International Civil Aviation Law in the Maldives: The Public and Private Branches and How They Apply

Introduction

International civil aviation law has two branches. Public international air law governs the relations between states: who may fly where, on what conditions, to what safety and security standards, and how states cooperate through the International Civil Aviation Organization (ICAO). Private international air law governs the relations between private parties: the liability of the carrier to its passengers and shippers, the rights of owners, lessors and financiers in aircraft, and the liability of operators to third parties on the ground.

Both branches rest on international treaties. In the Maldives, neither branch applies of its own force. Each reaches Maldivian law through the Constitution, the Civil Aviation Act (Law No: 2/2001), the Maldives Civil Aviation Authority Act (Law No: 2/2012) and the regulations made under them. This article explains how the two branches are governed, regulated and applied in the Maldives.

Public international air law

The foundation of the public branch is the Convention on International Civil Aviation (the Chicago Convention 1944), which the Maldives ratified on 12 March 1974. The convention recognises the complete and exclusive sovereignty of each state over its airspace, establishes ICAO, and requires each contracting state to cooperate in securing the highest practicable degree of uniformity in regulations and standards. Under Article 37, ICAO adopts international standards and recommended practices, which are published as the 19 annexes to the convention and cover, among other things, personnel licensing, rules of the air, aircraft operations, airworthiness, aerodromes, accident investigation, security, dangerous goods and environmental protection. Under Article 38, a state which cannot comply with a standard must notify ICAO of the difference.

The public branch also includes the bilateral air services agreements under which states exchange traffic rights for their airlines, the aviation security conventions (the Tokyo Convention 1963, the Hague Convention 1970 and the Montreal Convention 1971, to all of which the Maldives is a party), and the environmental measures adopted under Annex 16, including the carbon offsetting scheme for international aviation (CORSIA).

Private international air law

The private branch consists of conventions which unify the rules applied by national courts to disputes between private parties. The Maldives is a party to the principal instruments:

• the Warsaw Convention 1929 and, since 31 October 2005, the Montreal Convention 1999, which govern the liability of the carrier for death and injury of passengers, loss of or damage to baggage and cargo, and delay in international carriage;
• the Geneva Convention 1948, ratified on 5 September 1995, which requires contracting states to recognise rights of property, mortgages and similar charges in aircraft recorded in the register of the state of registration; and
• the Rome Convention 1952, ratified on 5 September 1995, which imposes strict but limited liability on the operator of a foreign aircraft for damage caused to persons and property on the surface.

The Maldives is not a party to the Cape Town Convention 2001 and its Aircraft Protocol, which create an international registry of interests in aircraft and engines and give financiers and lessors uniform default remedies. Disputes under aircraft leases and financing documents, which are almost always governed by English or New York law and subject to arbitration, are supported by the Arbitration Act (Law No: 10/2013) and by the accession of the Maldives to the New York Convention on 19 September 2019, in force from 16 December 2019, under which foreign arbitral awards are enforceable in the Maldives.

How treaties become part of Maldivian law

Article 93(a) of the Constitution provides that treaties entered into by the executive in the name of the state are binding on the state only on approval by Parliament and in accordance with the conditions of that approval. Article 93(b) provides that citizens are bound by treaties only in accordance with laws enacted by Parliament. The Maldives is therefore a dualist state. Ratification binds the Maldives towards other states, but a treaty creates rights and duties enforceable in the Maldivian courts only to the extent that Parliament has enacted it as national law.

Most of the aviation treaties to which the Maldives is a party were ratified before the current Constitution came into force in 2008 and did not go through parliamentary approval. None of the private air law conventions has been enacted as a separate Maldivian statute. In practice they operate through the contracts of carriage and financing documents of the parties, which incorporate their terms, and through the regulator's obligation under Section 17 of the Civil Aviation Act to set standards no lower than those of the conventions to which the Maldives is a party.

The regulatory framework

The public branch is given effect by regulation rather than by statute. Section 25 of the Civil Aviation Act requires the making of the regulations needed under the civil aviation conventions ratified by the Maldives, and Section 26 gives a general power to make and enforce regulations on civil aviation. The act applies, under Section 27, to all civil aircraft within the Maldives and to all Maldivian registered aircraft wherever they are. The functions of the ministry under the act were transferred in 2012 to the Civil Aviation Authority, which under Section 5 of the Civil Aviation Authority Act is responsible for coordinating and performing the obligations of the Maldives under the international conventions to which it is a party, and under Section 6 has power to make regulations on safety, security, economic regulation and permits.

Under those powers the authority has issued the Maldivian Civil Aviation Regulations (MCAR), which since the Transition Rules (MCAR-19) of 30 September 2020, revised on 30 March 2023, have replaced most of the earlier Civil Aviation Regulations and Maldivian Airworthiness Requirements. The MCAR are organised to follow the annexes to the Chicago Convention.

MCAR-19 permits the Chief Executive of the authority to incorporate by reference a standard or recommended practice made under the Chicago Convention or the law of another state, which is how the detailed technical content of the annexes, and in several parts the corresponding European rules, is brought into Maldivian law. MCAR-Foreign Operators, in force since 27 March 2023, requires foreign airlines to hold an authorisation and ties that authorisation to the traffic rights in the air services agreements of the Maldives. The MCAR are supplemented by air safety circulars and air transport circulars.

Application in practice

The two branches are applied by different bodies. The public branch is applied by the Civil Aviation Authority, which certifies operators, aerodromes and personnel, authorises foreign airlines and reports to ICAO, and by the Aviation Security Command, which is responsible for security at airports. Compliance is enforced through the authority's powers of inspection, suspension and revocation under Sections 18 and 19 of the Civil Aviation Act and the penalties in Section 24, and is audited by ICAO under its universal safety and security oversight programmes.

The private branch is applied by the courts and by arbitral tribunals. A passenger claim against an airline for injury on an international flight, a claim by a lessor to recover an aircraft on default, or a claim for damage caused by a foreign aircraft would each be decided by reference to the relevant convention as incorporated in the contract or recognised by the court. Reported decisions of the Maldivian courts applying these conventions are scarce, and most aircraft finance and leasing disputes are resolved by arbitration abroad and enforced in the Maldives under the New York Convention.

Comment

The public branch of international air law is well embedded in the Maldives. The Civil Aviation Authority has a clear statutory mandate to give effect to the Chicago Convention, and the MCAR now follow the structure of the annexes. The private branch is in a weaker position. The conventions on carrier liability, rights in aircraft and surface damage bind the Maldives internationally but have never been enacted by Parliament, so that their application in a Maldivian court depends on the terms of the contract before it and on the court's willingness to give effect to a treaty which has not been made national law.

We consider that Maldives should give the private air law conventions the force of law, extend the rules of the Montreal Convention 1999 to domestic carriage, and provide for the ratification and enactment of the Cape Town Convention. This would bring the private branch to the same footing as the public branch and give airlines, financiers, insurers and passengers the certainty which the treaties were designed to provide.

For more information, please contact:

Mr. Ahmed Murad, Senior Partner

Email: [email protected]