November 4, 2011
23rd Annual EALA Conference
Institute Director Brian F. Havel spoke at the 23rd annual European Air Law Association conference in Rome earlier today. Professor Havel was assigned to a panel on EU-Russia air transport relations that included former U.S. Department of State negotiater John Byerly, Carlos Mestre of the EU Commission, and former Meridiana Fly CEO Massimo Chieli. His speech analyzed the rule of law in EU-Russia air transport relations with an emphasis on air space sovereignty. He discussed the long-festering issue of Siberian overflight charges which the EU has repeatedly argued exceed the air services charges permissible under Article 15 of the Chicago Convention. The EU hopes the issue is nearing resolution based on promises obtained from Russia earlier this month to finally implement the terms of an agreement that was reached in 2006. Professor Havel proposed that the overflights issue should not be viewed in isolation but contained disturbing similarities to the current dispute over the EU's attempts to extend its emissions regulations to foreign carriers. Both controversies involve attempts to leverage control over sovereign airspace to serve domestic interests, a pattern of practice that could threaten the international comity and expectation of First Freedom rights upon which a healthy international aviation system depends.
November 3, 2011
ICAO Takes Sides But Impasse Remains
Yesterday, a majority of the ICAO governing council agreed to adopt a resolution put forth by non-EU states calling on the EU to address aviation emissions through ICAO rather than unilaterally. The paper itself has not yet been made available, but by all accounts the details are of little consequence. The resolution is non-binding and EU representatives have already indicated that their position on including non-EU carriers in the ETS has not changed. See Ewa Krukowska, UN Body Urges Europe to Omit Foreign Airlines From CO2 Curbs, Bloomberg, Nov. 3, 2011 (available here). Ultimately, yesterday's decision was yet another minor political step on the path to a resolution. Now that ICAO has weighed in, it will be interesting to see if the ETS opponents begin a formal disagreement proceeding with ICAO as specified in Article 84 of the Chicago Convention, or if both sides bypass ICAO and begin threatening trade sanctions.
November 2, 2011
ICAO Sides with ETS Opponents
ICAO has just approved a working paper opposing the EU's plan to include foreign carriers in its emissions trading scheme. See UN Body Urges EU to Scale Back Airline Carbon Plan, Reuters, Nov. 2, 2011 (available here). Further analysis will be provided as details of the resolution are made available.
November 1, 2011
New Issue of IALP
The Volume 11, Fall 2011 issue of the International Aviation Law Institutes's journal, Issues in Aviation Law and Policy (IALP), will be available later this month. The following articles will appear in the issue:
- Brian F. Havel & Gabriel S. Sanchez, Do We Need a New Chicago Convention?
- Elena Carpanelli, The "Siberian Overflights" Issue
- Paul E. Stinson, Implied Field Preemption of the Aviation Claims Under the Federal Aviation Act: How the Landscape is Changing
- Carlos Ruiz, Pulling Back the Throttle in the Exercise of Personal Jurisdiction over Air Carriers
- Francesco Fiorilli, Ensuring Global Competitiveness in the Airline Industry
- Vanja-Ivan Savić, Responsibility in the Cockpit or Downtown? How Legal Theory Determines if an Airline Is to be Treated as a Criminal
Blog readers interested in subscribing to IALP, ordering back issues, or perusing a list of published articles may do so at the Institutes's website here.
October 31, 2011
Dispute Over EU Emissions Scheme to be Considered by ICAO?
The debate over the EU's ability to unilaterally impose its Emissions Trading Scheme on the rest of the international aviation community moves to ICAO this week as twenty-six nations are expected to file a formal protest against the EU measure on Wednesday. See Pilita Clark, Air Carbon Permit Fight Escalates, Financial Times, Oct. 30, 2011 (available here). The issue is expected to be discussed at the November 2 ICAO council meeting in Montreal. Following the Advocate General's opinion from earlier this month, ETS opponents have moved beyond the ECJ in their attempts to block the EU's plans. This shift in focus to ICAO was likely motivated by a lack of confidence that the high court will deviate greatly (if at all) from the Advocate General's opinion, as well as the practical reality that the full ECJ opinion is not expected until after the scheme is scheduled to go into effect. It is worth noting that the Financial Times article contains new cost estimates released last week by the Bloomberg New Energy Finance consultancy that anticipate a less severe economic impact for carriers under the ETS. For more commentary on this latest development, blog readers are invited to look at yesterday's Reuters' article on the same subject in which Institute Senior Fellow Gabriel S. Sanchez was quoted at length. See Barbara Lewis, Airlines Ready for Next Battle Against EU Carbon Law, Reuters, Oct. 30, 2011 (available here).