No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 20 January 2017
1 Is air law (or aviation law) a sufficiently different subject from other areas of the law to warrant categorization as a separate discipline? True, much of air law is a part of other areas of law and exists in a broader legal normative framework. Air law can be found in various areas of public law (e.g., constitutional law, administrative law, criminal law, antitrust, and labor law) and private law (e.g., torts, contracts, and property). To be an aviation (or air) lawyer, one needs to have a command of many of the established disciplines of law.
2 Stuart Banner, Who Owns the Sky?: The Struggle to Control Airspace from the Wright Brothers on 224 (2008).
3 Some dispute exists in the academic literature as to whether the proper term is “air law,” or “aviation law,” “aerospace law,” or even “aeronautical law.” This reviewer has used the terms air law and aviation law interchangeably. The term air law apparently was coined in 1902 by Ernest Nys of the University of Brussels a year before the Wright Brothers flew at Kitty Hawk, North Carolina. Michael Milde, International Air Law and ICAO 1 (2008).
4 See also Ronald I. C. Bartsch, Aviation Law in Australia 22–25 (4th ed. 2012). In one of the earliest casebooks addressing aviation law, the authors state:
In some instances, the business law of aviation does not differ from the legal principles encountered in the conduct of any other business. To that extent, then, any application of legal principles is simply “new wine in old bottles.” In other instances, a person in contact with aviation meets new legal problems not encountered in other types of business or covered in other texts or courses in law. Not only are there new and different problems, but the principles of law are also new. In such instances, we have “new wine in new bottles.”
Gerald O. Dykstra & Lillian G. Dykstra, The Business Law Of Aviation v (1946).
5 Jarvis, Robert M., Carl Zollman: Aviation Law Case book Pioneer, 73 J. Air L. & Com. 319, 320 (2008)Google Scholar (footnotes omitted).
6 I. H. Ph. Diederiks-Verschoor, An Introduction to Air Law 9–10 (6th rev. ed. 1997).
7 The unlawfulness of piracy is also a customary international law rule, though in aviation an elaborate conventional regime has been developed, beginning with the Tokyo Convention of 1963. See Convention on Offenses and Certain Other Acts Committed on board Aircraft (Tokyo Convention), Sept. 14, 1963, 20 UST 2941, 704 UNTS 219.
8 Convention on International Civil Aviation, Dec. 7, 1944,61 Stat. 1180, 15 UNTS 295 [hereinafter Chicago Convention].
9 Havel and Sanchez lament the “near-universal prohibition on States granting foreign airlines ‘cabotage rights,’ that is, the privilege to move passengers or cargo between two points within a single domestic territory” (p. 6). But, in fact, the entire European Union granted its carriers reciprocal air traffic rights, including cabotage, in 1992. Other states have granted cabotage rights to foreign airlines as well.
10 The “substantial ownership and control” requirements are found even in modern “open skies” bilateral air transport agreements. Typically, they give states the discretion to “withhold or revoke a certificate or permit to an air transport enterprise of another State in any case where it is not satisfied that substantial ownership and effective control are vested in nationals of a contracting State.” Chicago Convention, supra note 8, Art. I(5).
11 Later, the authors allege that airline nationality was a “post-Convention development” (p. 341). Not so. The transit and transport agreements, both of which included the “substantial ownership and effective control” clause, were negotiated at the same diplomatic conference that produced the Chicago Convention in 1944.
12 Article 7 of the Paris Convention of 1919 required that aircraft registered in a state must belong “wholly to nationals of such State.” It further provided: “No incorporated company can be registered as the owner of an aircraft unless it possesses the nationality of the State in which the aircraft is registered, unless the president or chairman of the company and at least two-thirds of the directors possess such nationality....” Convention on International Civil Aviation, Art. 7, Oct. 13, 1919, 11 LNTS 174, reprinted in 17 AJIL SUPP. 195 (1923) (no longer in force) [hereinafter Paris Convention]. In 1919, most airlines owned the aircraft that they flew; leasing did not become widespread until well after World War II. Hence, the Paris Convention effectively required airlines to be owned and controlled by the states that issued the operating licenses.
13 Paul Dempsey, Stephen, Nationality Requirements and Cabotage Restrictions in International Aviation: Sovereignty Won and Sovereignty Lost, in ‘Project 2001 Plus’—Global and European Challenges for Air and Space Law at the Edge of the 21St Century 129 (Hobe, Stephan, SchmidtTedd, Bernhard & Schrogl, Kai-Uwe eds., 2006)Google Scholar. Havel and Sanchez concede the point late in the book (p. 329).
