October 14, 2011
Australian Competition Regulator Approves Virgin/Singapore Alliance
The Australian Competition and Consumer Commission announced Thursday that it would approve Virgin Australia's alliance with Singapore Airlines. See Matt O'Sullivan, Virgin Gets Green Light for Singapore Alliance, BusinessDay, Oct. 13, 2011 (available here). Virgin Australia already had alliances with Etihad, Air New Zealand and Delta.
October 13, 2011
Pressure From EU Countries Could Complicate ETS Compromise
Lost in the attention given to the many nations opposing the EU's plan is discussion of how the ETS will affect carriers within the EU. Readers may be interested in an article from today's Wall Street Journal that reports that while many EU states and carriers support the plan, they are wary of any concessions or compromises to non-EU states that would leave EU carriers at a competitive disadvantage. See, Allessandro Torello, Emissions Plan Sparks Concerns, Wall St. J., Oct. 13, 2011 (available here). The legislation creating the ETS allows the EU to exempt carriers from non-EU states that have enacted similar measures to limit aviation emissions. This should be a signal to any observers expecting the EU to concede to foreign pressure that such a concession, if it comes, is unlikely to take the form of waivers to foreign airlines on the basis of vague promises or half-measures to address the emissions issue. EU members concerned about the possibility of foreign carriers operating under less burdensome regulatory schemes will want assurances that alternate plans are indeed comparable. How all of this plays out at the November 2 ICAO meeting is anyone's guess.
October 12, 2011
Advocate General Opinion Charts New Ground on Extraterritorial Jurisdiction Over Environmental Issues
Continuing our discussion of last week's ECJ Advocate General Opinion upholding the EU's proposed emissions plan, today we tackle the opinion's take on extraterritoriality. To keep the legal issues distinct, we'll reserve discussions of Chicago Convention articles 12 and 15 for a future blog post and focus today on the issue of sovereignty of states over their air space embodied in Article 1 of the Chicago Convention. The Advocate General addresses the air sovereignty rule because, despite holding the EU is not bound by the Chicago Convention, the EU is bound by customary international law which recognizes the principle of air sovereignty. The Advocate General claims that the EU is not exercising extraterritorial jurisdiction, but merely exercising its rights under the territorial principle, which allows a state to regulate foreign actors operating within the state's territory. According to the Advocate General, the application of the ETS regulation to foreign carriers is based on conduct occurring within EU territory, namely the departure or arrival of foreign aircraft to or from EU airports. This by itself is uncontroversial since the EU has the clear territorial right to apply its regulations to emissions by foreign carriers within EU airspace. But the Advocate General insists that, although the emissions charges will include the portions of flights by foreign carriers prior to entering and after leaving EU airspace, this should not be considered a regulation of extraterritorial activity but rather a regulation of territorial activity that takes into account events that happen outside of the EU's territorial jurisdiction. In other words, the rule (a carrier must have sufficient emissions allowances) only applies to the activity occurring in EU airspace (taking off or landing at an airport within the EU). There is no rule applying to the extraterritorial activity (flying outside of EU airspace), that activity simply factors into the overall calculation of allowances required once the territorial activity has triggered application of the rule. This clever formulation may seem like nothing more than a creative evasion of customary limitations on extraterritorial jurisdiction, but one can conceive of analogous situations that might support the Advocate General's position. For example, if a state charges a foreign national with conspiracy for actions occurring within the state's territorial jurisdiction, can the state not take into account evidence of the conspiracy occurring outside of the state's territorial jurisdiction?
