reader gets a comprehensive overview of the topics and legal questions that will be covered in this book. the required infrastructure and sufficient capacity to meet the stated market growth. 16 In this context, the Commercial Market Outlook of Boeing notes in 2019: 17 After nine straight years of above-trend passenger growth, many airports are experiencing pressure on operational capacity. This is particularly acute in high-growth regions such as Southeast Asia, China, and India and in Western airports where airport expansion is artificially restricted, such as in many parts of Europe. Notably, the Asia-Pacific region incurs operational constraints. It is clear that the provision of sufficient capacity, operability, and affordability will benefit local communities and national economies. 18 In high populous states like Thailand, Indonesia, Philippines and of course India and China, the middle class has gained financial power due to higher incomes. 19 In result, the propensity of travelling due to sociological and in particular economic purposes is predicted. In the meantime, many local airports do not have the adequate capacity to satisfy the existing and prospected demand. The capital airport of Indonesia, Jakarta Soekarno-Hatta International Airport, has a calculated capacity of 38 million passengers per year (mppa). 20 Nevertheless, the airport handled around 54 million passengers in 2015. A similar tendency applies to Bangkok Suvarnabhumi Airport in Thailand, where the airport served about 52 million passengers despite a designated capacity of 45 mppa. These examples are not the only ones demonstrating the operational constraints airports are facing nowadays. In reaction, many states initiate airport development projects to support air traffic growth in the upcoming 20 years. 21 Around $13 billion will be invested to develop Beijing's New International Airport. 22 The airport will serve 130 mppa 23 while currently serving around 89 mppa (2015) . 24 Another airport development project will be executed in New Delhi, India. According to a market analysis conducted for the European Commission, Delhi International Airport was the third fastest-growing airport between 2006 and 2015 with 10.1% p.a. (No. 1: Dubai International Airport-United Arab Emirates: 11.7% p.a., No. 2: Istanbul-Atatürk Airport-Turkey: 11.5% p.a.) handling approximately 48 million passengers in 2015. 25 In order to increase capacity in India's capital, a new airport, namely Noida International Airport, will be built to serve additional 50 mppa. Thereby, the investment costs amount to $3.1 billion. 26 But not only new airport developments will be initiated. Construction of additional terminals for existing airports are expected as well. The Chhatrapati Shivaji International Airport in Mumbai, India is an example of such projects. The Indian authorities will invest $1.5 billion to complete a new terminal (Terminal 2). 27 As a result, so-called "super hubs" will arise in Asia, notably in Dubai and China in order to connect with the Western States. 28 In this context, over 40 airport development projects valued at $100 billion will be accomplished in the Middle East Region. 29 The projects comprise terminal expansion and runway upgrades in Abu Dhabi, terminal enlargement and a possible new airport in Bahrain, as well as upgrades to the terminal and runway rehabilitation in Dubai. Further capital projects are foreseen in Jeddah, Riyadh, Muscat and Tehran because a capacity of 100 mppa is planned at these locations. These developments are crucial for aviation, as the key factors that drive aircraft demand, for instance, are market liberalisation, environmental regulations and notably the development of airport infrastructure. 30 According to market forecasts initiated by Boeing, around $1 trillion will be invested to improve existing airport facilities or spending on new airports all over the world until 2021, taking into account that expansion projects are prevalent in mature aviation markets. Also, Boeing estimates, that at least $2 trillion will be spent on airport infrastructure until 2030. 31 Airports have strategic importance for a state. 32 They are part of the overall transport system and are linked "to high-speed rail and key road networks." Moreover, as Graham mentions, airports bring wealth and thorough employment opportunities and support economic development. 26 https://www.reuters.com/article/us-india-airport/india-clears-plan-for-3-10-billion-second-air port-for-delhi-idUSKBN19F0FM, assessed on 16.08.2019. 27 Ultimately, states will have to invest in either airport expansion, new airport development or extensive maintenance projects to react to the capacity constraints. 33 Hence, a profound analysis of airport planning requirements is vital to achieving the goals set successfully. Airport planning or aerodrome planning is treated through different perspectives. First, it can be examined from a purely technical point of view. This discipline encompasses aspects concerning design and infrastructure. Thereby, specifications thematise, for instance, width of runways, slopes on taxiway strips and markings on aprons. 34 Second, there is an economic perspective. As far as this discipline is concerned, likewise airport internal administration and finance, funding, marketing, public relations or airport charges, and fees are subject to discussion. 35 However, these and other disciplines must adhere to a regulatory framework, that targets safe and efficient airport operation. For instance, airports-being essential infrastructural elements of a state-have to meet high safety standards. 