Wednesday, July 3, 2013
After a long early summer hiatus, we will be returning to a regular blogging schedule beginning next week following the American Independence holiday. But we wanted to check in with a few thoughts on the fascinating events surrounding the rerouting of Bolivian President Evo Morales' return flight from Moscow. While there are conflicting news reports as to exactly what happened, it appears that President Morales' aircraft, while en route from Russia to Bolivia, was denied permission to enter French, Spanish, Italian and Portuguese airspace. The aircraft landed in Austria to refuel, where, according to some reports, it was searched by local authorities before finally being permitted to continue the flight home today. It is widely believed that the aforementioned governments denied Morales overflight authorization because of pressure from the United States government which believed Edward Snowden, wanted in connection with U.S. security leaks, may have been aboard the aircraft.
Leaving aside the many related issues that are outside the purview of this blog, the denial of overflight authorization to Morales' aircraft has garnered criticism from many Latin American leaders and raised questions of international law. We thought it would be helpful to provide a few brief points of reference with regard to the relevant international aviation law surrounding the situation.
First, overflights by State aircraft fall largely outside of the 1944 Convention on International Civil Aviation, the basis for most of what we discuss as "international aviation law." Article 3 of the Convention limits the Convention's application to civil, as opposed to State, aircraft. While State aircraft isn't fully defined, there is no question that aircraft transporting a sitting State president on official State business qualifies.
Article 3(c) prohibits State aircraft from flying over the territory of another State without prior authorization. While obtaining overflight authorization for diplomatic aircraft such as the one carrying Morales is often routine (a description of U.S. authorization procedures can be found here), States have a clear legal right to deny such authorization. We don't currently know enough about what Morales' original intended flight path was, and what, if any, authorizations were obtained prior to takeoff only to be later revoked. Given States' broad sovereign authority in this area, there doesn't appear to be any violations of international law, at least not as relates to aviation. Of course, such an unusual incident is certain to carry diplomatic and political consequences regardless of legality.
Friday, May 31, 2013
In case you've missed anything, here are the top aviation policy developments from the past few days:
- Following Qatar's abandoned effort to seize ICAO hosting responsibilities from Canada, ICAO formally committed to keeping its headquarters in Montreal through 2036.
- India is preparing new rules that will allow pilots to nap on longer flights.
- IATA plans to present an industry-supported proposal for aviation emissions reduction at next week's World Air Transport Summit.
- Ryanair, having been thwarted in repeated attempts to acquire control of Aer Lingus, may now be forced to sell its minority stake following a ruling by the UK Competition Commission.
- Heathrow officials are planning a variety of measures to combat airport noise, including publishing rankings of the noisiest operators, increasing noise-related fines, making changes to operating procedures and adjusting the level of noise compensation for nearby residents. It is hoped that these noise mitigation efforts will help win support for the construction of a third runway.
Thursday, May 30, 2013
The Volume 12, Spring 2013 issue of the International Aviation Law Institutes's journal, Issues in Aviation Law and Policy (IALP), will be available next week. The following articles will appear in the issue:
- Jeremias Prassl, The European Union and the Montreal Convention: A New Analytical Framework
- Charlotte Thijssen, The Montreal Convention, EU Regulation 261/2004, and the Sturgeon Doctrine: How to Reconcile the Three?
- Zhyldyz Tegizbekova, Legal Analysis of Current National Air Law of the Kyrgyz Republic: Loopholes and Perspectives of Liberalization of the Air Market
- Jeremy Straub, John Nordlie and Ernest Anderson, A Need for Operating Standards in the Academic and Research High Altitude Balloon Community
- Miglena Rahova, Remedies in Merger Cases in the Aviation Sector: Developments in the European Commission's Approach
- Thomas Robert Wangard, Solve the Problem with Non-Citizen Trusts: Do Away with Citizenship Requirements for Aircraft Registration in the United States
- Jose Ignacio Garcia-Arboleda, Airport Slot Regulation in Latin America: Between Building the Fortress and Protecting the Newcomers
- Jason P. Brown, Storm Brewing: How Rejections by Foreign Courts of Forum Non Conveniens Dismissals by U.S. Courts May Disrupt International Efforts to Achieve Uniformity and Predictability in Jurisdictional Rules
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.
Friday, May 24, 2013
News of note before beginning your Memorial Day weekend:
- Qatar appears to have backed off its attempt to lure ICAO headquarters away from Canada.
- The European Commission has accepted the conditions proposed by Lufthansa, Air Canada and United for operation of the New York-Frankfurt route as part of their larger joint venture.
- Nigeria's Federal Executive Council has approved a new national policy on civil aviation intended to bring the country's safety regulation better in line with ICAO standards.
- Meanwhile, Australia's aviation safety agencies were harshly criticized in a senate committee report that could prompt the government to make changes.
Thursday, May 23, 2013
A report from Reuters last weekend indicated that ICAO-led discussions do not appear to be on track to resolve the question of how to regulate international aviation carbon emissions by this fall as hoped. It's long been understood that a plan is unlikely to be voted on and adopted this year, but it was hoped that ICAO members would have at least coalesced around a single recommendation. Such progress would likely be enough that EU officials would delay reinstatement of the EU ETS to international air carriers. But Reuters' analysis suggests that unless considerably more progress is made during the second half of this year, the EU is likely to be unimpressed with the state of talks and forced to make a difficult decision whether to extend its one year moratorium. A USA Today story earlier today suggests that EU officials are aware they may have to settle for less progress than initially hoped, conceding that there is unlikely to be a vote on a proposal before the 2016 ICAO Assembly.
According to Reuters, the U.S. is pushing for a scheme that places each State in charge of regulation over its own airspace. This approach would align with the traditional delineation of regulatory responsibilities under international aviation law and address the most prominent concerns raised by the EU's partially extraterritorial approach. Such a solution would be a blow to those hoping for a cross-border precedent upon which future climate change regulations could be based.
Wednesday, May 22, 2013
Tuesday, May 21, 2013
Friday, May 17, 2013
There was quite a bit of noteworthy aviation law news late this week, so we thought we'd provide a list of links below.
- Though the EU has pressed the pause button on parts of its aviation emissions regulation, it is considering assessing fines on Indian and Chinese carriers that have refused to comply with monitoring requirements and never submitted permits for 2012 emissions.
- EU officials are also reportedly hoping the United States will back them in this dispute.
- The European Commission has approved the rescue loan Poland gave LOT in December.
- The New Zealand government gave its approval to the Qantas-Emirates alliance.
Thursday, May 16, 2013
We'd like to congratulate Michael G. Whitaker, past advisory board member and long-time friend of the International Aviation Law Institute, who will be appointed by President Obama to become Deputy Administrator of the Federal Aviation Administration. Mr. Whitaker was with Trans World Airlines from 1991 to 1994, before spending 15 years with United Airlines, rising to the level of Senior Vice President for Alliances, International, and Regulatory Affairs. Prior to this appointment, he had been working with InterGlobe Enterprises. He should prove to be an excellent appointment.
Wednesday, May 15, 2013
Tuesday, May 14, 2013
Monday, May 13, 2013
Friday, May 10, 2013
Monday, May 6, 2013
Friday, May 3, 2013
Monday, April 29, 2013
Wednesday, April 24, 2013
Tuesday, April 23, 2013
Monday, April 22, 2013
Thursday, April 18, 2013