14 Havel, for example, calls for elimination of what he describes as “the central legal pillars of the prevailing Chicago system of protective bilaterals—the principle of cabotage... and the nationality principle.... Until these pillars crumble, in the US and among its aviation trading partners, no authentic globalization of the international aviation system will be possible.” Brian Havel, In Search of Open Skies: Law and Policy for a New Era in International Aviation 5–6 (1997).
15 A “metal-neutral joint venture” is an intercarrier relationship for pooling costs and revenue in which neither airline cares which one actually transports the passenger to his or her destination.
16 Flags of convenience have created enormous problems in the maritime trade. See, e.g., Dempsey, Paul Stephen, Compliance and Enforcement in International Law—Oil Pollution of the Marine Environment by Ocean Vessels, 6 N.W.J. Int’l L. & Bus. 459 (1984)Google Scholar; Dempsey, Paul Stephen & Helling, Lisa L., Oil Pollution by Ocean Vessels—An Environmental Tragedy: The Legal Regime of Flags of Convenience, Multilateral Conventions, and Coastal States, 10 Denv. J. Int’l L. & Pol’y 37 (1980)Google Scholar.
17 The United States routinely waives the foreign ownership requirement if a liberal bilateral agreement is in place between all parties. For example, the United States looked the other way when Iberia obtained control of Aerolinas Argentinas in 1990, after Argentina signed an open skies bilateral agreement with the United States. The United States did not look the other way in 2005 when Richard Branson’s Virgin Nigeria sought to serve the United States, as, at the time, access to London Heathrow Airport was still limited to two U.S.-flag airlines. Similarly, the 1992 proposal of British Airways to gain effective control of US Air hit a shallow reef as bilateral negotiations between the United States and the United Kingdom stalled over opening Heathrow to more than the two U.S.-flag carriers authorized under the Agreement Concerning Air Services (Bermuda II), July 23, 1977, U.S.-UK, 28 UST 5367, as amended Apr. 25, 1978, 29 UST 2680, Dec. 27, 1979, 32 UST 524, Dec. 4,1980,33 UST 655, Feb. 20, 1985, May 25, 1989, and Mar. 11, 1994. The United States has waived the nationality requirements for airlines licensed in states that meet FAA Category I safety and security requirements and that conclude an “open skies” bilateral agreement with the United States. Hence, the presence of an ownership and control restriction can be an effective lever to pry loose concessions that would be unattainable absent formal renunciation of the bilateral agreement. de Leon, Pablo Mendes, A New Phase in Alliance Building; The Air France/KLM Venture as a Case Study, 53 Zeitschrift Für Luft—und Weltraumrecht 359 (2004)Google Scholar; Mendelsohn, Allan I., Myths of International Aviation, 68 J. Air L. & Com. 519, 524–26 (2003)Google Scholar; Isabelle Lelieur, Law and Policy of Substantial Ownership and Effective Control of Airlines 38 (2003).
18 “Coupled with defense and security considerations was a strategic trade component to the nationality rule: its applicability ensures that the concessions exchanged between two States cannot be captured by a third State not a party to the deal. This intended result is not dissimilar to the ‘rule of origin’ requirements in free trade agreements... “ (p. 89).
19 Deregulation guru Alfred Kahn described destructive competition as one of the unpleasant surprises of deregulation: “‘I talked about the possibility that there might be really destructive competition, but I tended to dismiss it and that certainly has been one of the unpleasant surprises of deregulation.’” Eldad Ben-Yosef, The Evolution of the US Airline Industry: Theory, Strategy and Policy 103 (2006) (quoting Alfred Kahn); see also Kahn, Alfred E., Airline Deregulation—A Mixed Bag, but a Clear Success Nevertheless, 16 Transp. L.J. 229, 248 (1988)Google Scholar (noting that “deregulation bears substantial responsibility” for the “dismal” financial performance of the airline industry post-deregulation); Dempsey, Paul Stephen, The Financial Performance of the Airline Industry Post-Deregulation, 45 Hous. L. Rev. 421 (2008)Google Scholar.
