Aviation and Aerospace Laws of Dubai and the UAE
On 17 July 2014 Malaysia Airways flight MH17 was shot down over Ukraine during a flight from Amsterdam to Kuala Lumpur in an act of suspected terrorism. On 5 December 2014 executive Heather Cho forced a Seoul-bound Korean Air plane to taxi back to gate at New York’s JFK airport to unload the chief steward in the infamous “nut rage” incident, which has since resulted in a custodial sentence. On 28 December 2014 AirAsia flight QZ8501 crashed into the Java Sea in poor weather conditions whilst midway through an unlicensed flight from Indonesia to Singapore. On 27 January 2015 Dubai International Airport was officially declared the world’s busiest international airport, overtaking London’s Heathrow for the first time in the history of commercial air travel. It appears, then, that 2014-2015 has already proven to be an eventful period for the aviation industry. The above examples alone accentuate that aviation and its associated incidents engage a variety of legal concepts, thus rendering aviation law a prevalent topic of discussion.
The problem with aviation law is that airplanes rarely stay in one place for long. Whereas their constant transience is clearly a requirement for the holiday-maker (I for one wouldn’t be very happy if I got on a plane and it didn’t go anywhere), it causes complications for aviation lawyers. The fact that airplanes are constantly moving between jurisdictions makes the applicable law at any given time difficult to ascertain – for example, a flight from Dubai International airport to London’s Heathrow will cross the airspace of approximately 13 different jurisdictions, whilst additionally flying over international waters. So which law will apply to the vehicle and its passengers? That of the country of origin, the country of destination or the country directly beneath the aircraft at any given time?
Whilst all of these are pertinent questions, it is perhaps diligent to walk before we run – or taxi before we fly, as the case may be. That is to say, before examining the technicalities of international aviation law, we should first understand the legislation in place within our own jurisdiction. The UAE’s principle provisions on such matters may be found in Federal Law Number 20 of 1991 (the Civil Aviation Law), Federal Law Number 4 of 1996 (the Aviation Authority Law) and Federal Law Number 20 of 2001 (amending the Aviation Authority Law). Ranging in scope and covering a plethora of areas of law (including but not limiting to jurisdiction, licensing requirements and conditions of carriage), the Civil Aviation Law applies to aircraft operating or registered in the UAE, air traffic control, communications and civil airports. The Aviation Authority Law establishes the General Civil Aviation Authority (GCAA), designated to oversee compliance with the Civil Aviation Law whilst accentuating concepts of safety and security. With exclusive authority over the UAE’s aviation industry, the GCAA was formed in order to advance and strengthen the same in the modern era of commercial air travel.
Yet it is clear from the name of the statutes alone that such provisions pertain to CIVIL aviation – that is to say, aviation within the remit and control of the state. It therefore does not go so far as to provide answers to our earlier question with regards to jurisdiction during international transit. Such queries with regards to sea transport are easily answered, with the basic provisions of shipping law stating that the laws of the territory in whose water the ship is located at any given time will apply, with the jurisdiction being that of the ship’s country of registration when in international waters. But shipping law has developed over a period of centuries, with the seas open to less ambiguity than the skies. So to which law should we turn in terms of aviation? It is a globally-acknowledged principle of aviation law that aircraft, like ships, are subject to the jurisdiction of the nation in which they are registered. Therefore although there is no specific law which states “our laws apply on our aircraft when they are in the air”, UAE-registered carriers are considered as UAE soil when in flight, and as such the UAE law will apply thereon. Let us consider the following examples:
1. In June 2014 a British man was jailed in Dubai for sexually assaulting an air hostess on an Emirates Airline flight from Bangkok to Dubai; and
2. In January 2010 three men were arrested at London Heathrow Airport on suspicion of terror-related offences whilst on board a Dubai-bound Emirates flight which was prepared for take-off.
In the first example, there appears to be little to no controversy. Although the vast majority of countries uphold a provision similar to that of Article 2 of the Civil Aviation Law, namely that “The State exercises complete and absolute sovereignty over the aerial space above its territory” (thus having the effect that UAE law applies in the airspace above the UAE), it is highly unlikely that the state within whose airspace an offence occurs will have any knowledge of the same, and even less likely that the nation would consider investigation and prosecution of the same within its best interests (some countries even decline jurisdiction over matters occurring on foreign aircraft in their airspace. This includes the UAE - Article 18 of the Federal Law Number 3 of 1987 (the Penal Code) specifically provides that “this law shall not apply to crimes committed on board foreign aircraft in the State's air space”). As the Emirates aircraft in this example was registered in the UAE, and the UAE was the first jurisdiction in which it touched down after the commission of the offense, it followed that the UAE law was applicable in the circumstances. Although the plane had taken off from Bangkok, the fact that the craft was in the air at the time of the offense and its country of registration were the only relevant factors when determining jurisdiction. Any Thai law on the matter was, therefore, inapplicable.
But at what point during the journey did the Thai law give way to the UAE law? At what point was the passenger in question no longer subject to the jurisdiction of Thailand, but to the jurisdiction of the UAE? Was it when he stepped onto the aircraft? Was it when the aircraft doors closed? When was the plane disconnected from the terminal? As it taxied down the runway? When its wheels left the ground? How about when it was a certain distance above sea level? Or when it cleared Thailand’s airspace? In our second example, the aircraft in question was, again, an Emirates Airline plane registered in the UAE. Although ready to depart, it had not yet begun to taxi or take off, and the passengers thereon were as such still considered to be subject to the jurisdiction of the UK (specifically, England and Wales).
