Thursday, January 13, 2011
The Boston University International Law Journal has just published Brian F. Havel & Gabriel S. Sanchez's Restoring Global Aviation's "Cosmopolitan Mentalite", 29 B.U. Int'l L.J. 1 (2011), as the lead article for its 29th volume. The study is the first of its kind to assess international aviation's global regulatory environment from the standpoint of philosophical cosmopolitanism. From the abstract:
For over six decades, the central juristic premise of the global regulatory regime for international civil aviation has been that citizenship defines ownership; the mentalite—the determinative category of thought—has been that nationality organizes air commerce. Through this conflation of commercial and national affiliation, there are American carriers, British carriers, Canadian carriers—but not a single authentically transnational carrier. Because nationality supervenes, there is no international airline as such; the concept of a multinational enterprise remains unknown in air transport, even in the 21st century.
In this article, we generate a fresh context within which to reevaluate the issue of airline nationality by first illuminating the implicit cosmopolitanism of the international aviation industry and of its (potential) global regulatory structure by recollecting the origins of the current order and by positioning the industry within the conceptual development of the notion of cosmopolitanism itself. To accomplish this, we use the recently-signed air services agreement between Canada and the European Union to project what we will call a “cosmopolitan mentalite” that can radically transform air transport law and regulation for the future. In particular, we will explore how a doctrine of “citizenship purity” has had a stranglehold on the natural cosmopolitanism of the aviation industry virtually since its establishment, and how the Canada/EU agreement, which contains features (or at least prospective features) excluded from all prior bilateral air services agreements through which countries exchange air route permissions, models a way past the industry’s inheritance of regulatory chauvinism.