Case comment：Civil Court of Thailand Red Case No.575-577/2547（The Legal Status of Standards and Recommended Practices in Thailand）
泰国民事法庭第575-577/2547号案例评析——标准和建议措施在泰国的法律地位
Lalin Kovudhikulrungsri(1)
The question on how the domestic sphere implements international law usually involves a treaty or a customary international law as two primary sources of international law. In Thailand, the attention is narrowly paid to the transformation of a treaty into legislation. Thai courts generally view international law as a question of fact that the court cannot know by itself, unlike a question of law.(2) The Civil Court Red Case No. 575-5772547 decided on 12 February 2004 is important because it declares the status of Standards and Recommended Practices（SARPs）. Therefore, even though is a judgment from a court of first instance, its significance lies on its content as the first judgment in Thailand mentioning this matter.
1. The facts
This case is a combination of three separate trials. The plaintiffs are insurance companies and, an airline company which is referred to in the case as the second plaintiff. The defendants are Airports of Thailand Public Company Limited（AOT）and an insurance company. The plaintiffs alleged that employees of the AOT were negligent because they failed to reduce the number of birds around an international airport. This negligence led to a bird strike on 4 December 1997, causing damage to the second plaintiff's aircraft.(3)
The plaintiffs, in order to prove that there was negligence, referred to Annex 14 to the Convention on International Civil Aviation（Chicago Convention）. The plaintiffs claimed that the International Civil Aviation Organization（ICAO）published measures regarding controlling and reducing the number of birds around an airport to prevent any accident from birds. The plaintiffs further argued that if any State party to the Chicago Convention deviated from these measures, such State party had to notify ICAO pursuant to Article 38 of the Chicago Convention.(4) According to the plaintiffs, the defendants neither complied with Annex 14 nor notified any difference to ICAO in writing.(5) Thus, the event of a bird strike on 4 December 1997 was not force majeure but preventable.(6)
The defendants refuted the plaintiffs’arguments with the following reasons. First, the AOT followed the instruction issued by the Thailand Institute of Scientific and Technological Research and ICAO SARPs.(7) Second, the measures claimed by the plaintiffs were in the Manual published pursuant to Recommend Practice 9.5.2 of Annex 14 and the status of the Manual was merely guidance.(8) Each airport authority in each State party could freely choose measures suitable for one's geography and types of bird in each location.(9) Third, the AOT had conducted a variety of measures to decrease the number of birds in an airport vicinity.(10) Fourth, the bird found from the bird strike accident was not a local bird of Thailand, and this type of bird had been seen in the north of Thailand only thrice in 64 years.(11) Yet, none had been found around the disputed airport.(12) Last, the second plaintiff did not inform the defendants after such claimed bird strike happened but notified almost a year later.(13) Accordingly, the defendant could not establish any investigation committee.
2. The judgment
The Civil Court, after weighing the evidence adduced by the plaintiffs and the defendants, found that the plaintiffs could not prove that the defendants failed to get rid of any birds in the airport vicinity. The ICAO Manual was not a regulation that the defendants had to strictly comply with.(14) Moreover, the Recommended Practice 9.5.2 of Annex 14 was a recommendation, and the defendants adopted and adjusted it to fit with the geography.(15)
3. Comment
From this case, there are two issues worth mentioning. The first one involves the legal status of SARPs in Thailand from a general viewpoint and a judicial one. The other point lies on duty to notify any departure from Standards.
3.1 Legal status of Annexes to the Chicago Convention
Thailand inclines to adherence to the dualist theory. As seen from the Constitution to the Kingdom of Thailand 2017, a treaty with certain conditions must be approved by the National Assembly before the conclusion of a treaty.(16) Nevertheless, the Constitution mentions only one source of international law, namely, a treaty. It does not include other sources and documents published by an international organization, another subject in international law.
3.1.1 Legal status of Annexes to the Chicago Convention in Thailand
From the dualist approach, Thailand has to pass a law or a regulation to implement SARPs. However, the transformation of English legal text and technical jargons into Thai national language requires not only time but also human resources. In the past, Thailand applied a simple short-cut method by adopting one sweeping regulation. In the past, the Regulation of the Civil Aviation Board No. 4（RCAB No. 4）played a role as the only regulation implementing all Annexes to the Chicago Convention. For example, Section 12 of the Regulation prescribes that for the matter concerning aerodrome, Annex 14 of the Chicago Convention and its revision shall apply.(17)
The RCAB No. 4 poses some limitations. First, there is no detail on obligations. Second, the public cannot directly access to SARPs unless they buy the publication. Third, even though Annexes to the Chicago Convention are made available, the ICAO official languages are not in Thai, an official language of the country. The following issue is the public cannot be assumed that they know the contents. Fourth, although some persons may be able to read SARPs, most SARPs assign duties to a State or an appropriate authority, not a private entity. On the contrary, the objective of the RCAB No. 4 is to govern private entities in the civil aviation industry. Thus, the reference technique used in the RCAB No. 4 cannot yield effective results in the long term.
