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AVIATION LAW SUMMARY NOTES STUDY PERIOD 2, 2019 C HAPTER 1: W HAT IS I NTERNATIONAL AVIATION LAW? K EY POINTS : -

Three periods in the history of aviation, aircraft, and aviation law development before the year 1919 o

Before 1903

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o

1903 – 1913

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Wright Brothers – 17 Dec 1903

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Curtiss Golden Flyer

Post WW1

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Balloons

Destructive airpower & fears for security

The differences between international aviation law and domestic aviation law: Domestic aviation law is enforcable within the state – e.g. police International aviation law exists via an agreement (treaty) between 2+ states o

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Enforced by the willingness to follow the agreement

Paris convention 1919 o Convened 6 months after the first regular international commercial flights commenced in Europe. o First Multilateral treaty to come into force o Each state had "Complete and exclusive sovereignty over the airspace above its territory" o Introduced the concept of global technical uniformity – underpinning Chicago for airworthiness for airlines and competency certificates for pilots.

o Established the predecessor of ICAO: Commission Internationale de Navigation Ae'rienne o Cooperation & harmonization in technical matters, communication information on air navigation. o First internationally accepted definition of "aircraft": Airships, gliders, free balloons and helicopters included

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Airspace Sovereignty Air sovereignty is the fundamental right of a sovereign state to regulate the use of its airspace and enforce its own aviation law - in extremis by the use of fighter aircraft. The upper limit of national airspace is not defined by international law.

C HAPTER 2: T HE F OUNDATIONS OF PUBLIC INTERNATIONAL A VIATION LAW K EY POINTS : -

Public and Private Dimensions of Aviation Law Most of the content of international aviation law is generated by public international law: the legal system that governs the conduct of States and intergovernmental organizations. o

Public international law determines States’ control over the airspace above their territories, their duties and powers to prevent and punish crimes aboard or against aircraft, and the level of market access they provide to foreign air carriers.

o

Private international law is intended to convey the idea that when certain legally significant transnational events – a catastrophic aircraft accident or the financing of a Boeing aircraft.

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The Content of International Aviation Law International aviation law is comprised of the rules and regulations (whether domestic, bilateral, or multilateral in their origin) that affect global air transport. The fount of this body of law includes not only the widely recognized sources of international law, but also the national and supranational legal and political cultures of the world community of States.

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Cabotage rights o

The exclusion of foreign airlines from providing domestic point-to-point air services

o

Applied internationally through bilateral air service treaties

o

Stems from the Chicago Convention

"Each contracting state shall have the right to refuse permission to the aircraft of other contracting states to take on in its territory passengers mail and cargo carried for remuneration or hire and destined for another point within its territory"

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Open skies “Open skies” is an international policy concept that calls for the liberalization of the rules and regulations of the international aviation industry—especially commercial aviation—in order to create a free-market environment for the airline industry. Its primary objectives are:

o

To liberalize the rules for international aviation markets and minimize government intervention as it applies to passenger, all-cargo, and combination air transportation as well as scheduled and charter services; and

o

To adjust the regime under which military and other state-based flights may be permitted.

For open skies to become effective, a bilateral (and sometimes multilateral) air transport agreement must be concluded between two or more nations.

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Single EU aviation market All 28 member states enjoy all nine freedoms without restriction. Brexit: o

When the UK leaves the European Union (Brexit), the UK will not be part of the Common Aviation Area. The British airline EasyJet (which has many flights outside the UK) decided to set up a subsidiary in Austria (EasyJet Europe) whilst keeping its headquarters in Luton, England. Unless permission or new treaties with the UK are made, aviation to and from the UK may stop. However, the British government has taken various steps to ensure the continuation of air travel, such as an open skies agreement with the United States of America. 

Airlines such as EasyJet and RyanAir can open subsidiaries in Europe or renegotiate their ASA’s with EU member states, however their cabotage rights will likely cease, decreasing competition on intra-europe routes and surging ticket prices.

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Challenges remaining in Air Services Trade o

Capacity constraints Airport congestion is highly restrictive on increased services. LHR for example operates with two runways, with no potential for further growth. The surrounding area is densely populated suburbia in nature, restricting the growth even if the government permitted it. 

The remedial mechanisms include congestion pricing and slots This is where airports scale their takeoff and landing charges with their peaks in demand. Economically, airlines that value prime slots will be more inclined to pay more for the slot. For those that don’t, they will change their schedule or fly to another airport. The price is highly sensitive, so must be correctly matched to maximise effectiveness while maintaining airline business. 

An alternative to this is slot mechanisms. This is the authority to take off or land at an airport during a specific time. These have subsequently become a commodity within the EU as airports are working to capacity. Forfeitures and dissolving routes are redistributed to open access to the aerodrome.

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The issue of state compliance

States that choose to not comply suffer immediate economic and other consequences that cannot be easily remedied. Member states are required to inform ICAO when a violation occurs, although the Chicago Convention does not disclose a penalty for this.

