F. Unmanned Aerial Vehicles 171
Protocol No.3 (Montreal) andin Montreal Protocol No.4of 1975.Itis submitted that Article 3 (b) of the Chicago Convention has no bearing on the applicability of these instruments of the “Warsaw System” which specify their own scope of applicability.
The Montreal Convention of 1999477 which replaced the Warsaw Convention of 1929 also stipulates in its Article 1 that the Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. Like its predecessor, the Montreal Convention does not distinguish between civil and military or other State aircraft.
This analysis of some international air law instruments illustrates that many post-Chicago air law instruments (Geneva 1948, Tokyo 1963, The Hague 1970, Montreal 1971 and Rome 1952 and as amended in 1978) all have broadly similar provisions to Article 3 (a) and (b) of the Chicago Convention. The private air law instruments of the Warsaw System on the other hand, because of their nature, have adopted different formulae.
The provisions of the Chicago Convention and Annexes would not apply in a case where a state aircraft is (mistakenly or otherwise) operated on the basis that it is a civil aircraft. Similarly, the Geneva Convention of 1948, the Tokyo Convention of 1963, The Hague Convention of 1970, the Montreal Convention of 1971 and the Rome Convention (1952) as amended in 1978, will also not be applicable where it is determined that the aircraft was “used in military, customs or police services.” The converse, of a civil aircraft being operated on the basis that it is a state aircraft, would theoretically raise the same problems (i.e., legal regimes thought to be inapplicable are in fact applicable). Concern is not often expressed in this regard.
Another frequently mentioned dif.culty is claimed to be the loss of insurance coverage in respect of the aircraft (hull), operator, crew and passengers or other parties where the aircraft is in fact state aircraft. The question whether a particular insurance coverage is rendered invalid in such situations is primarily a private law matter of the construction and interpretation of the insurance contract. Unless the contract has an exclusion clause which speci.cally makes reference to the classi.-cation in Article 3 of the Chicago Convention (e.g., loss of coverage where the operation is of a state (or civil)aircraft as de.ned in the Chicago Convention), then the Convention will have no bearing on the contract, and this issue of the loss of insurance coverage is not germane to this study. Frequently, the policy will exclude usage of the aircraft for any purpose other than those stated in a Schedule; among the exclusions would be any use involving abnormalhazards. Nearlyevery aviation hull and liability policy now excludes losses due to war, invasion, hostilities, rebellion, etc., although insurance to cover such losses can usually be obtained by the payment of a higher premium. However, the instances mentioned do not require a determination of whether the aircraft is considered to be state or civil under the Chicago Convention.
477Convention for the Uni.cation of Certain Rules for International Carriage by Air, signed at Montreal on 28 May 1999. ICAO Doc 9740.
A question sometimes asked is whether national civil laws and regulations would apply to civilian .ight crews operating what is a state aircraft under the ChicagoConvention. Would civilormilitaryinvestigativeand judicialprocessesbe applied, for example, in the case of an accident? The answer would depend largely on the domestic laws of the State concerned. The fundamental principle is stated in Article 1 of the Convention: every State has complete and exclusive sovereignty over the airspace above its territory. Furthermore, subject to the provisions of the Convention, the laws and regulations of a contracting State relating to the admis-sion to or departure from its territory of aircraft engaged in international air navigation, or the operation and navigation of such aircraft within its territory, shall be complied with by (civil) aircraft of other contracting States, upon entering or departing from or while in the territory of that State. A fortiori, state aircraft are also subject to the laws of the subjacent State.
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