November 18, 2011
Is Russia Finally on the Verge of Ending Siberian Overflight Fees?
EU carriers that have long complained about the charges levied on their routes overflying Russian territory may soon have reason to celebrate. The Russian government has pledged to end the charges, assuming Russia's admission to the WTO next month proceeds as planned. See Daniel Michaels, Russia Seen Close to Ending Air Tax, Wall St. J., Nov. 15, 2011 (available here). The Siberian overflight charges, as they are called, are far higher than standard air service charges and significant portions of the charges are used to subsidize Russian carrier Aeroflot. For those reasons, the charges clearly violate Article 15 of the Chicago Convention. The EU obtained an agreement from Russia to end the practice in 2006, but the Russian government backed out of implementing the agreement. The EU's recent efforts to tie Russian admission to the WTO to elimination of these charges appears to have produced the desired result as Russia will begin implementing a modified version of the earlier agreement January 1, with plans to have the charges completely eliminated by 2014. Of course this is an issue where follow up will be crucial.
November 17, 2011
More Scholarly Support for the ETS
For those who are interested, the volume of scholarship responding to the Advocate General's advisory opinion in the ETS case continues to grow. Benoit Mayer contributes A Defense of the EU Emission Trading Scheme in Aviation Activities (Nov. 7, 2011) (available from SSRN here). From the abstract:
From 1 January 2012, directive 2008/101 extends the EU Greenhouse Gas Emission Trading Scheme to aviation activities. The validity of this directive has been questioned in a preliminary ruling brought by American air carriers. This article discusses the allegations of an extraterritorial legislation and a 'European unilateralism' in the light of the recent conclusions of Advocate General Kokott. Beyond purely legal arguments, it highlights the underlying economic and political considerations that are part to the debate. Lastly, it pleads for further consideration to be given to good faith in the assessment of the European so-called 'unilateralism.' As the European Union has no economic interest in implementing this regime, one should take its environmental motivation duly into account; and mitigating climate change is certainly a legitimate purpose recognized in international law, therefore allowing certain forms of legislation with an extraterritorial effect.
November 16, 2011
India Considering Relaxing Foreign Ownership Rules
The Indian government is reportedly considering a change to its airline ownership rules. See Santanu Choudhury and Amol Sharma, India is Urged to Ease Airline-Ownership Rules, Wall St. J., Nov. 15, 2011 (available here). Indian law prohibits foreign carriers from investing in Indian carriers, though foreign investors who aren't affiliated with foreign carriers are able to own up to a 49 percent stake. Kingfisher Airlines chairman Vijay Mallya has asked the government to remove the prohibition on investment by foreign carriers and the Indian government has taken it under consideration. Strict restrictions on foreign investment remain a problem throughout the aviation industry, so any loosening of such restrictions would be welcomed by many.
November 15, 2011
Common But Differentiated Responsibilities and Respective Capabilities in the ETS
Blog readers may be interested in EU Climate Change Unilateralism: International Aviation in the European Emissions Trading Scheme (Nov. 1, 2011) available from SSRN here. This piece by Joanne Scott and Lavanya Rajamani examines whether the EU emissions plan for aviation satisfies the principle of Common but Differentiated Responsibilities and Respective Capabilities. We'd also like to thank the authors for mentioning the blog in a footnote. From the abstract:
The EU is engaged in an ambitious, controversial and high-stakes experiment to extend the reach of its climate change law. It is seeking to use its market power to stimulate climate action, and to substitute for climate inaction, elsewhere. In some quarters, this has been greeted with dismay. While we are sympathetic to the EU’s objective, we argue that its current approach is flawed. In contrast to other observers, we do not condemn the EU on the basis that its approach is unilateral, extra-territorial or liable to infringe the sovereignty of other states. We argue instead that in its current guise, the aviation decision may not sufficiently reflect or give adequate weight to the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC). This is a key component of international climate change law and while its meaning and implications remain contested and vague, it makes it clear that developed countries should take the lead in addressing the causes and effects of climate change. We argue that the concept of CBDRRC retains relevance in the context of unilateral action, and that EU policy should be interpreted, applied and where necessary adjusted in the light of this principle to ensure that it is given proper weight. We argue that it is possible to achieve an alignment between CBDRRC and the principle of non-discrimination which is found in many parts of international law.
November 14, 2011
DOT Hands Down First Tarmac Delay Fine
Earlier today the Department of Transportation issued the first fine for a violation of the tarmac delay rule that took effect in April 2010. American Eagle Airlines was fined $900,000 for delays longer than three hours on 15 flights at Chicago O'Hare International Airport on May 29, 2011. The DOT press release is available here.