36 As a consequence, aerodrome planning depends on legal requirements which are subject to this work. German law associates aerodrome planning directly with planning approval procedures of airports 37 according to § 8 of the German Air Traffic Act (LuftVG 38 ). 39 Jurisprudence has shown that an approval according to § 8 is required either when a new aerodrome is constructed or in case of infrastructural and operational changes that have an impact on publicity or environment. 40 However, this book will not interfere directly with German planning approval procedure but will take a more international and holistic approach. This leads directly to the term aviation law in which legal requirements are manifested. Aviation law is dealt with on three different levels: national aviation law, supranational aviation law as regards European law and international aviation 33 41 International aviation law is applicable in more than one state, beyond national and European aviation law, based on bilateral and inter alia multilateral treaties. 42 The Vienna Convention on the Law of Treaties (VCLT) 43 defines in its second Annex a treaty as: 44 Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; As a matter of fact, international aviation law contains regulations and rules affecting global aviation. 45 Furthermore, international aviation law provides a framework for multilateral aviation-specific concerns like safety, security, liability, aircraft financing, as well as aerodrome planning. Beside multilateral aviation law, there are also bilateral aviation law treaties. 46 In terms of supranational law and European Law respectively, the European Parliament and the Council adopt regulations that are directly binding upon all Member States. 47 Currently, there is a clear intention of the European Regulator to uniform aviation within the European Union through regulation rather than directives. 48 The binding character of regulation can be derived from Article 288 para 2 TFEU. 49 Without any doubt national aviation law is important since it regulates domestic aviation. In addition, powerful national jurisdictions had a remarkable impact on the evolution of international aviation law in the past. 50 This work will primarily focus on international aviation law because of two reasons. Firstly, it would require lots of efforts to analyse the single national aviation regulations in order to describe the derived differences. This, however, is not the target of this work at hand. Secondly, according to Havel, aviation is a massive industry, heavily regulated and structurally borderless. 51 As a result, it is necessary to concentrate on international regulation with regards to aviation and inter alia aerodromes. Notwithstanding, an excursion into national law will be initiated at some points-either in order to understand international obligations better or to provide best-practice examples that could benefit regulatory frameworks of other states. 1.5 Definition of the Terms "Airport" and "Aerodrome" The term "aerodrome" is often used synonymously and associated with "airport". 52 Both, international and European regulations as well as guidelines fail to distinguish clearly between a definition of aerodromes and airports. On the international level, the Chicago Convention (CC) uses the term "airport", whereas ICAO Annex 14 for Aerodromes 53 applies "aerodrome" in its wording. There is no explanation for this inconsistency. 54 ICAO Annex 14 defines an aerodrome as: 55 A defined area on land or water (including any buildings, installations and equipment) intended to be used either wholly or in part for the arrival, departure and surface movement of aircraft. ICAO Annex 9 defines an international airport as: 56 Any airport designated by the Contracting State in whose territory it is situated as an airport of entry and departure for international air traffic, where the formalities incident to customs, immigration, public health, animal and plant quarantine and similar procedures are carried out. The introduced definitions are not contradictory. Accordingly, an aerodrome could be an airport and vice versa. Thus, a decisive differentiation is not possible. This uncertainty has a direct impact on national regulations, as German Aviation Legislation, 57 for instance, does not offer a legal definition for the term aerodrome. 58 Apart from this, there are no requirements listed that have to be fulfilled for an aerodrome to adapt to the status of an airport. 59 The Manual on Aerodrome Certification (MOCA) states that 60 "an aerodrome is considered to be an "airport" when the aerodrome operator has applied for and has been issued with an aerodrome certificate covering the operation of that airport." The presented definition within the MOCA is not adequate since it connotes that every so-called airport is in possession of a certificate, and this is not true at all. The capital airport of Nigeria Nnamdi Azikiwe International Airport (NAIA)-Abuja has been certified recently in November 2017 and was denoted airport even before. 61 In addition, the expression of "to be considered" does not have the same imperative character as "shall" for instance. The wording of ICAO is obviously one factor contributing to inconsistent usage of these terminologies. 52 Giemulla and Weber (2011) According to Giemulla, an airport is more than just an area where aircraft could arrive and depart from. Thus, an airport is associated with facilities. 