Elgar Concise Encyclopedia of Aviation Law 1803923644, 9781803923642

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Elgar Concise Encyclopedia of Aviation Law

ELGAR CONCISE ENCYCLOPEDIAS IN LAW Elgar Concise Encyclopedias in Law are the definitive guides to a wide variety of subject areas in the field. The format is an invaluable reference source and essential research destination for academics, practitioners, and students alike. Each encyclopedia is edited by one or more leading international scholars and contains a broad yet curated collection of entries written by key academics and practitioners. The result is concise, accessible coverage of each topic. Equally useful as reference tools or high-level introductions to specific topics, issues, cases, and debates, these encyclopedias are a unique, foundational contribution to the field. For a full list of Edward Elgar published titles, including the titles in this series, visit our website at www.e-elgar.com.

Elgar Concise Encyclopedia of Aviation Law

Edited by

Anna Masutti Professor of Air and Space Law, University of Bologna, Italy and Partner, RPLT RP legalitax

Pablo Mendes de Leon Professor of Air and Space Law, The Hague, the Netherlands

ELGAR CONCISE ENCYCLOPEDIAS IN LAW

Cheltenham, UK · Northampton, MA, USA

© The Editors and Contributors Severally 2023. Entry entitled ‘European Union Agency for the Space Programme’ © EUSPA   All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher.   Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK   Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA       A catalogue record for this book is available from the British Library     Library of Congress Control Number: 2023946839     This book is available electronically in the Law subject collection http://dx​.doi​.org​/10​.4337​/9781803923659

ISBN 978 1 80392 364 2 (cased) ISBN 978 1 80392 365 9 (eBook)

EEP BoX

Contents Topics with an asterisk next to them function as aids to navigation, each recommending a set of connected topics within the Encyclopedia for readers to explore. List of contributors Preface 1 Accident*

x xvi 1

17 Aircraft Accident Investigation Annemarie Schuite

56

2

18 Aircraft Collision María Jesús Guerrero Lebrón

60

2 Aerial Navigation Anna Masutti

64

3 Aeronautical Information María Jesús Guerrero Lebrón

5

19 Aircraft Documentation Kate Staples

4 Air Cargo Pietro Benintendi and Marc Wiesner

9

20 Aircraft Financing (Dry and Wet Lease) Sam Jonkeren

69

5 Air Carrier Moritz G. Heile

13

21 Aircraft Financing (Finance and Operating Leasing) Donal Patrick Hanley

71

6 Air Commerce Moritz G. Heile

17

22 Aircraft Financing (Purchase of Aircraft) Donal Patrick Hanley

75

20

23 Aircraft Ownership and Registration Timothy Ravich

79

25

24 Aircrew Neil Montgomery, Drielle Amate Matta, and Larissa Paganelli

83

29

25 Airlines Alliances Marco Di Giugno

87

10 Air Operator Certificate Iva Savić

32

26 Airport Charges Stamatis Varsamos

91

11 Air Piracy and Crime Jinyoung Choi

36

27 Airport Congestion Cinzia Ingratoci

95

12 Air Services Agreements Katja Brecke

39

28 Airport Development Ajay Kumar and Saachi Juneja

100

13 Air Traffic Management Francis Schubert

43

29 Airport Ground Operations Anna Konert

103

14 Air Traffic Services João Marques de Almeida

46

30 Airport Managing Body Massimiliano Musi

106

15 Air Waybill Morten Hans Jakobsen and Jens Erik Kundby Nielsen

49

31 Airport Security 110 Sofia Mateou and Andreas Mateou

16 Aircraft Mariagiulia Previti

52

32 Airports and Aerodromes Bastiaan de Bruijne and Benjamyn I. Scott

7 Air Defense Identification Zones (ADIZs) Pai Zheng 8 Air Mail F. Robert van der Linden 9 Air Navigation Services Provider (ANSP) Francis Schubert

v

114

vi  elgar concise encyclopedia of aviation law 33 Airspace Małgorzata Polkowska

118

52 The Chicago Convention (1944) Maria Piera Rizzo

182

34 Airspace Sovereignty Anna Masutti

123

53 Civil Aviation Authority Anna L. Melania Sia

186

35 Airworthiness Francesca Berni

128

54 Code Share Agreements Alessandro Zampone and Alessandro Cardinali

190

55 Combined Single Limit Claudia Hess

195

56 Competition in Aviation Ravi Nath

197

57 Contract of Air Transport Mia Wouters

202

36 Annexes to the Chicago Convention 132 Maria Piera Rizzo 37 Arbitration in Aviation Jae Woon Lee 38 Aviation Emissions: The Global and EU Approaches Pablo Mendes de Leon