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The role of treaties in international aviation law It should come as no surprise, then, that treaties are the largest and most important source of international aviation law. Take for example, the Chicago Convention. It contains universal rules covering airspace sovereignty, aircraft registration and airworthiness, navigation, and global Standards and Recommended Practices (SARPs) for technical and safety harmonization. Multilateral agreements, some negotiated under the auspices of ICAO, cover areas as diverse as aviation security, aircraft financing, and the liability of air carriers to their passengers and cargo shippers.

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Chicago Convention “The cornerstone instrument of public international law is the 1944 Convention on International Civil Aviation popularly known as the “Chicago Convention” in honor of its birthplace” Why has the Chicago Convention been so successful? o

In most respects the Chicago Convention was a reaffirmation of “the international legal principles” developed 25 years before at the Paris Convention

o

The Chicago Convention laid the foundation for the standards and procedures for peaceful global air navigation. It set out as its prime objective the development of international civil aviation “…in a safe and orderly manner”, and such that air transport services would be established “on the basis of equality of opportunity and operated soundly and economically.”

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The Chicago Convention also formalized the expectation that a specialized International Civil Aviation Organization (ICAO) would be established, in order to organize and support the intensive international co-operation which the fledgling global air transport network would require.

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The Convention doesn't impose burden on states to produce a public good for their citizens. No obligation to provide an amount of international air services

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Willingness to comply with duties or requests in the convention are supported by the low costs in relation to the benefit the state will receive - I.e. international air transport services for its citizens.

C HAPTER 3: T HE I NTERNATIONAL LAW REGIME FOR T RADE IN AIR S ERVICES K EY POINTS : -

ICAO and 19 Annex, SARPs What is ICAO? The official U.N. intergovernmental agency charged with “developing the principles and techniques of international air navigation and fostering the planning and development of international air transport” so as to: o

Ensure the safe and orderly growth of international civil aviation throughout the world;

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Encourage the arts of aircraft design and operation for peaceful purposes;

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Encourage the development of airways, airports and air navigation facilities for international civil aviation navigation;

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Meet the needs of the people of the world for safe, regular, efficient and economical air transport;

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Prevent economic waste caused by unreasonable competition;

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Ensure that the rights of contracting States are fully respected and that every contracting State has a fair opportunity to operate international airlines;

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Avoid discrimination between contracting States;

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Promote safety of flight in international air navigation;

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Promote generally the development of all aspects of international civil aeronautics.

What are SARPS? The Standards and Recommended Practices. ICAO is responsible for developing and updating Chicago’s annexes with SARPs for: o

Air traffic management

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Aircraft and personnel licensing

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Airport operations

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Aeronautical information services

These can be amended or added to via the Council with a two-thirds majority vote of its membership. These take effect after 3 months if not specified otherwise.

Standard: Uniform application is recognized as necessary for the safety or regularity of international air navigation. Requires notification of differences Recommended Practice: Uniform application is recognized as desirable in the interests of safety, regularity or efficiency of international air navigation. Contracting States should endeavor to conform

Annex 19 Developed by ICAO, the International Standards and Recommended Practices (SARPS) contained in the nineteen Technical Annexes to the Convention on International Civil Aviation (also called Chicago Convention) are applied universally and produce a high degree of technical uniformity which has enabled international civil aviation to develop in a safe, orderly and efficient manner.

1. Personnel Licensing 2. Rules of the Air 3. Meteorological Service for International Air Navigation 4. Aeronautical Charts 5. Units of Measurement to be Used in Air and Ground Operations 6. Operation of Aircraft 7. Aircraft Nationality and Registration Marks 8. Airworthiness of Aircraft 9. Facilitation 10. Aeronautical Telecommunications 11. Air Traffic Services 12. Search and Rescue 13. Aircraft Accident Investigation 14. Aerodromes 15. Aeronautical Information Services 16. Environmental Protection 17. Security – Safeguarding International Civil Aviation against Acts of Unlawful Interference 18. Safe Transport of Dangerous Goods by Air 19. Safety management

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IGOs and NGOs, for example, IATA, AEA, ALTA, FAA, A4A, WTO, ASEAN, AU Intergovernmental Organisations (IGOs) and Nongovernmental Organisations: IATA: International Air Transport Association

AEA: Association of European Airlines ALTA: Latin American and Caribbean Air Transport Association FAA: Federal Aviation Authority A4A: Airlines for America WTO: World Trade Organisation ASEAN: Association of South East Asian Nations AU: Australia

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Freedoms of the Air (Aviation trade agreements)

1st

The right to fly over a foreign country without

EK441 ADL – DXB flies over India

landing. 2nd

3rd

The right to refuel or carry out maintenance in a

A flight from the United States to the

foreign country without embarking or

Netherlands, flown by a Dutch airline,

disembarking passengers or cargo.

refueling at an Irish airport.

The right to fly from one's own country to another NZ99 AKL - NRT country.