62 This approach is similar to the German Legislator's approach. Thereby, aerodromes are separated into three different classes: airports, airfields and glider fields. 63 Additionally, Giemulla states that an airport is a centre of legal relationship, bringing together economical, technical and political interests. 64 Hence, all airports are aerodromes, but not all aerodromes are airports. Legally, airports are private objects of a state, as their usage is not allowed to every single person. As a fact, an airport is subject to restrictions and principles. This separates an airport from an object of public nature. Giemulla's interpretation distinguishes clearly between both terms. Consequently, the term aerodrome will be used, as it encompasses not only airports but also other landing areas without facilities that must adhere to legal requirements in order to achieve safety. The main objective of this book is to discuss the following question: "What are the main legal questions and challenges regarding international requirements for aerodrome planning?" Different topics are derived from this question and discussed in legal terms. In the context of this work, aerodrome planning does not only refer to the construction and expansion of aerodromes but also to the operation, maintenance and surveillance. Keeping in mind that aerodrome developments will be accomplished in the future, the importance of the stated research question is further highlighted through the following aspects: "SAFETY FIRST!" It is assumed that this principle prevails in many different industries. Especially in high-technology branches, namely, in aviation, this principle has an extremely high priority since a shortcoming can lead to a catastrophe. On the 5th of January 2018, a Boeing 737-800 operated by United Airlines lined up on runway 33L to depart from Boston Logan International Airport. 65 However, the crew contacted the tower in order to report that they have to taxi off the runway because they were not able to continue the take-off process. After cancelling the take-off clearance, the tower instructed the crew to taxi down runway 33L, which crosses runway 27, and to hold short at the runway holding position marking before crossing runway 27. Simultaneously, an Embraer ERJ-190 operated by Jetblue was on final approach of runway 27. The tower instructed United Airlines again to hold short of runway 27. Five seconds later the tower agitatedly said again "hold short runway 27". The crew of United Airlines responded that they are short of runway 27. Notwithstanding, the tower instructed the Jetblue crew to abort the landing and to go-around. Jetblue started a second approach and landed safely, whereas United Airlines returned to the apron and departed later on. The airport authority reported that United Airlines entered the protection area of runway 27 which starts right after the runway holding position marking. This led to an alarm in the tower, resulting in a go-around instruction for Jetblue. Satellite photos illustrate that there is no runway holding position marking on runway 33L in the meantime, which could be the reason for entering the protection area of runway 27 66 because the crew was still looking for the marking to appear. A Boeing 737-800 has a seat capacity of 189 seats and an Embraer ERJ-190 a seat capacity of 118 seats. The worst-case scenario would be a crash of both aeroplanes at the crossing point of runway 33L and runway 27, resulting in over 300 fatalities. If this had happened, it would have been a disaster, knowing that a runway holding position marking with a length of 45 m and a width of 1.05 m 67 would have saved many lives. This example clearly demonstrates how important adherence to international aerodrome planning requirements is in order to ensure safety and to save lives. It appears unreasonable and unsafe if a pilot would have to apply different rules once he overflies the invisible borders of a State. 68 That said, it is necessary to define legal requirements for aerodromes that apply internationally. Market forecasts expect that South-East Asian Nations will have to invest $33 billion in aerodrome infrastructure in the next 5 years to successfully meet the demand. 69 Taking into account that these nations are Developing States with limited government budgets, this is an immense sum. Therefore, it is extremely important to be aware of aerodrome planning requirements to avoid planning errors, that could lead to immense additional costs. 70 Germany's capital aerodrome, Willy-Brandt-Airport, in Berlin should have opened its doors for international aviation in 2011 with 5 years of construction (since 2006) and estimated project costs of €2 billion. 71 In 2018, the construction was still not finished, and the costs exceeded €7.3 billion. A further €3 billion will even be needed until 2030. Besides, all additional costs do not include potential revenues, which could have been generated by real-estate rents within each terminal. 72 Incontrovertibly, this imperfection associated with aerodrome planning does not only incur losses to the government's and aerodrome planners' reputation but also often leads to inexplicable financial losses. It is a fact that this condition will be more tragic for Developing States than for Developed States, given the formers' limited resources. In conclusion, the long-term nature of aerodrome construction along with significant financial requirements 73 force aerodrome planners to comply with legal requirements and to internationally accepted best-practices. In the context of aerodrome developments, notably, Mott MacDonald mentions that high levels of expertise and resources are required in Asia to develop large scale aerodrome infrastructure. 