136

139

143 39 Aviation Insurance Katherine B. Posner and Mary Dow

58 Cost and Freight in Air Cargo Transportation 205 Ravi Nath and Dhruv Chawla

40 Aviation Law Christos Clerides

147

41 Aviation Reinsurance Ali Kartal

151

42 Aviation Safety Luca Zamparini and Joseph Szyliowicz

154

43 Aviation Security (EU) Francesco Faiulo and Máté Gergely

158

44 Aviation Security (International) Joseph Szyliowicz and Luca Zamparini

161

62 Deregulation of International Civil Aviation Francesca Pellegrino

219

45 BASAs*

165

63 Drones*

222

46 The Beijing Convention (2010)*

166

47 Bermuda Agreements Francesca Berni

167

48 Brexit (Aviation) Robert Lawson

171

49 Business Aviation*

174

50 Cabotage Alessandra Romagnoli

175

51 The Cape Town Convention and Aircraft Protocol Carlos Sierra

179

59 Cybersecurity Sorana Păun Pop, Helena Hallauer, and Rebekah Tanti-Dougall 60 Delay under Private International Air Law Ricardo Pazos 61 Deregistration of Aircraft Serap Zuvin and İlke Işın Süer

208

213 217

64 Emission Trading Scheme in Aviation 223 Tuvana Aras 65 Environmental Protection in Aviation 227 Andrea Marotta 66 EUROCONTROL Ann Frédérique Pothier

231

67 European Air Law Association Pablo Mendes de Leon

235

68 European Civil Aviation Conference 238 Alessio Quaranta

contents  vii 69 European Union Agency for the Space Programme Yannick Felici, Ezio Villa, Christopher Neville, Fiammetta Diani, Reinhard Blasi, and Christina Giannopapa 70 European Union Aviation Safety Agency Piotr Samson

242

87 Interception of Aircraft 303 Sofia Mateou and Andreas Mateou 88 Interlining Andrea Trimarchi

307

89 International Air Transport Association 311 Massimiliano Musi 248

90 International Aviation Law Emilia Vermiglio

315

71 Extraordinary Circumstances Vincent Correia

252

72 Flight Duty Time Andrea Trimarchi

256

91 International Civil Aviation Organization 319 Massimiliano Musi

73 Flight Information Region Ridha Aditya Nugraha

259

74 Freedoms of the Air Roberto Cassar

263

75 Functional Airspace Block Elena Orrù

92 International Conventions*

323

93 Jurisdiction in Contract of Air Transport Cases Marco Argentini

324 328

268

94 Just Culture (Aviation) Marc Baumgartner and Anthony Smoker

76 General Aviation Mark Bisset

275

95 Labor Relations in Aviation Jacomo Restellini

335

77 The Geneva Convention (1948)* 78 Global Navigation Satellite Systems for Aviation Ingo Baumann, Oliver Heinrich and Malte Krumm

279

96 Leasing*

339

97 Liability*

340

98 Liability for Accidents Chiara Tincani

341

99 Liability for Damage to Baggage Rainer Amann

345 349

280

79 The Guadalajara Convention (1961)* 284 80 Guatemala City Protocol (1971)*

285

81 The Hague Convention (1970)*

286

100 Liability for Damage to Cargo Maurizio Corain

353

287

101 Liability for Death and Personal Injuries Maurizio Corain 102 Liability for Denied Boarding, Delay, and Cancellation of Flights Laura Pierallini

358

82 The Hague Protocol (1955) amending the Warsaw Convention (1929)* 83 Handling Francesco Morandi

288

84 Hijacking of Aircraft Federico Franchina

292

85 Hull Insurance Ali Kartal

296

86 IDERA Jacomo Restellini

299

103 Liability of Air Navigation Services 362 Francis Schubert 104 Liberalization of the EU Air Transport Market Luca Ancis

366

viii  elgar concise encyclopedia of aviation law 105 Low-cost Carriers Julian D. Lourido Alonso 106 Market Economy Investor Principle in the Aviation Sector Daniele D’Antonio

369

373

107 Military Aircraft Gilles Fartek

376

108 The Montreal Convention (1999) Peter Neenan

380

109 Mortgage of Aircraft*

384

110 Multiple Designation Anna Masutti

385

111 Nationality Clause Gavin Rutter

389

112 Noise*

392

113 Non-revenue Flights Ricardo Pazos

393

114 Notice to Air Missions (NOTAM) 397 María Jesús Guerrero Lebrón 115 Open Skies*

400

116 Operation of European Air Services 401 Sybille Rexer 117 Overflight Elena Carpanelli

404

118 Ownership and Control of Airlines 408 Francesco Fiorilli

126 Public Service Obligations Vincent Correia

434

127 Repossession of Aircraft Serap Zuvin and İlke Işın Süer

437

128 The Rome Convention (1952) on Damage Caused by Foreign Aircraft to Third Parties on the Surface 439 Catherine Erkelens 129 Rules of the Air Elena Orrù

