Ruwantissa Abeyratne. Aeronomics and Law. Fixing Anomalies

Transcription

1 Aeronomics and Law

2 .

3 Ruwantissa Abeyratne Aeronomics and Law Fixing Anomalies

4 Ruwantissa Abeyratne Organization (ICAO) International Civil Aviation Montreal Québec Canada ISBN ISBN (ebook) DOI / Springer Heidelberg New York Dordrecht London Library of Congress Control Number: # Springer-Verlag Berlin Heidelberg 2012 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (

5 Preface At the base of the trouble with air transport is the Convention on International Civil Aviation (Chicago Convention) of 1944, or, to put it more accurately, the way it has been understood and applied. The intent of the forefathers of the Convention was to promote air transport and not to stultify it. They intended the Convention to solve unforeseen issues as they arose, such as the deleterious effects of aircraft engine emissions, through existing provisions or additions to the Convention. So far only a few such instances have been addressed and a few revisions incorporated. At the core of the problem lies a certain insouciance on the part of the aviation community and a reluctance to ruffle the feathers of an aged instrument that should mature with time and change if its invaluable utility is to continue. In Chap. 1 of this book, I discuss the anomalies in the regulatory structure of air transport with particular emphasis on the Chicago Convention and some issues that may have caused the problem. Fundamentally, there is nothing wrong with the Chicago Convention. In fact, it is a visionary document that has shown direction and a way forward for air transport. The fault lies in the perception by Contracting States of the various provisions of the instrument and the tendentious manner in which those provisions have been interpreted for individual benefits and interests. This has led to air transport economics always being unique compared to economics of other modes of transport. The normative foundation of air transport has been built on the myopic delusion that air transport and the sovereignty of States are inextricably linked by an immutable construct of protectionism, and that airlines have to be substantially owned and effectively controlled by nationals of the States in which they are registered. The latter condition has neither been defined in any air law instrument nor entrenched in the Chicago Convention which was signed in 1944 and which lays down the overall principles pertaining to air navigation and air transport. This anomaly has compelled commercial air carriers, in the absence of their ability to attract foreign capital and equity, to perform elusive practices to circumvent collapse. Mergers, alliances, code sharing and franchising are some of the tools used by air carriers to maximise capacity and optimise market access. The accessibility to foreign direct investment by airlines warrants serious discussion and v

6 vi Preface consideration if the airlines were to be treated like any other business and if passengers are to gain access to regular, efficient and economical air transport as prescribed by the Chicago Convention. In Chap. 2, I discuss the three obstacles preventing FDI in air transport and examine the need for encouraging FDI in the industry. I also address the legal safeguards that would be available to foreign investors in the instance of such liberalization and conclude that the international community should take a serious look at this anomaly from a consumer-protection perspective. Another grave lacuna in the current air transport scenario is the lack of attention paid to the carriage by air of cargo. Chapter 3 covers this aspect. A further troubling issue in air transport is the lack of global principles on aircraft engine emissions. This has prompted States to go their different ways and lose sight of the compelling need to arrive at an acceptable global structure and direction towards investing in the mitigation of aircraft engine emissions in a meaningful manner. This aspect is discussed in Chap. 4, particularly how States muddle through the concept of a global fuel tax on aviation to mitigate aircraft engine emissions. Chapter 5 discusses the importance of focusing on the rights of the passenger, his right to accurate information, timely travel and other entitlements. Chapter 6 is dedicated to a discussion on the disabled passenger. Chapter 7 is about ICAO and its meaning and purpose in air transport. It has been an exceptional United Nations Agency and the service it has provided to the aviation community over the past 65 years has been outstanding. However, the Organization has been over-cautious in its mission and vision statements, as I elaborate in this chapter. Arguably the most troubling issue for air transport is that the Chicago Convention identifies the aims and objectives of ICAO as to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport, making it clear that ICAO has no authority to develop principles of air transport as it can in the area of air navigation. Despite this theoretical obstacle, ICAO has performed in an outstanding manner in educating the aviation community on the economics of air transport. This has helped States to charter their own economic policies on air transport. In the concluding chapter, I indulge in a discussion on what should be done to ensure the objectives of the Chicago Convention and the sustainability of the air transport product and what measures one might take to improve the various disadvantages faced by air transport. Montreal Ruwantissa Abeyratne January 2012

7 Contents Anomalies in the Regulatory Structure... 1 Terminology of the Chicago Convention References Anomalies in Airline Economics Introduction FDI in Air Transport Legal Protection of the Investor Nationality of Aircraft Principles of Registration Registration of Aircraft Flags of Convenience Leasing of Aircraft References Air Cargo Liberalization of Air Cargo Market Access ICAO Initiatives Multimodal Trade References Mitigating the Effects of Aircraft Engine Emissions Introduction Mitigating the Effects of Aircraft Engine Emissions Carbon Trading and Carbon Offsetting The European Emissions Trading Scheme The Trading Mechanism The Global Fuel Tax on Aviation: A Deficit of Judgment The AGF Report References vii