4th

The right to fly from another country to one's

NZ90 NRT – AKL

own. 5th

The right to fly between two foreign countries on

EK205 – DXB – MXP – JFK

a flight originating or ending in one's own country. 6th

The right to fly from a foreign country to another

Air Tahiti Nui's TN102 AKL-(PPT)-LAX

while stopping in one's own country for nontechnical reasons. (Modified)

The right to fly between two places in a foreign

A flight between two airports in the United

6th

country while stopping in one's own country for

States, flown by an airline based in Canada,

non-technical reasons.

with a full stop in Canada.

The right to fly between two foreign countries,

A flight between Portugal and Germany, flown

where the flights do not touch one's own country.

by an Aer Lingus

7th

The right to fly inside a foreign country,

8th

Cathay Pacific: MEL – ADL - HKG

continuing to one's own country. 9th

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The right to fly within a foreign country without

A flight flown between Auckland and

continuing to one's own country.

Christchurch by an Australian airline.

Air service agreement (ASA) and Nationality rule What are ASAs? Air Service Agreements (ASAs) grant party's airlines the privilege to carry passengers, cargo or a combination of both to points to, from, over or beond their respective territories. These market access privileges (AKA traffic rights) have been subject to protectionist conditions including restriction of flight frequencies, capacities and pricing.

What is the nationality rule for airlines? An airline must be substantially owned (and often also effectively controlled) by its home State (or by the citizens of that State) before it is eligible to perform international air services under that State’s ASAs.

What does the nationality rule prevent airlines from doing? The world’s airlines are effectively barred from fully accessing global equity markets, from establishing foreign subsidiaries, and from consummating cross-border mergers. The nationality rule prevents airlines “from doing business like any other business.” t

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Bermuda I and II: Bilateral air transport agreement The Bermuda I agreement was one of the first ATA's following WWII, signed in 1946 by the UK and US. This agreement became a model for agreements to follow in future as it contained the first five freedoms of the air on agreed routes, multiple designated airlines, and no capacity or frequency limitations.

This was replaced by the Bermuda II agreement which the US was essentially forced by the UK to sign in 1977, effective in 1978. It represented a reversal of liberalism and generated public outcry in the US. Notably, the fifth freedom rights were withdrawn here. This remains in force to this date

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Multilateralism An alliance of multiple countries pursuing a common goal.

What are some key regions that have tried to form multilateral air markets? The EU-U.S. Open Skies Agreement was one of the most significant open skies agreements concluded in recent years, applying to civil aviation traffic between two of the world's three largest markets. The ASEAN reached liberalisation in 2010

C HAPTER 5: T HE I NTERNATIONAL LAW REGIME FOR A VIATION SAFETY AND SECURITY K EY POINTS : -

Tokyo convention Effective at the end of 1969, ultimately inadequate vehicle to address aviation security offences. The treaty focusses on penal offenses amongst others that endanger the safety or discipline on board a flight while in flight. Hence, the PIC is bestowed with near-plenary rights to restore order. It’s important to note, offences committed due to political motivation did not require prosecution and extradition policies were non-existent. Hence, if the home state of the offender chose not to persecute, the airline’s state and flight origin state are unable to persecute the offender, rendering this convention flawed.

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Warsaw Convention First signed into effect in 1929, the Warsaw Convention provided the first set of rules for the budding industry of international commercial aviation. Because the Convention’s rules were amended at The Hague in 1955 and Montreal in 1975, some courts viewed the original convention as a separate entity from the following two amendments. The original convention set in place several guaranteed rights that all travellers have come to appreciate today. The Warsaw Convention set the standard to issue physical tickets for all air travellers, and the right to baggage

check tickets for luggage trusted to airlines for delivery at a travellers’ final destination. More importantly, the Warsaw Convention (and the subsequent amendments) set damages for travellers in the event of the worst case scenario. The Warsaw Convention set the benchmark for liability that airlines had for luggage in their care. For signatory countries of the Convention, airlines operating in those countries were liable for 17 Special Drawing Rights (SDR) per kilogram of checked luggage lost or destroyed. This would be later amended in Montreal to add $20 per kilogram of checked luggage lost or destroyed for those countries that did not sign on with the 1975 amendments. In order to receive money guaranteed by the Warsaw Convention, a claim must be brought forward within two years of the loss. In addition, the Warsaw Convention created the standard for personal injury suffered by travellers as a result of an aviation incident. Those passengers injured or killed while flying on a common air carrier could be entitled to a maximum of 16,600 SDR, convertible to their local currency.

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Montreal Convention In 1999, the Montreal Convention replaced and further clarified the protections offered travellers by the Warsaw Convention. As of January 2015, 108 members of the International Civil Aviation Organization have signed on to the Montreal Convention, representing over half of the United Nations organization’s membership. Under the Montreal Convention, travellers are granted additional protections under the law, while extending certain rights to airlines. Airlines operating in nations that have signed on to the Montreal Convention are obligated to carry liability insurance and are responsible for damages that arise...