74 In most Asian cases, neither expertise nor resources are available in government-owned and/or operated aerodrome authorities, which often necessitates seeking for private involvement in aerodrome development. ICAO has established an audit program that foresees to examine the implementation status of its international legal requirements. 75 The results of 2018 have been alarming since only 58.5% of the Contracting States have effectively implemented international provisions for aerodromes. In addition, many states face severe shortcomings in their safety oversight system. 76 In result, the five mentioned aspects (safety, financial scale, limited expertise, few resources, alarming ICAO audit results) motivated the idea of discussing the stated research question. The objective thereby is to provide for states, international organisations, competent authorities, aerodrome planner and aerodrome operators a comprehensive overview of legal challenges and requirements with regard to aerodrome planning. In addition, answers to the derived legal questions as well as recommendations thereafter shall help to enhance regulative systems and to establish a safer aerodrome environment worldwide. Before deriving and discussing legal questions and challenges, it is necessary to present the international requirements for aerodrome planning. Therefore, Chap. 2 illustrates the development of international aviation law. An analysis of the multilateral aviation law treaties in the first half of the twentieth century is conducted. The aim is to follow a chronological approach in order to point out whether states have defined legal requirements for aerodrome planning on an international basis already before the conclusion of the Chicago Convention in 1944. It is further examined what these requirements comprise and how they can be categorised. The analysis in this chapter is not limited to international law. An insight into national legislation is also necessary in order to determine whether states have adapted their national 73 legislation to the international treaties and how they adhered to them. In addition, the national legislation of states that have not acceded to the international conventions will be reviewed. The purpose of this study is to analyse whether the absence of accession had an adverse effect on national legislation and more precisely, whether this circumstance had negative consequences for the development of national aerodromes. Hence, it will be summarised what the target of defining international legal requirements for aerodromes is. There are legal questions that arose in the past but impact the present and therefore need to be addressed. Thus, Chap. 3 analyses the Chicago Convention of 1944, which is still in force. After an introduction to the circumstances under which the Convention has been concluded and to the supplementary agreements that are incorporated therein, the organs of ICAO are presented. The target of Chap. 3 is to examine how the Chicago Convention deals with legal requirements for aerodrome planning. For this purpose, it is first necessary to analyse the legal instrumentsnamely Standards and Recommended Practices-that have been provided to the ICAO through the Chicago Convention. One of the major open legal questions is related to the binding effect of Standards as well as of Recommended Practices and to associated obligations that have to be considered by the Contracting States. Subsequently, the legal aerodrome requirements in the Articles of the Chicago Convention as well as in the corresponding draft Annexes will be explained, and relevant legal questions will be analysed. The main legal question subject to the scrutiny is as to whether the Chicago Convention has ensured the safe construction and operation of aerodromes. This step is essential in order to clarify which of the two legal systems-namely the Chicago or Paris system-is more suitable to define legal requirements for aerodrome planning. Considering national and international regulation introduced in Chaps. 2 and 3, it will then be pointed out what a perfect legal system for aerodrome planning could have looked like in 1944. Based on the results of Chap. 3, an assessment shall derive as to whether states need to amend the Chicago Convention-75 years after its conclusion. This question will be answered from an aerodrome planning perspective and-if required-supported by proposals for an amendment. Chapter 4 addresses present legal questions and challenges of aerodrome planning that are relevant for ICAO, states, competent authorities, and aerodrome operators. Firstly, the regulatory framework of ICAO is introduced and described. International legal requirements for aerodrome planning are not only defined in Annexes to the Chicago Convention but also in other levels of ICAO's regulatory framework. The binding effect of provisions on these levels differs and allows further analysis. It shall be derived to which extent Contracting States must adhere to those when planning an aerodrome. Secondly, the current legal requirements of aerodrome planning will be explored and categorised into essential and additional requirements. The objective is to give a generic overview of key considerations and different facets related to the planning of new