20 See Rynerson, Stephen D., Everybody Wants to Go to Heaven, but Nobody Wants to Die: The Story of the Transatlantic Common Aviation Area, 30 Denv. J. Int’l L. & Pol’y 421, 422–24 (2002)Google Scholar; Kass, Howard E., Cabotage and Control: Bringing 1938 U.S. Aviation Policy into the Jet Age, 26 Case W. Res. J. Int’l L. 143 (1994)Google Scholar; Havel, supra note 14, at 62. For a review of the safety and environmental problems created by “flags of convenience” in the maritime trade, see Dempsey, supra note 16, at 471 n.56.
21 For example, the United Arab Emirates heavily subsidizes its airlines to diversify its economy: “We want the UAE to sustain its drive toward economic diversification, as this is the nation’s surest path to sustainable development in a future that is less reliant on oil. This means expanding new strategic sectors to channel our energies into industries and services where we can build a long-term competitive advantage.” United Arab Emirates, UAE Vision 2021, sec. 3.2 (undated), at http://www.vision2021.ae/en.
22 See, e.g., Dempsey, supra note 19, at 432.
23 Chicago Convention, supra note 8, Art. 37.
24 ICAO, Chicago Convention Annex 16, vol.I(Aircraft Noise), effective Aug. 2, 1971, available at store 1.icao.int; ICAO, Chicago Convention Annex 17 (Security), effective Mar. 22, 1974, available at store 1.icao.int.
25 Chicago Convention, supra note 8, Art. 37.
26 Kyoto Protocol Article 2(2) provides, inter alia: “The Parties included in Annex I... shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively.” Kyoto Protocol to the United Nations Framework Convention on Climate Change, Art. 2(2), Dec. 11, 1997, 2303 UNTS 148, 37 ILM 22 (1998), available at http://unfccc.int/resource/docs/convkp/kpeng.pdf.
27 See Rosenfeld, Rachel F., Note, The European Union Aviation Directive and U.S. Resistance: A Dead lock on Aviation Emissions Control, 25 Geo. Int’l Envtl. L. Rev. 589 (2013)Google Scholar.
28 See also Bakker, Melle, Including Aviation in the European Union Scheme for Emission Allowance Trading: Stimulating Global Market-Based Measures, 80 J. Air L. & Com. 3, 8, 13 (2015)Google Scholar.
29 Actually, ICAO represents the interests of member states, which are often divergent from the interests of the airline industry.
30 According to the authors, ICAO’s “‘legislative’ effectiveness has been put in doubt by its inability to deliver a workable multilateral treaty to mitigate the aviation industry’s carbon footprint” (p. 188).
31 See Matte, Nicolas Mateesco, The Chicago Convention—Where from and Where to, ICAO?, 19(1) Annals Of Air & Space L. 371, 394 (1994)Google Scholar.
32 See, e.g., Dempsey, Paul Stephen, Compliance & Enforcement in International Law: Achieving Global Uniformity in Aviation Safety, 30 N.C. J. Int’l L. & Com. Reg. 1 (2004)Google Scholar; Jouannet, Emmanuelle, What Is the Use of International Law? International Law as a 21st Century Guardian of Welfare, 28 Mich. J. Int’l L. 815 (2007)Google Scholar; Alvarez, José E., Governing the World: International Organizations as Lawmakers, 31 Suffolk Transnat’l L. Rev. 591 (2008)Google Scholar.
33 Chicago Convention, supra note 8, Art. 33; see Paul Stephen Dempsey, Public International Air Law 74, 79 (2008).
34 Dempsey, supra note 33, at 90–101.
35 Chicago Convention, supra note 8, Art. 84.
36 Id., Art. 87.
37 Id., Art. 88. Havel and Sanchez maintain that the loss of voting power would jeopardize the interests of the delinquent state because, in promulgating SARPs, “new rules can take effect for every member State unless a majority of States rejects them” (p. 65). This analysis is rigidly doctrinal and ignores the practical reality. Though the Chicago Convention enables a majority of member states to veto a proposed SARP, they have never exercised it, and likely never will, in as much as proposed SARPs are circulated and vetted extensively for state comment, a process that can take two years or longer; only when a consensus is reached are they finalized with a two-thirds vote of the Council. See Dempsey, supra note 33, at 76.
38 Dempsey, Paul Stephen, Flights of Fancy and Fights of Fury: Arbitration and Adjudication of Commercial and Political Disputes in International Aviation, 32 GA. J. Int’l & Comp. L. 231, 271 (2004)Google Scholar.
39 See Assad Kotaite, My Memoirs: 50 Years of International Diplomacy and Conciliation in Aviation (2014).