From here
Rwy20 wrote:
ICAO treaties, as international (read: between states) law, aren’t automatically or directly binding for a pilot unless a country has made a law that would say so.
Isn’t it rather that every ICAO rule is binding for all member states unless specific exemptions has been submitted from that state to ICAO. The AIP’s should have the pilot oriented ICAO exemptions. I have read somewhere that the total number of exemptions received by ICAO exceeded 11.000 years ago and that was one of the reasons to form EASA, because the ICAO way to harmonise the aviation world was not working well enough (and JAR was not binding).
Isn’t it rather that every ICAO rule is binding for all member states unless specific exemptions has been submitted from that state to ICAO.
Yes; but if a contracting state files a difference to ICAO, the others are not obliged to recognise it (but usually they do, in most because because they never noticed 
).
that was one of the reasons to form EASA,
EASA was formed to create a body which could issue Airbus airworthiness certificates, in the European geographic job creation spreading collaboration system where different bits were made around the place. Then the politicians saw an opportunity to do something bigger with it… 
EASA does not have an ICAO seat. ICAO told EASA they can have one if all the member states resign their seats, which of course they refused to do. So EASA controls these ICAO members (to de facto achieve an ICAO seat) via the EU directive system.
Nothing in ICAO is binding on anybody. The members just declare that they will respect the rules but the rules themselves are not binding on anybody.
ICAO is not a source of law.
Well, there is no international police. The only way of enforcing anything is a military invasion – ground sea and air. War is an integral part of foreign policy…
There is EU law which is above member state law and yet the EU doesn’t have an army that can invade a country. EU law is law. ICAO rules are not law, never designed to be law. It’s just a UN treaty like the Paris Climate Accord or whatever.
This is often a problem. Pilots try to defend themselves (in court) by pointing to ICAO rules but the answer is always the same: sorry but ICAO is not a source of law…
Pilots try to defend themselves (in court) by pointing to ICAO rules but the answer is always the same: sorry but ICAO is not a source of law…
Can you provide a reference or an example of this exact scenario?
There are many areas in aviation where there is no national regulation (or it is ambiguous) but there is an ICAO rule and the said country is an ICAO contracting state. Look at the long threads on e.g. homebuilt privileges where some countries have no regs at all on the topic. Unfortunately Mr EU-Sebohm “there are areas of aviation where there is no regulation, so we must create some” is not in his office anymore Also most of the smaller countries have bigger fish to fry…
Last year I had a fight with the German Federal Customs about an alleged infraction of the requirement to use a customs airport (they threatened me with a >20k€ fine) when landing in Germany. As part of my response, I pointed to applicable ICAO regulations. The response was as expected — they operate on basis of German and EU law and ICAO regulations do not have any legal significance so this part of my argument cannot be considered. In the end I won but not with ICAO.
There might a different approach in the UK legal system. The continental legal system is based on codified law and only that. ICAO regulations (as other UN treaties) are not part of the codified law. Pilots should not forget that.
I agree with achimha. International treaties are never directly applicable as law for individuals. Rather they bind the signatories to change their laws accordingly. EU law is different, it supersedes national law as agreed by the EU member states. AFAIK SERA is not EU law, however.
MedEwok wrote:
AFAIK SERA is not EU law, however.
It is a EU regulation (923/2012) and therefore directly applicable law in all EU member states, trumping pre-existing local law where there is a direct overlap. Only in associated countries like Switzerland and Norway, SERA had to be implemented in national law.
I believe the situation is as follows:
- ICAO laid down “principles and arrangements” for the contracting states.
- Each contracting state was obliged to create local laws, resulting in almost 99% following the agreed stuff in the ICAO convention and its Annexes, where applicable (ie not obliged to follow the recommended practices, but at least the standards).
- Each contracting state had to issue its exemptions to ICAO.
- Specifically for EASA, each state in EASA-land is now enforced to follow the EASA regulations (eg SERA) because they are law. If the state fails to adopt the law then the Commission may even refer the case to the European Court of Justice.