443

130 Sabotage of Aircraft Jinyoung Choi

447

131 Safety Handbook Elena Carpanelli

450

132 Safety Investigation Authorities Bruno Franchi

453

133 Satellite Navigation for Aviation Dejian Kong

457

134 Scheduled and Non-scheduled Air Services Kate Staples 135 Search and Rescue Operations Sandeepa Bhat B.

461 466

136 Single European Sky ATM Research 470 Cinzia Ingratoci

119 The Paris Convention (1919) Vincent Correia

412

137 Single European Sky (SES I and SES II) Francesca Pellegrino

120 Passenger Name Record Ottavia Carla Bonacci

415

138 Slot Allocation Cinzia Ingratoci

474 478

122 Pilot-in-Command Elena Carpanelli

422

139 Standards and Recommended Practices (SARPs)* 140 State Aid (Aviation) Alessandro Perrone and Gonzalo Torres Picazo

123 Pool Agreements Simone Vernizzi

425

141 Subleasing Sergio Giménez Binder

488

124 Principal Place of Business Niall Buissing

428

142 Sustainability in Aviation Ottavia Carla Bonacci

492

125 Product Liability Jane M. Sigda

431

143 Tariffs (Tariff) Ben Graham-Evans

496

121 Passenger Sales Agency Agreement 420 Claudia Hess

483 484

contents  ix 144 The Tokyo Convention (1963)*

499

145 Traffic Rights* 146 Transit Rights*

500 501

147 Unlawful Interference with Aviation 502 Timothy Ravich 148 Unmanned Aircraft Systems Benjamyn I. Scott and Mikko T. Huttunen 149 Unmanned Aircraft System Traffic Management Mikko T. Huttunen and Benjamyn I. Scott

506

510

150 Unruly Passengers Jinyoung Choi

514

151 Urban Air Mobility Monica Brignardello

517

152 U-space Adele Marino

521

153 The Warsaw Convention (1929) Peter Neenan

525

154 Wilful Misconduct*

529

Index

530

Contributors Rainer Amann is a Partner at Urwantschsky Dangel Borst, Neu-Ulm, Germany, joining in 2000 and becoming partner in 2006. Mr Amann has extensive experience in German and international aviation law.

in Air and Space law at the University of Bologna, Italy. Katja Brecke, LL.M. (Leiden) is a Partner at the law firm ASD | ARNECKE SIBETH DABELSTEIN, Germany.

Luca Ancis, PhD is an Associate Professor in the Department of Law at the University of Cagliari, Italy.

Monica Brignardello is a Full Professor of Maritime and Transport Law in the Department of Economics at the University of Genoa, Italy.

Tuvana Aras is a Meijers PhD candidate at the International Institute of Air and Space Law (IIASL) and at the Europa Institute of Leiden University in the Netherlands.

Niall Buissing is Managing Director & Partner of the consulting firm Lexavia in Amsterdam, the Netherlands, and a board member of the Dutch Transport Law Association.

Marco Argentini, PhD is a Research Fellow in International Law at the University of Bologna and a qualified lawyer.

Alessandro Cardinali, PhD is an Attorney at Law based in Rome, Italy.

Ingo Baumann is co-founder of and a Partner at BHO Legal in Cologne, Germany – a boutique law firm for European high technology projects in the space, drones, defence, and ICT sectors.

Elena Carpanelli, PhD is a Researcher and Assistant Professor in International Law in the Department of Law, International and Political Studies at the University of Parma, Italy.

Marc Baumgartner is an Air Traffic Controller in Geneva and an IFATCA representative.

Roberto Cassar is a Legal Counsel to elseco Limited in Dubai, the U.A.E. He holds a Master of Law specializing in Air and Space Law (cum laude) from Leiden University. Mr. Cassar is also a member of the board of editors for the journal Air & Space Law.

Pietro Benintendi, LL.M. is a Legal Counsel at Lufthansa Cargo AG, Frankfurt am Main, Germany. Francesca Berni has a Master of Law degree with a specialization in Air and Space Law at the University of Bologna, Italy.

Dhruv Chawla is an aviation lawyer and former associate at Rajinder Narain & Co./RNC Legal, India. He holds a Diploma in Aviation Law and Air Transport Management.

Sandeepa Bhat B., LL.M., PhD is a Professor of Law and a Director at the Centre for Aviation and Space Laws at The WB National University of Juridical Sciences, Salt Lake City, Kolkata, India.

Jinyoung Choi is a Lecturer and an external PhD candidate at the International Institute of Air and Space Law at Leiden University. She is also a R&D Consultant in the Safety and Human Performance Department at the Royal Netherlands Aerospace Centre (NLR).

Sergio Giménez Binder, LL.M. is a Partner at Augusta Abogados and an Assistant Lecturer of Private International Law in the Law Faculty at the Universitat Pompeu Fabra in Barcelona, Spain.

Christos Clerides is the President of the Cyprus Bar. Professor Clerides works at Phoebus, Christos Clerides & Associates LLC.