8 viii Contents Rights of the Passenger The Passenger Rights of the Passenger ICAO Initiatives Other Initiatives Commercial Issues Involving Passenger Rights Flight Information at Airports References Rights of the Disabled Passenger Regulatory Provisions International Perspectives Action Taken by the United Nations Incorporation of the Convention in Domestic Legislation EC Regulation No. 1107/ United States Legislation References ICAO as the Global Forum for Air Transport The Council of ICAO The Council and Security Audits The Council and Safety Audits Functions of the Council in Ensuring Safety ICAO s Current Role References Conclusion Reference Appendix Index

9 Table of Cases A Air India v. Wiggins [1980] 1WLR 815t 819; 77 ILR 276 at 27, 77 B Ballet v. Mingay [1943] 1.K.B. 281, 43 Barras v. Aberdeen Steam Trawling Co. Ltd. [1933] AC 402, 140 Beecham Foods Limited v. North Supplies (Edmonton) Ltd., [1959] 1 WLR 643, 43 Branno v. Ministry of War, decision of 14 June 1954, 150 Burns Philp & Co. Ltd. v. Nelson and Robertson Proprietaries Ltd. ( ) 98 CLR 495, HC of A, 140 C Commission v. Council (European Road Transport Agreement) [1971] ECR 273, 169 CSOB v. Slovakia, 5 ICSID Reports 335, 23 E Ellerman v. Murray [1931] AC 126 at 147 per Lord Tomlin, 140 F Felix v. Venezuela, 37 ILM (1998) 1378, 24 France v. Great Britain, Muscat Dhows Case (1916) Hague Court Reports 93, 31 G Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 137 H Hartford Fiore Insurance Company v. California, 113S. Ct (1993) per Souter J., 78 Hedley Byrne v. Heller & Co [1964] A.C. 465, 125 Hercules Management Ltd. v. Ernst & Young [1997] 2 S.C.R. 165, 128 Holmes v. Bangladesh Biman Corporation [1989] AC 1112 at 1126, 77 ix

10 x Table of Cases J Joe Mining v. Egypt, 19 ICSID Review-FILJ (2004) 486 para. 63, 23 L Laker Airways v. Sabena 731F.2d 909 (1984), 78 Lang v. Brown (1898) 34N.B.R. 492, 43 Lauritzen v. Larsen, 345 U.S. 571 (1953), 31 LG&E v. Argentina, Decision on Liability 3 October 2006 at para. 158, 24 Lopez v. Jet Blue Airways, No cv (2d Cir. Dec. 1, 2011), 145 M Mannington Mills v. Congoleum Corporation, 595F.2d 1287 (1979); 66 ILR, 487, 78 McAlister (Donoughue) v. Stevenson [1932] A.C. 562See also Fleming, The Law of Torts, 5th ed. (1977), 176, 128 McKay-Panos v. Air Canada [2006] F.C.J. No FCA 8 Docket A , 136 Micron Construction Ltd. V. Hong Kong Bank of Canada, (2001) 184 D.L.R. (4 Th) 75 (B.C.C.A.), 127 Mihaly v. Sri Lanka, 17 ICSID Review-FILJ (2002) 142, para. 61, 23 Muscat Dhowns case and Lauritzen v. Larsen, 31 N Nader v. Allegheny Airlines Inc.426 US 290 (1976); 14 Av LR 17, 148, 118 O Odino Valperga Italeuropa v. New Zealand Ins Massey (1972) at p. 726, 63 Q Queen v. Cognos Inc., [1993] 1. S.C.R. 87, 127 R Rodriguez, Sousa, Lueiro, Gonzalez, Barriero, Alonso, Rodriguez v. Air France, Case C-83/10, 121 Ronald S. Lauder v. The Czech Republic, Award, 3 September 2001, 9 ICSID Reports 66, 24 S Salomon v. Commissioners of Customs and Excise [1967] 2 QB 116, CA at 141 per Lord Denning M.R, 140 Saluka v. Czech Republic, Partial Award, 17 March 2006, 23 Semco Salvage v. Lancer Navigation, [1997] 1 All. E.R. 502 at 512, 141 Sidhu v. British Airways, [1997] 1 All E.R. 193, 141 T Timberlane Lumber Company v. Bank of America 549F.2d 597 (1976), 78

11 Table of Cases xi U US. v. Aluminium Company of America, 148F.2d 416 (1945), 78 W Whitehouse v. Jordan, [1981] 1 All E.R. 267, 128 White v. Jones, [1995] 1 AER 691, 126 Y Yaung Chi Oo v. Myanmar Award, 31 March 2003, 8 ICSID Reports 463, 23