The RCAB No. 4 is intended to use as an interim measure before more detailed regulations will be drafted. After there is a specific regulation implementing an Annex to the Chicago Convention, the relevant section in the RCAB No. 4 will be repealed. For example, the Regulation of the Civil Aviation Authority of Thailand No. 14 on Aerodrome Standards（RCAAT No. 14）was passed and superseded Section 12 of the RCAB No. 4.(18)
SARPs on wildlife hazard management in Annex 14 to the Chicago Convention are transposed into the RCAAT No. 14 as well.(19) The eighth edition of Annex 14 contains four Standards and one Recommended Practice on wildlife strike hazard reduction.(20) Similarly, the RCAAT No. 14 transcribes these SARPs into five sections. The only difference is the Recommended Practice 9.4.5 is reinforced into a regulation.(21)
3.1.2 Legal status of Annexes to the Chicago Convention from the Thai court's perspective
Thai court seldom has a chance to review the status of SARPs or Annexes to the Chicago Convention. The Supreme Court judgment no. 511/2542 decided in 1999 mentioned about Annex 2; however, in that case, the Court did not adjudicate about the status of the Annex.(22) The Court only adduce the Annex as evidence of the aircraft accident.
In this case, the Civil Court differentiated between Standards and Recommended Practices. While the plaintiffs claimed that the AOT failed to comply with Recommended Practice in Annex 14 and the Manual published under such Recommended Practice, the defendants rebutted that Recommended Practices has only persuasive power. The Civil Court agreed with this rebuttal. It further distinguished the State's obligation between Standards and Recommended Practices. For Standard, each State party owes a duty to comply with unless notifying to ICAO.(23) Unlike Recommended Practices, a State party can do its best and adjust the recommendation to fit with its environment and geography.(24)
It must be noted that the dispute happened when SARPs on bird strike are only Recommended Practices while as of 2019 they become four Standards and one Recommended Practices. Therefore, the Civil Court at that time decided based on the Recommended Practice status of the bird strike management.
3.2 Duty to notify any differences
In the case, the plaintiffs alleged that the AOT failed to notify ICAO about any difference. While it is settled in that case that there was no duty to notify since the reference was made to a Recommended Practice. The Court, hence, did not touch upon which authority is responsible for informing ICAO.
Under Article 38 of the Chicago Convention, an obligation to notify on any departure from Standards is placed to a State. This matter is underlined in any foreword of Annexes.(25) A State may delegate this obligation to its governmental agency such as its civil aviation authority or its ministry of foreign affairs. However, the AOT, the defendant in this case, is a public limited company established for profit earning. It was privatized in 2002. In other words, when the bird strike happened in this case, the AOT was a state enterprise known as the Airports Authority of Thailand. Nevertheless, even though it was a state enterprise, the duty to notify ICAO of any deviation did not belong to the Airports Authority of Thailand, but to the civil aviation authority at that time.
(1)Lalin Kovudhikulrungsri, Lecturer, Faculty of Law, Thammasat University, Thailand. LL. M.（Air and Space Law）McGill University; Ph. D.（Air and Space Law）Leiden University.
(2)Thai Civil Procedure CodeSection 142 A judgment or order of a Court disposing of a case shall decide on every claim in the plaint, but no judgment or order shall be given for anything in excess of or not included in such plaint, except that:...（5）in the case where a point of law involving public order could have been raised, the Court may, when it thinks fit, raise it for decision and give judgment accordingly.
(3)Civil Court of Thailand Red Case No. 575-577/2547, p. 2.
(4)Ibid., p. 9.
(5)Ibid., pp. 10,31.
(6)Ibid., p. 10.
(7)Ibid., p. 14.
(8)Ibid., p. 14.
(9)Ibid., p. 15.
(10)Ibid., p. 15.
(11)Ibid., p. 16.
(12)Ibid., p. 16.
(13)Ibid., p. 17.
(14)Ibid., p. 35.
(15)Ibid., p. 35.
(16)Constitution of the Kingdom of Thailand 2017, s 190.
(17)Regulation of the Civil Aviation Board No. 4, s 12.
(18)Regulation of the Civil Aviation Authority of Thailand No. 14 on Aerodrome Standards. Government Gazette Vol 136,19 June 2019, p. 8.
(19)Ibid., Part 4 Wildlife Strike Hazard Reduction.
(20)International Civil Aviation Organization, Annex 14 Vol 1,8th ed（July 2018）, 9.4.
(21)Supra note 17, s 1060.
(22)Supreme Court of Thailand Judgment No. 511/2542.
(23)Supra note 2, p. 35.
(24)Ibid., p. 35.
(25)For example, see supra note 19, foreword.