Mark Bisset is the Global Head of Aviation Finance at Clyde & Co in London, UK.

Maurizio Corain is an Attorney at Law with long experience in aviation law and a Partner of RPLT RP legalitax, an Italian law firm.

Reinhard Blasi is a Market Downstream and Innovation Manager at the European Union Agency for the Space Programme (EUSPA).

Vincent Correia is a Full Professor of Law at McGill University, Montreal, Canada.

Ottavia Carla Bonacci is a lawyer, Associate at RPLT RP legalitax and a PhD candidate x

contributors  xi Daniele D’Antonio is a Lawyer and PhD candidate in Corporate Law at the University of Bologna, Italy. João Marques de Almeida is a Partner at Alves Pereira e Teixeira de Sousa RL in Lisbon, Portugal. Bastiaan de Bruijne is the General Counsel at Airports Council International – Europe (ACI EUROPE) in Brussels, Belgium. Fiammetta Diani is the Head of Market, Downstream and Innovation at the European Union Agency for the Space Programme (EUSPA). Marco Di Giugno is the Director of Legal Analysis and Litigation at Ente Nazionale per l’Aviazione Civile (ENAC), Italy. Mary Dow is a Partner at Condon & Forsyth in New York, USA. Catherine Erkelens is the Founder of the Aviation niche firm Erkelens Law in Brussels, Belgium. Francesco Faiulo is an Aviation Security Expert in the Transport Security Unit at the Directorate-General for Mobility and Transport for the European Commission. Gilles Fartek is a senior expert in defence, international affairs, mobility and transport, and drones. He is Director of European and NATO affairs for Integra Consult A/S, Denmark and co-president of Hyperloop Denmark.

Federico Franchina is a Senior Assistant Professor in Maritime, Air and Transport Law at the University of Messina in Italy. He is also a secondee at the European Organization for the Safety of Air Navigation (EUROCONTROL) in Brussels, Belgium, and regularly advises aviation stakeholders and governmental entities on air law matters. Máté Gergely is an International Relations Officer in the Transport Security Unit at the Directorate-General for Mobility and Transport for the European Commission. Christina Giannopapa is the Head of the Office of the Executive Director at the European Union Agency for the Space Programme (EUSPA). Ben Graham-Evans is a Partner at Smith Gambrell & Russell, LLP. He is an experienced UK-qualified transaction Lawyer specializing in international aircraft finance and leasing transactions. María Jesús Guerrero Lebrón is a Professor at the Pablo de Olavide University, in Seville, Spain. Helena Hallauer has a Master of International Relations and is the Head of Legal and International Affairs at the Federal Office of Civil Aviation of Switzerland. Donal Patrick Hanley, FRAeS is an Associate Professor and the Associate Director at the Institute of Air and Space Law at McGill University, Canada.

Yannick Felici is a Corporate Officer in the Office of the Executive Director at the European Union Agency for the Space Programme (EUSPA).

Moritz G. Heile is a Lawyer based in Berlin, Germany, specializing in aviation law. He is the Founder of the law firm GOODVICE as well as a visiting Lecturer in Air Law at the University of Cologne in Germany.

Francesco Fiorilli is a Senior Associate in the aerospace team at the law firm HFW, based in its Riyadh office, Saudi Arabia. He holds an LL.M. (Adv.) in Air and Space Law from Leiden University, and is qualified as Avvocato in Italy and as a Solicitor in England and Wales.

Oliver Heinrich is co-founder of and a Partner at BHO Legal in Cologne, Germany – a boutique law firm for European high technology projects in the space, drones, defence, and ICT sectors.

Bruno Franchi is the President of the Italian Civil Aviation Safety Investigation Authority (ANSV) and a Professor of Air Law at Modena and Reggio Emilia University in Italy.

Claudia Hess is a Partner at Urwantschsky Dangel Borst, Neu-Ulm, Germany, joining in 2007 and becoming Partner in 2012. Mikko T. Huttunen, LL.D. is a Senior Researcher and the Vice Dean of Education

xii  elgar concise encyclopedia of aviation law in the Faculty of Law at the University of Lapland in Finland. Cinzia Ingratoci is a Full Professor of Air and Maritime Law at the University of Messina in Italy and a member of the University Centre of Transport Studies (CUST).

of Puerto Rico, a Juris Doctor (cum laude) from the Inter American University of Puerto Rico, and an Adv. LL.M. in Air & Space Law from Leiden University in the Netherlands.

Morten Hans Jakobsen heads up the Aviation department at Gorrissen Federspiel in Copenhagen, Denmark.

Adele Marino is an Associate Professor of Maritime and Transport Law at the University of Messina in Italy and a Member of the University Centre of Transport Studies (CUST).

Sam Jonkeren is a Legal Consultant at Norton Rose Fulbright LLD & CCO of Green Flag Solutions, Amsterdam.

