General Principles for Creation of an “International Interest” in an Aircraft Object within Frame of Cape Town Convention

Cape Town Sözleşmesi Hükümleri Çerçevesinde “Uluslararası Teminat” Oluşturulmasına İlişkin Genel Esaslar

Melda TAŞKIN

Cape Town Convention which entered into force in 2006 and aims to facilitating the financing of high valued mobile equipment, prescribes a number of principles related to creation of an international interest in an aircraft object. Turkey approved both Convention and Aircraft Protocol. So, examination of these principles of Convention and Protocol in comparison with the provisions of Turkish Civil Code and Turkish Civil Aviation Act is so crucial.

Cape Town Convention, Aircraft Protocol, International Interest, Aircraft Object.

2006 yılında yürürlüğe giren ve esasen hava araçlarının da arasında bulunduğu bazı yüksek değerli taşınırların finansmanını kolaylaştırmayı amaçlayan Cape Town Konvansiyonu, hava aracı nesneleri üzerinde “uluslararası teminat” ihdasına yönelik bazı esaslar getirmektedir. Türkiye’nin de Cape Town Sözleşmesi’ne ve Hava Aracı Protokolüne taraf olması karşısında, Sözleşme ve Protokolde yer alan ve hava aracı üzerinde teminat tesis edilmesine ilişkin bu esasların Türk Medeni Kanunu ve Türk Sivil Havacılık Kanunu’nda yer alan hükümler ile karşılaştırmalı olarak incelenmesi büyük önemi haizdir.

Cape Town Konvansiyonu, Hava Aracı Protokolü, Uluslararası Teminat, Hava Aracı Nesnesi.

Introduction

High value of aircraft objects makes acquisition of this movables more difficult. A diplomatic conference assembled in Cape Town - on the 16th November 2001, with the intent of “facilitating the financing of the acquisition and use of such equipment in an efficient manner”, and fulfillment of “both the need to ensure that interests in such equipment are recognised and protected universally and need to establish a legal framework for international interests in such equipment and for that purpose to create an international registration system for their protection”. This Convention and Protocol which entered into force in 2006, has been approved by a wide number of governments in a short span of time and Turkey is one of these countries which has approved botht the Convention and Aircraft Protocol.

As it is known, in Turkish law, general principles of creating an interest on an aircraft are regulated under Turkish Civil Code (TCC)¹ and Turkish Civil Aviation Act (TCAA).² Beside this, Cape Town Convention and Aircraft Protocol also prescribe a number of provisions related to creating an interest in an aircraft object. However, the way of creating an (international) interest according to Cape Town Convention and Protocol differs by the system in TCC and TCAA. Art. 90 / 5 of Constitution of Republic of Turkey determines that, “International agreements duly put into effect have the force of law and in the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail”. Art. 68 / A of TCAA also sets forth that while the laws and Convention / Aircraft Protocol concerns different provisions on the same matters, the provisions of Convention and Aircraft Protocol will prevail. These provisions increase the importance of Convention and Aircraft Protocol and especially when wide attendance of governments to the Convention and Protocol is taken into consideration, review of conditions for creation of an “international interest” becomes so crucial. So in this study, general principles for creation of an “international interest” will be examined in comparison with the related provisions of TCC and TCAA.

I. Historical Development of Convention

On the 16th November 2001, a diplomatic conference assembled under the guidance of ICAO³ and UNIDROIT⁴ with the participation of 53 countries, including Turkey, in Cape Town - South Africa. As a result of this conference “Cape Town Convention on Internatıonal Interests in Mobile Equıpment”⁵ and “Protocol to The Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment”⁶ to take the place of Geneva Convention,⁷ ,⁸ After the Convention concluded, two more related Protocols⁹ which the first one is about the railway Rolling stock¹⁰ and the other one is about space objects, adopted; but neither the Protocol for Railway Rolling Stock nor the Protocol for Space Objects have entered into force.¹¹