Of course, given the nature of the suspected offenses in this example, the emergency intervention was required and the ambiguity surrounding jurisdiction was not called into question. However in general the UK has clear legislation regarding the scope of its jurisdiction with regards to aircraft, with section 92(2C)(4) of the Civil Aviation Act 1982 (as amended) (CAA) stating that “the period during which an aircraft is in flight shall be deemed to include any period from the moment when power is applied for the purpose of the aircraft taking off on a flight until the moment when the landing run (if any) at the termination of that flight ends” - likewise, Article 56 of the Civil Aviation Law provides that “The plane is considered in flight at any time beginning with the moment its outside doors are closed after all the passengers have boarded until the moment any of its outside doors is opened in order that the passengers get off it”. Jurisdiction was, therefore, technically ambiguous and unclear in our example – yet in all cases, safety and security are overriding interests, and thus international cooperation is strongly relied upon. Yet it is of note that in other incidents, the overlap in the definition is such that the UAE and UK could both claim (or both denounce) jurisdiction in a particular case. What would happen, for example, if an offense occurred whilst an Emirates plane taxied towards Heathrow’s runway? The plane would clearly still be on UK soil – yet as the doors would be closed, the UAE definition of “in flight” would be satisfied, thus meaning that the UAE could technically claim jurisdiction. However, according to the UK law, the craft would not yet be in flight. And what if an offense occurred on board a UK-registered British Airways flight as it taxied towards a terminal at Dubai International airport after landing? As it would have finished its landing run, it would no longer be classed as “in flight” according to the CAA, and thus the UK no longer has jurisdiction – however as the doors would not yet be open, the UAE has no jurisdiction as per the Civil Aviation Law. In such a case the burden of proving that a particular state has no jurisdiction over a matter would fall upon the suspect’s defense team.
In our above examples, both of the aircraft in question were registered in the UAE, were under the operation of Emirates Airlines (the UAE’s national carrier) and were travelling to the UAE. Our jurisdictional debate so far, then, has only considered two factors in an international voyage – the country of departure and the country of origin. But what if an airline is in fact operating a craft registered in another nation? Or what if a flight is in transit, touching down temporarily in a foreign jurisdiction? This latter question will depend entirely upon the laws of the foreign jurisdiction at hand. Passengers on a plane stopping temporarily in the UAE, for example, will be subject to UAE law from the moment the doors are opened to allow them to disembark, pursuant to Article 56 of the Civil Aviation Law. However in the UK the national law will apply from the time that the plane reaches the end of its landing run. With regards to the operation of a foreign carrier by a national airline, the UAE law remains conspicuously silent. On the contrary the CAA specifically confers to the UK rights of jurisdiction over “British-controlled” aircraft, with Section 92(2C)(5) defining the same (somewhat convolutedly) as being any aircraft which is:
a) for the time being registered in the United Kingdom; or
b) not, for the time being, registered in any country but in the case of which either the operator of the aircraft or each person entitled as owner to any legal or beneficial interest in it satisfies the following requirements, namely—
1) that he is a person qualified to be the owner of a legal or beneficial interest in an aircraft registered in the United Kingdom; and
2) that he resides or has his principal place of business in the United Kingdom; or
c) for the time being registered in some other country, and is for the time being chartered by demise to a person who, or to persons each of whom, satisfies the requirements aforesaid.
And paying further consideration to stop-overs (for example, long-haul flights which involve touch-downs) or connecting flights, both the UK and UAE laws afford jurisdiction over matters which have occurred in transit on foreign carriers over any airspace when the UK/UAE is the first country in which the plane lands thereafter.
As discussed earlier, the international dimension of modern commercial air travel is such that international cooperation must be relied upon in order to ensure smooth operation of the industry as a whole. To this effect, several international treaties are in place so as to assist in the various complications which may arise with regards to incompatible national laws. For example the Tokyo Convention, a treaty effective as of December 1969 with 185 signatory nations to date, confers powers and responsibilities in matters of “Offences and Certain Other Acts Committed On Board Aircraft”, whereas the Montreal Convention (effective since 2003 with 111 signatory nations at present, including the UAE) considers the apportioning of damages payments with regards to injury to passengers and loss of or damage to luggage and cargo. But whilst taking measures towards the adaptation of a singular international approach, the signing of such treaties is voluntary. Therefore in addition to the aforementioned considerations concerning the applicable jurisdiction on board an aircraft, we must also consider whether the jurisdictional nation is a member of any convention which will dictate its approach in the specific circumstances.
It, therefore, seems reasonable to conclude that “it’s complicated”, with national laws, international treaties and jurisdictional ambiguities all aspects of consideration. The operational carrier, country of registration and jurisdictional location of the aircraft at the time of any given incident may all be relevant – consider the baby born on a Northwest Airlines flight from Amsterdam to New York to a Ugandan mother over Canadian airspace on 1 January 2009! Given the complexity and wide scope of factors at hand, the overriding approach adopted by all competent authorities internationally seems to be the same as that employed by baggage handlers. Case by case…
 This article pays full consideration to the Civil Aviation (Amendment) Act 1996 and incorporates the provisions thereof.