Andrea Marotta is the Director of Environment and Sustainable Mobility at the Italian Civil Aviation Authority (ENAC).

Saachi Juneja is an international lawyer working as the Airport Development and Leasing Manager in the Montreal office of Air Canada. She received her Masters in Law (LL.M.) from the University of California, Berkeley School of Law.

Anna Masutti is a Tenured Professor of Air and Space Law at the University of Bologna, Italy, Attorney at Law with long experience in aviation law and a Partner of RPLT RP legalitax, an Italian law firm.

Ali Kartal, CPL/ME/IR, MRAeS is an aviation Lawyer and a Partner at the law firm Kartal in Istanbul, Turkey. Anna Konert is a Professor in Air Law and an Attorney at Law. She is the Dean of the Faculty of Law and Administration and Director of the Institute of Air and Space Law at Lazarski University in Warsaw, Poland. Ms. Konert is also the Director of the Lazarski Aviation Academy and a Committee Member of the European Air Law Association. Dejian Kong, PhD is an Assistant Professor of Aerospace Law at the China University Political Science and Law (CUPL) in China. Malte Krumm, LL.M. completed his legal clerkship at BHO Legal in Cologne, Germany. Ajay Kumar is the Managing Partner of the law firm, KLA Legal, based in Delhi. He specializes in aircraft leasing and finance matters. Robert Lawson, KC is a Partner of Clyde & Co LLP, based at its London office in the UK. Jae Woon Lee, PhD is an Associate Professor of Law at the Chinese University of Hong Kong (CUHK). Julian D. Lourido Alonso is a lawyer admitted to practice in the Commonwealth of Puerto Rico and the United States Court of Appeals for the First Circuit in Boston, MA. He holds a B.A. in Social Sciences with a major in Economics from the University

Andreas Mateou is an Associate Professor at Emirates University, UAE. He has presented papers on international safety at Air Law conferences and is a visiting professor at a number of universities. He is a member of ISASI, FSF and EuroControl Just Culture Taskforce. Sofia Mateou is an Aviation Legal Consultant and a Professor of Air Law with over twentyfive years’ experience. She provides training to aviation professionals and organisations, lectures on aviation law at both undergraduate and postgraduate levels and is a thesis supervisor at Master’s and PhD levels. Drielle Amate Matta is the Director of the Labour and Employment Law department at Montgomery & Associados, São Paulo, Brazil. Pablo Mendes de Leon is a Professor of Air and Space Law at The Hague in the Netherlands and is a partner in Lexavia aviation consulting, Amsterdam. Neil Montgomery is the Founding and Managing Partner of Montgomery & Associados, São Paulo, Brazil, and Head of the Transportation, Labour and Employment Law Department. He is also a Diversity and Inclusion Officer for the International Bar Association’s Aviation Law Committee. Francesco Morandi, PhD is a Full Professor of Tourism and Transport Law at the University of Sassari in Italy, a legal

contributors  xiii consultant and Attorney at Law admitted to the Supreme Court. Massimiliano Musi is a Full Professor of Navigation and Transport Law at the Alma Mater Studiorum University of Bologna, Italy and a member of the Bologna Bar Association. Ravi Nath is a lawyer based in Delhi, advising on financial transactions regarding aircraft, and Managing Partner in RNClegal/Rajinder Narain & Co. Peter Neenan is a Partner in the aviation team at Stewarts, a UK-based law firm specializing in acting for passengers and their families following major aviation disasters.

Alessandro Perrone is a Senior Legal & Compliance Counsel at Brussels Airlines for the Lufthansa Group. Gonzalo Torres Picazo is Senior Legal Counsel at Brussels Airlines for the Lufthansa Group. He has also worked at Ryanair as Regulatory & Competition Law Executive and is an alumnus of the International Institute of Air and Space Law (IIASL) of Leiden University, the Netherlands. Laura Pierallini is the Founder and name Partner of Pierallini Studio Legale, and a contract Professor of Tourism Law and Air Law at the LUISS University of Rome, Italy.

Christopher Neville is the Safety Manager at the European Union Agency for the Space Programme (EUSPA).

Małgorzata Polkowska, PhD is a Professor, and Head of International and European Unit, at the War Studies University in Warsaw, Poland.

Jens Erik Kundby Nielsen, PhD studied Maritime Law at the University of Copenhagen and provides legal assistance to a broad range of parties within the transport sector.

Sorana Păun Pop, PhD is an Aeronautical Inspector for the Romanian Civil Aviation Authority and an aviation policy and regulatory affairs expert.

Ridha Aditya Nugraha, LL.M. is an Assistant Professor as well as the Head of Air and Space Law Studies at Universitas Prasetiya Mulya for the International Business Law Program in Indonesia.

Katherine B. Posner is a Partner at Condon & Forsyth in New York, USA.