aerodromes or the expansion of existing ones. ICAO develops the different legal requirements for aerodrome planning within its rulemaking process. This process needs to be analysed since it reveals legal weaknesses related to its democratic legitimacy. That said, a discussion shall result in different approaches and methods of improvement. These methods will be either simple to introduce or more complex, requiring an amendment to the Chicago Convention. Drafts of possible amendments in this context are proposed. States are responsible to integrate international law into their national legislation. This applies to the provisions of the Chicago Convention and to Annexes thereto. Incorporation is necessary to comply with the obligations under the Chicago Convention. There are different methods used to fulfil this requirement. Various theories are introduced in Chap. 4 that describe the relationship between international and national law and how both legal systems interact with each other. This introduction is essential to demonstrate how the Contracting States have integrated the Paris and the Chicago Convention into national law. The integration process does not always achieve the domestic applicability of international law, but instead requires it. An examination shall, therefore, clarify whether the aerodrome-related Articles of the Chicago Convention as well as the Standards and Recommended Practices in ICAO Annex 14 are directly applicable or still require additional national acts. In the next step, an excursion into national legislation is sensible to illustrate different methods on how states integrate ICAO Annex 14 for Aerodromes into national law. The different methods have their advantages and disadvantages, which are particularly apparent when ICAO establishes amendments that have to be applied domestically. The Theory of Essentialness from Germany will be explained and used to point out if it is legitimate to provide an executive organ of the state with powers to introduce amendments to Annex 14. In result, it should be derived what the most appropriate way to incorporate Annex 14 is. Furthermore, an analysis shall reveal how states should deal with the integration of ICAO Standards and Recommended Practices nationally. The integration of international law motivates a discussion on available enforcement tools in both systems. In the first instance, sanctionable law and associated cases have to be determined. In the second step, an analysis shall derive whether ICAO's vertical or horizontal law enforcement mechanism is more suitable to enforce aerodrome regulation. ICAO's procedure for transparency and disclosure is in this regard analysed and evaluated. The chapter is finalised with an analysis of ICAO's aerodrome certification requirements. This step is necessary since a large number of Contracting States have not certified their aerodromes in accordance with international Standards yet. Chapter 5 addresses legal questions and challenges that arise in the present and impact the future. The responsibility towards an aerodrome does not end with its certification. The aerodrome must continue to prove its operability and meet the existing and new legal requirements for aerodrome operation and infrastructure. ICAO uses the USOAP-an auditing program-to assess to which extent the Contracting States implement international regulation and whether states have established an oversight system. Chapter 5 analyses the USOAP from a legal point of view and examines whether the Chicago Convention has given the ICAO the necessary powers to execute this program. Furthermore, an analysis should highlight if states are legally obliged to participate in the auditing process and to implement corrective recommendations made by ICAO. Many states do not follow and comply with the Standards and Recommended Practices of ICAO. Notably, the USOAP results for aerodromes are not satisfactory. Reasons for this shortcoming and the current mitigation practices of ICAO are pointed out and evaluated. This evaluation shall motivate ICAO to rethink the current way of rulemaking for aerodrome requirements. In this respect, a shift from prescriptive regulation to performancebased regulation could be beneficial. What exactly performance-based regulation is and where the differences to prescriptive regulation lie, will be answered in this chapter. In particular, the discussion will outline what needs to be taken into account when implementing performance-based regulation due to current challenges. Chapter 5 also identifies which types of provisions in ICAO Annex 14 should be considered for the development of rulemaking in a performance-based way. Performance-based aerodrome planning requirements are then drafted and proposed for two safety-critical topics related to aerodrome planning-namely for the provision of a RESA and the management of jetblast hazards at the aerodromes. Additional considerations in this regard are provided for the implementation of an SMGCS and management of change at aerodromes. Chapter 6 sums up the main results through the provision of hypotheses. Further, this chapter proposes recommended actions. These actions should be fulfilled by different entities: ICAO, the state, competent authorities, and aerodrome operators as well as aerodrome planners. Every stakeholder has a defined responsibility in the process chain that needs to be sufficiently addressed in order to achieve a safe and efficient aerodrome environment. 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