Wednesday, July 3, 2013

Evo Morales and the Overflight Rights of State Aircraft

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.

July 3, 2013 | Permalink | Comments (1) | TrackBack (0)

Friday, May 31, 2013

Friday Link Roundup

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.


May 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 30, 2013

Spring 2013 Issue of IALP Available

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.

May 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, May 24, 2013

Friday Link Roundup

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.

May 24, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 23, 2013

Progess is Slow in ICAO Emissions Talks

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.

May 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 22, 2013

Futurism, Technological Change and Air Space Regulation

When teaching international aviation law, one of the themes I like to introduce early in the semester is the interaction between technology and law. How does society and the state respond to disruptive technological change? Given the relatively recent invention of air passenger transport and the even shorter history of the modern international aviation law system, it is possible to provide the students with a fair overview of how aviation regulation has evolved from its infancy to present day without absorbing too much lecture time. I try to return to the theme whenever appropriate throughout the semester, highlighting for instance the relationship between the invention of the jet engine and the subsequent desire for noise regulation. Until now, post-WWII technological changes in aviation have failed to provide the excitement I associate with those early philosophical debates over the "freedom of the skies" and the need to crafting a legal regime for an entirely new mode of transport. I wonder if that may be changing though, as all of this was brought to mind by a few recent articles I read that call attention to technological changes on the verge of upsetting the industry, and in particular, the regulatory structure governing it. The coming decade will require dedicated work from scholars, regulators and industry to properly incorporate these changes into the existing legal system. 

May 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 21, 2013

U.S. Supreme Court to Revisit Field Preemption in Aviation

The United States Supreme Court has granted certiorari in the case of Northwest Airlines v. Ginsberg.The plaintiffs allege that Northwest Airlines committed a breach of contract under Minnesota state law when the airline expelled the plaintiffs from its frequent flyer program. The main question at issue for the Supreme Court will be whether the Airline Deregulation Act preempts state law regarding pricing or service. The case will be heard sometime after the next term begins in October.

May 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, May 17, 2013

Friday Link Roundup

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.




May 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 16, 2013

Michael Whitaker Selected for FAA Post

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.

May 16, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 15, 2013

CAPA on Consolidation in European Market

CAPA has a good rundown today of the current and future state of airline consolidation in Europe. The piece suggests that while Europe has yet to achieve the degree of consolidation present in the North American market, significant future changes are likely to require deals involving non-EU carriers. The full analysis is worth a read.

May 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 14, 2013

ICAO Climate Change Symposium Seeks Answers

Delegates have gathered in Montreal this week for ICAO's symposium on climate change and aviation. The primary agenda item will be discussions regarding a scheme to regulate aviation emissions. Reportedly, there are three options under consideration, ranging from a cap-and-trade plan to a requirement to purchase carbon offsets. Industry appears to be pushing for the carbon offset option.

May 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, May 13, 2013

Fallout from Shooting Extends to Philippine-Taiwan Air Services

An expansion of the existing air services agreement between Taiwan and the Philippines has been set aside in the wake of the controversy over the recent shooting of a Taiwanese fisherman by the Philippine Coast Guard.

May 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, May 10, 2013

LOT Looking for Help

Ongoing financial troubles have Polish flag carrier LOT in the news again. One report has raised the possibility of a sale to Norwegian Air. Another suggests the carrier may once again seek a loan from the Polish government. More clarity is expected within the next few weeks.

May 10, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, May 6, 2013

ABA Aviation Litigation National Institute

For those who are interested, the American Bar Association will be holding its annual Aviation Litigation National Institute on June 6, 2013 at the University Club of New York. More information is available at the ABA website.

May 6, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, May 3, 2013

Qatar Makes Bid to Host ICAO

Qatar stirred up a bit of attention last week when it presented ICAO with an offer to serve as the organization's permanent seat. Canadian officials intend to do what it takes to keep ICAO in Montreal, where it has been since the organization was created in 1946. ICAO's rules dictate that Qatar's proposal will be considered and voted at this October's Assembly meeting.

May 3, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, April 29, 2013

Customs Pre-clearance in Abu Dhabi

In yet another manifestation of major U.S. and European carriers' increasing concern for a level playing field, at least when Emirates is involved, a proposal to establish a U.S. customs pre-clearance facility at Abu Dhabi International Airport is drawing strong opposition.

April 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 24, 2013

Etihad First to Take Advantage of New India FDI Rules

Etihad Airways is purchasing a 24 percent stake in India's Jet Airways, completing a deal that has been in the works since at least January. This is the first such investment by a foreign airline since India began allowing foreign carriers to make direct investments in Indian carriers last September.

April 24, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 23, 2013

EC to Further Scrutinize Olympic-Aegean Merger Proposal

The European Commission announced in a press release earlier today that it's initial review of the proposed merger between Greece's two major carriers, Olympic Air and Aegean Airlines, produced sufficient competition concerns to warrant  an in-depth probe. The Commission blocked a previous merger attempt by Olympic and Aegean in 2011. Today's press release gave little indication that the outcome will be different this time around. In the press release the Commission identified six routes on which the merged entity would have a monopoly, as compared with nine such routes that would have been created under the first merger attempt. The Commission also expressed serious concern about the viability of existing or future competitors within the affected markets and indicated that Aegean's proposed commitments were inadequate. A final decision is expected by the beginning of September. 

April 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, April 22, 2013

Striking Against Open Skies

Over the weekend Israeli airline workers went on strike to protest Israel's new open skies agreement with the European Union. Numerous flights were cancelled as a result of the two-day strike, which ended today. In the first linked article, a quoted union representative characterizes the worker's stance as supporting competition if it is fair. The Israeli carriers have raised two areas of concern with regard to fairness in competition: their exclusion from the most powerful international airline alliances and Israel's stricter security standards. To end the strike, the Israeli government reportedly addressed the latter concern by agreeing to pay 98 percent of the carrier's security costs. While it's hardly unprecedented for airlines and unions to oppose liberalization, the international aviation community's growing concern with "fairness," a trend that was on display at ICAO's Air Transport Conference last month, warrants attention. 

April 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

India Plans Regulatory Reforms for Charter Flights

In order to improve safety regulation and decrease notice time for non-scheduled flights, India's Directorate General of Civil Aviation (DGCA) plans to create a separate regulatory division that will be assigned to the non-scheduled sector. Rule changes are also on the agenda. Apparently these reforms are intended to take place simultaneous to or in conjunction with India's grander goal of replacing the DGCA with a Civil Aviation Authority about which we'll have more to say later.

April 18, 2013 | Permalink | Comments (0) | TrackBack (0)