Elena Orrù, PhD is an Associate Professor of Maritime and Air Navigation Law at the Department of Legal Studies at the Alma Mater Studiorum University of Bologna in Italy and a Member of the Bologna Bar Association. Larissa Paganelli is a Senior Associate of the Transportation Law department at Montgomery & Associados, São Paulo, Brazil. Ricardo Pazos, PhD is an Assistant Professor (Profesor Colaborador Asistente) at the Universidad Pontificia Comillas de Madrid (ICADE) in Spain. He was a Postdoctoral Researcher at the Universidade de Santiago de Compostela, benefiting from a scholarship within the programme of the Xunta de Galicia (2017–2020), and an Assistant Professor at the Universidad Autónoma de Madrid (2020–2022). Francesca Pellegrino is a Full Professor of Maritime and Air Law in the Department of Law at the University of Messina and the Director of the University Centre for Transport Studies (CUST) in Italy.

Ann Frédérique Pothier is the Head of the Director’s Office and Senior Legal Adviser, Directorate CRCO and Finance, at EUROCONTROL, Brussels, Belgium. Mariagiulia Previti has a PhD in Maritime and Air Law from the University of Messina in Italy. Alessio Quaranta was elected as President of the European Civil Aviation Conference (ECAC) on 12 July 2021. He is also the ECAC Focal Point for External Relations. He has been ENAC (Italian Civil Aviation Authority) Director General since 26 June 2019. Timothy Ravich, J.D. is an Associate Professor of Aviation Law (and Chair Interim) in the Department of Legal Studies at the University of Central Florida and Founder and Principal of Empennage Consulting LLC. Jacomo Restellini is a Senior Associate at the Geneva office of Lenz & Staehelin. He specializes in various aspects of labor and social security law, as well as commercial contracts and litigation matters. Sybille Rexer works as an Attorney (Counsel) at ASD | ARNECKE SIBETH

xiv  elgar concise encyclopedia of aviation law DABELSTEIN Rechtsanwälte Steuerberater Partnerschaftsgesellschaft mbB in Hamburg, Germany in the area of transportation law.

Kate Staples was the General Counsel to the UK Civil Aviation Authority from September 2010 to January 2022.

Maria Piera Rizzo is a full Professor of Air and Maritime Law in the Department of Law at the University of Messina and a Member of the University Centre of Transport Studies (CUST) in Italy.

İlke Işın Süer is an Attorney at Law at the Çakmak Attorney Partnership in Turkey.

Alessandra Romagnoli, PhD is an Associate Professor of Navigation and Transport Law in the Department of Legal Studies at Bologna University in Italy. Gavin Rutter, Adv. LL.M. is a Legal Adviser at the UK Civil Aviation Authority. Piotr Samson is Director General of Civil Aviation in the Republic of Poland. He is a manager and air transport expert with over 25 years of professional experience.

Joseph Szyliowicz is an Emeritus Professor in the Josef Korbel School of International Studies at the University of Denver in the USA. Rebekah Tanti-Dougall, LL.B., LL.M. (IMLI), LL.D. is a Partner at the Advocates, Tanti-Dougall & Associates law firm, specializing in aviation and cybersecurity. Chiara Tincani, PhD is an Associate Professor in the Department of Juridical Sciences at the University of Verona in Italy.

Iva Savić, PhD is an Associate Professor in the Faculty of Law at the University of Zagreb in Croatia.

Andrea Trimarchi, PhD, (Adv.) LL.M. is a guest Lecturer in International and Aviation Law at the University of Verona in Italy and at the University of Cologne in Germany.

Francis Schubert is an Adjunct Professor, IASL at the McGill University and Legal Counsel for the Civil Air Navigation Services Organisation (CANSO).

F. Robert van der Linden, PhD is Curator of Air Transportation at the Smithsonian National Air and Space Museum, Washington, DC, USA.

Annemarie Schuite, LL.M. is the Senior Legal Officer at the Dutch Safety Board in the Netherlands.

Stamatis Varsamos is a Senior Legal Advisor at Athens International Airport in Greece.

Benjamyn I. Scott, PhD is an Assistant Professor in the International Institute of Air and Space Law and for the Center for Law and Digital Technologies at Leiden University in the Netherlands. Anna L. Melania Sia, PhD is a tenured Associate Professor of Air, Maritime, and Transport Law in the Department of Law, Economics and Sociology at the Magna Grӕcia University in Catanzaro, Italy. Carlos Sierra is a Senior Managing Partner at Abogados Sierra, Mexico. Jane M. Sigda is a Partner at Condon & Forsyth in New York, USA. Anthony Smoker is a Teaching Assistant for the Master of Sciences in Human Factors and System Safety at Lund University, Sweden.