More intriguing was the Advocate General's implicit indication that she was also basing her claim of territorial jurisdiction on an effects analysis, which is a subset of territorial jurisdiction allowing a state to exercise jurisdiction over conduct occurring outside of the state's territory but intended to have or having substantial effect inside its territory. The Advocate General did not expressly cite this idea but certainly invoked its spirit by analogizing the ETS issue to antitrust law, which, as opposed to environmental law, is an area of law in which the effects test is commonly used. In addition, the opinion included the following statement, "Such an approach reflects the nature as well as the spirit and purpose of environmental protection and climate change measures. It is well known that air pollution knows no boundaries and that greenhouse gases contribute towards climate change worldwide irrespective of where they are emitted; they can have effects on the environment and climate in every State and association of States, including the European Union." This reasoning mimics the rationale behind application of the effects test in antitrust law: anticompetitive foreign conduct that negatively impacts a state's market should be subject to the state's territorial jurisdiction. The analogy between the cross-border market effects of anticompetitive behavior and the cross-border effects of emissions contributing to global climate change has some merit, but the application of the effects test in this way is still largely unprecedented. This boundary-pushing use of the effects test has wide-ranging implications for environmental law that should excite environmental activists and terrify businesses. For instance, following the Advocate General's logic, why couldn't the EU apply its emissions requirements to the production and transport of any product produced in or shipped to the EU?
October 11, 2011
New Front in Passenger Rights Debate?
We'll resume our analysis of the Advocate General's opinion in the ETS case tomorrow, but for now we thought it was worth pointing blog readers to a story from yesterday's New York Times on the recent spate of high-profile incidents of airlines removing passengers from flights. See Christine Negroni, Fliers' vs. Airlines' Rights, N. Y. Times, Oct. 10, 2011 (available here). Recall that highly publicized events were an important catalyst for the recent passenger rights regulations concerning tarmac delays, though any efforts to limit airlines' discretion to remove passengers would likely be a tougher sell because of security concerns. This may be an issue where passenger advocates' best tactic is continuing the public relations pressure already being employed.
October 10, 2011
Functional Succession Theory and Ramifications of EU Exemption from Chicago Convention
Before moving on to analysis of the other legal aspects of EU Advocate General Juliane Kokott's non-binding opinion, we feel compelled to devote one more day to discussion of the opinion's fascinating declaration that the EU is not bound by the Chicago Convention. While it isn't clear that the Advocate General's opinion is wrong on this point, it is worth considering the ramifications. Clearly the EU has not as a body signed the Chicago Convention, and as Kokott's opinion observes, the terms of the EU incorporation treaty do not obligate the EU to uphold all of the provisions of its member states' treaties. Under prevailing rules of state succession, a successor state, though not formally a signor, would assume the treaty obligations of the prior state. See Vienna Convention on Succession of States in respect to Treaties (1978) (available here). However, the EU is not formally a successor to its member states which still retain independent legal identities. The question then becomes whether the EU is a functional successor to its member states in the areas governed by the treaty in question by virtue of having replaced its member states in the international aviation trade arena and in the duties assigned to those member states under the Chicago Convention. For a description of functional succession theory, See Noelle Quenivet, Binding the United Nations to Human Rights Norms by way of the Laws of Treaties, 42 Geo. Wash. Int'l L. Rev. 587, 606-07 (2010). One could point to the aviation agreements the EU has entered into on behalf of its member states, notably the 2007 and 2010 EU-US agreements as evidence supporting the argument. However, the opinion notes that the member states still retain some autonomy in aviation decisions, and appears to place a lot of weight on the fact that the individual member states still represent themselves at meetings of the ICAO, the international body established by the Chicago Convention, rather than have the EU represent them. The opinion described the level of EU replacement of member state functions in the aviation area as "mixed" and stated that the EU could not be considered a functional successor until replacement in the aviation area was complete. Again, the opinion is not necessarily incorrect in its application of functional succession theory, and functional succession theory is not customary international law. However, this interpretation creates exactly the type of problem the theory was intended to avoid: the ability of some states to use an international organization to vitiate their commitments. Under this line of thinking the EU could presumably violate any of the Chicago Convention's commitments without penalty, as could a hypothetical U.S.-Canadian union formed explicitly for that purpose. Perhaps to deflect from this criticism and to discourage any attempt to hold individual EU member states accountable for violations committed by the EU institutions in which they participate, the opinion went on to argue that the ETS wouldn't violate the Chicago Convention even if the Convention were applicable, a claim we'll examine further tomorrow. Still, for now, it's worth calling attention to the significant implications of this opinion.
Edited for clarity 10/12.