Friday, October 21, 2011
Ethiopian Airlines and Singapore Airlines announced a new codeshare agreement, effective November 1. See press release, Singapore Airlines, Oct. 21, 2011 (available here). Ethiopian Airlines is still in the process of being integrated into the Star Alliance after being accepted as a future member last year.
Thursday, October 20, 2011
It appears that without a reduction in airline taxes, Air France-KLM will stop serving the Philippine market in early 2012. See Jay Chua, Air France-KLM Has Had Enough of Promises, Malaya Business Insight, Oct. 19, 2011 (available here). Other European carriers have already ended their operations in the Philippines over similar concerns.
Wednesday, October 19, 2011
Blog readers may be interested in reading about a new security measure TSA is testing. See Bart Jansen, Next Layer of Air Security: Chat-downs on Top of Pat-downs?, USA Today, Oct. 13, 2011 (available here). Passengers are subjected to a brief verbal questioning in addition to the current screening procedures. The article quotes multiple passengers and civil-liberties advocates as unhappy with the questioning, but even if this program goes nationwide it's difficult to imagine this prompting the level of public outcry caused by the full body scanners. The more serious legal complaints are likely to be connected to concerns over profiling, in particular the method by which persons are chosen for questioning and the nature of the questions asked.
Tuesday, October 18, 2011
Having previously analyzed the Advocate General's claims that the EU is not bound by the Chicago Convention and that the ETS does not violate prohibitions on extraterritorial regulation, today we look at the opinion's assertion that the EU is free to act unilaterally on emissions regulation, rather than being compelled to work through ICAO to achieve a multilateral solution. The Advocate General identifies two potential sources of law that might prohibit unilateral action, Article 2(2) of the Kyoto Protocol and Article 15(3) of the EU/U.S. Open Skies Agreement.
Article 2(2) of the Kyoto Protocol says that the parties "shall pursue limitation or reduction of emissions of greenhouse gases ... working through the International Civil Aviation Organization ... ." See Kyoto Protocol to the United Nations Framework Convention on Climate Change (available here). The Advocate General interprets this clause as a "preference" for finding a multilateral solution through ICAO, but not a commitment to working exclusively through ICAO. The AG bases this opinion on two practical considerations: not all ICAO members were parties to the Kyoto Protocol, so an assignment of exclusive authority to ICAO would give outsider nations a prominent role in implementing obligations under an agreement they didn't sign; and not all Kyoto signatories are ICAO members (including, notably, the EU) so exclusive ICAO authority would prevent a Kyoto party from participating in the implementation of its Kyoto obligations. One could argue in response that the question shouldn't be whether it was a good idea for the Kyoto parties to assign airline emissions exclusively to ICAO, but whether that is what the Kyoto parties did. The AG seems to be of the opinion that because it wasn't a good idea, it couldn't have been what was intended by the Kyoto Protocol. It would be interesting to look at minutes from the Kyoto meetings to see if there is any extrinsic evidence supporting the AG's conclusion that the word "shall" in Article 2(2) was meant as a preference and not an exclusive commitment. The AG goes on to argue that this "preference" constitutes only a "very general obligation of conduct" and that, by attempting to work through ICAO on the emissions issue for a decade, the EU had satisfied that general obligation of conduct and must now be free to "take the measures necessary to achieve the Kyoto objectives." This perhaps summarizes the underlying theory of treaty interpretation the AG appears to be applying: reading the treaty as broadly or generously as necessary to permit conduct in furtherance of the treaty's underlying objectives.
Article 15(3) of the EU/U.S. Open Skies Agreement requires the parties to follow the environmental standards adopted by ICAO in the annexes to the Chicago Convention. Because ICAO has not adopted any emissions standards in the Convention annexes, the AG is on firmer ground in finding no prohibition to unilateral action here. The AG does note the 2007 and 2010 ICAO Assembly resolutions. In support of the AG's opinion, the 2010 resolution seemingly permits unilateral action as Brian F. Havel and Gabriel S. Sanchez point out in Towards a Global Aviation Agreement (available here). It is interesting to observe that, despite the more favorable 2010 resolution, the AG took the time to discuss the 2007 resolution that was more negatively disposed toward unilateral action, calling it "a non-binding political declaration." This could be seen as a blow to those who tout the efficacy of pluralism and "soft" law, as the AG seems to make clear that only binding commitments matter. It also should give notice to the ICAO Assembly in advance of the November meeting that a resolution condemning the EU's emissions scheme is unlikely to carry much weight with the Europeans. Multilateral approval of adding emissions standards to the Chicago Convention annexes or some kind of brokered agreement between members will likely be necessary to alter the EU's plans.
Edited for clarity 10/19.
Monday, October 17, 2011
While we're not yet finished dissecting the Advocate General's ETS opinion, we'd be remiss if we failed to call attention to another significant opinion handed down by the ECJ last Thursday. The ECJ held that flights that fail to reach their final destination because of technical difficulties are to be considered cancelled flights under EU law, and passengers on cancelled flights are entitled to recover non-material damages caused by the cancellation such as meal costs and taxi fares. Blog readers interested in the full opinion can find it here.