Emilia Vermiglio is a contract Professor in Navigation Law at the Mediterranean University of Reggio Calabria and is a Research Fellow in the University of Messina, Italy. Simone Vernizzi, PhD is an Associate Professor of Air Law and Transport Law in the Department of Law at the University of Modena and Reggio Emilia in Italy. Ezio Villa is the Head of the Legal and Procurement department and DPO at the European Union Agency for the Space Programme (EUSPA). Marc Wiesner is a Legal Counsel at Deutsche Lufthansa AG, Frankfurt am Main, Germany. Mia Wouters is a Partner at GDS Advocaten in Brussels and a Professor in Aviation Law at the University of Ghent, Belgium. Luca Zamparini is an Associate Professor in the Department of Law (Economic

contributors  xv Division) at the Università del Salento in Lecce, Italy. Alessandro Zampone is a Full Professor of Maritime and Air Law in the Department of Law at University of Rome “La Sapienza”, Italy, and Attorney at Law.

Pai Zheng, PhD is an Assistant Professor of International Law at East China University of Political Science and Law (ECUPL) in Shanghai, China. Serap Zuvin is an Attorney at Law and Partner at the Çakmak Attorney Partnership in Turkey.

Preface The Elgar Concise Encyclopedia of Aviation Law is a new publication that provides original high-level analyses of aviation law topics by specialized and distinguished contributors from the most relevant jurisdictions worldwide. These analyses are categorized in entries addressing subjects that seek to provide the most comprehensive coverage of the origin, developments, and challenges of this dynamic field of international law. The rapid evolution of aviation law, boosted by the introduction of new and ground-or air-breaking technologies, has made the Encyclopedia even more necessary for lawyers, practitioners, academics, students, and other interested individuals. The entries are structured in such a way as to always give a general account of the topic,

xvi

describe its legal framework, and identify the most relevant case law. They are also designed to emphasize the most recent developments in each topic, while considering current and future trends internationally. The Encyclopedia is characterized by the richness of its entries, to which academics from leading universities and aviation legal experts, representatives of professional agencies, and practitioners based in all parts of the world have contributed. For these reasons, the Encyclopedia is an indispensable working tool for those who are already active in the aviation sector and for those who would like to be involved with it. Professor Anna Masutti Professor Pablo Mendes de Leon

1. Accident See entries: 17. Aircraft Accident Investigation; 39. Aviation Insurance; 42. Aviation Safety; 43. Aviation Security (EU); 70. European Union Aviation Safety Agency; 84. Hijacking of Aircraft; 94. Just Culture (Aviation); 97. Liability; 108. The Montreal Convention (1999); 132. Safety Investigation Authorities

1

2. Aerial Navigation

(ANS), Air Traffic Management (ATM), and Air Traffic Control (ATC), the purpose of which is to prevent collisions between aircraft in the air and between aircraft and obstacles on the ground, as well as to speed up and maintain an orderly flow of air traffic. In particular, ATC is used in combination with related services, including meteorology, search and rescue, telecommunications, and the transmission of aviation data.

I. Introductory Remarks Aerial navigation is a generic concept used to identify the set of operations carried out by ground control or on-board facilities aimed at planning, recording, and controlling the exact position of an aircraft (airplane, helicopter, missile, UAS, etc.) in flight, from a starting to a destination point on the Earth’s surface. Aerial navigation consists in determining the route that best meets the safety and efficiency requirements for an aircraft in flight. During the flight path, the exact position of the aircraft should be constantly and continuously tracked, using reference information obtained from ground services. The related calculations shall be made in a short time, considering the high speed at which the aircraft travels on routes that often have a high density of air traffic; to avoid further costs and delays, excessive fuel release, or other risks to the safety of the aircraft, the pilot must be constantly aware of the aircraft’s position. Moreover, aerial navigation refers also to the movement of the aircraft from one place to another, and it benefits from maps, astronomical observations, signals of wireless receiver, and visible landmarks. More recently, technological development led to the implementation in the aviation sector of several navigation services and devices and to the extension of the application of advanced technology. More generally, the definition of aerial navigation, its elements, and technics have brought significant changes in the aviation industry, making it more effective and efficient. This is a result of the innovations that have made air travel the world’s preferred means of long-distance transportation. In this regard, the key to a successful aerial navigation is always represented by an awareness of the aircraft location during its route: the Distance Measuring Equipment reminds the location of the aircraft and demonstrates the direct distance from the transmitter, since digital indicators in the aircraft constantly measure this distance in terms of mile. As mentioned above, aerial navigation closely deals with air traffic movement and with the concepts of Air Navigation Services

II.

Historical Perspective

The principles and instruments of aerial navigation originated in sea navigation, which was developed in ancient times. From a historical perspective, different methods and aids have been used to orientate and perform maritime navigation. Aeronautical charts were the very first navigation aid, through which pilots determined airspace borders, their location, safe altitude, the best route to a destination, navigation aids along the way, alternative landing sites in an in-flight emergency, and other useful information, such as radio frequencies. Nowadays, to determine its basic elements (including course, drift angle, course angle, airspeed and ground speed, altitude, and the coordinates of the aircraft’s location), aerial navigation benefits from modern technology and advanced instruments and services, such as geotechnical devices, radio aids, illumination devices, and the Global Navigation Satellite System (GNSS).

III.

Legal Framework

From a legal point of view, Chapter IV (“Measures to facilitate air navigation”) of the Chicago Convention on International Civil Aviation signed in Chicago, 7 December 1944 (henceforth also referred to as the 1944 Chicago Convention), represents the main core for the international provision of ANS. Article 22 states: Each contracting State agrees to adopt all practicable measures, through the issuance of special regulations or otherwise, to facilitate and expedite navigation by aircraft between the territories of contracting States, and to prevent unnecessary delays to aircraft, crews, passengers and cargo, especially in the administration of the laws relating to immigration, quarantine, customs and clearance.

2

aerial navigation  3 Article 22 of the 1944 Chicago Convention is a crucial element in international air law, providing contracting States with a regulatory tool to produce and apply the rules of aerial navigation. It outlines the basis for the development of subsequent principles of aerial navigation, including the rules of the air, the principles for aircraft registration, and the control of air traffic. To effectively implement the provisions of Article 22 of the 1944 Chicago Convention, contracting States adopted a number of measures. First of all, they developed and implemented national aviation laws and regulations aiming at providing harmonized rules for airworthiness requirements, ATC regulations, and aviation safety and security. Nevertheless, Article 22 also implied the need for contracting States to regularly review and improve their air navigation systems. This involves conducting regular assessments of aircraft performance and ATC procedures and ensuring that the air navigation system meets the requirements sets out by ICAO and other international standards. Furthermore, in light of Article 22, to ensure the effective performance of aerial navigation services, contracting State are called on to take all appropriate actions to ensure that the rules of the air are followed and enforced within their airspace. This includes, among others, issuing permits for aircraft operations, enforcing safety requirements, and providing penalties for violations of the rules of the air. Moreover, Article 22 provides that each contracting State shall adopt all practical measures to facilitate and expedite aerial navigation, such as the appointment of a national competent authority in charge of assessing the safety and security of the air navigation system within its jurisdiction. Consequently, the competent authority shall also be responsible for the enforcement of the rules of the air and for the registration of aircraft in the State. Focusing on the most important contemporary issues, national measures adopted against the spread of COVID-19 have had particular relevance. The COVID-19 pandemic severely affected all transport modes and required the implementation of measures restricting mobility around the world, highlighting once again the importance of Article 22. Several travel restrictions in the aviation sector were imposed in order to slow down the spread of the virus during the years

2020–2022. According to the International Health Regulations of the World Health Organization: If clinical signs or symptoms and information based on fact or evidence of public health risk is found on board conveyances on an international voyage, the competent authority shall apply control measures at the point of entry, or, if not able to carry out the required measures, the competent authority shall, nevertheless allow the departure of the aircraft, subject to informing the competent authority at the next known point of entry of the evidence found and the control measures required.

Consequently, the aim of these measures is to ensure the maintainability of the aviation sector and the continuity of global aerial navigation without any suspension. Another rule, crucial for the definition of the concept of aerial navigation, is Article 28 of the 1944 Chicago Convention, which regulates the facilitation of aerial navigation by assigning certain responsibilities to contracting States. Article 28 states: Each contracting State undertakes, so far as it may find practicable, to: (a) Provide, in its territory, airports, radio services, meteorological services and other air navigation facility to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention; (b) Adopt and put into operation the appropriate standard systems of communications procedure, codes, markings, signals, lighting and other operational practices and rules […] (c) Collaborate in international measures to secure the publication of aeronautical maps and charts in accordance with standers.

By means of the responsibilities set out in Article 28, to facilitate international aerial navigation, each contracting State shall act in compliance with implemented rules and standards so as to ensure the efficiency of airports, radio services, meteorological services, and other air navigation facilities, as far as they deem it possible. More generally, a State is obliged to provide air traffic navigation services to any aircraft of another contracting State to transit to, from, or over its territory and to harmonize such services with international Standards and Recommended Practices. In relation to this latest aspect, the provision of Article 28 is anna masutti

4  elgar concise encyclopedia of aviation law further complemented by the principles provided under Article 37 of the 1944 Chicago Convention, which compels contracting States to cooperate to achieve the utmost possible degree of uniformity in regulations, standards, procedures, and organization with regard to aircraft, personnel, airways, and auxiliary services and on all matters where such uniformity will enhance rapidity and improve aerial navigation.

IV. Article 15 of the 1944 Chicago Convention Lastly, in an effort to further allocate responsibilities to ensure the efficient implementation of aerial navigation activities, Article 15 of the 1944 Chicago Convention compels every contracting State to allow other contracting States’ aircraft to use its airports, which are open to public, under the same terms and conditions, in order to provide for the safety and rapidity of aerial navigation. This includes the utilization of radio and meteorological services without prejudice to the provisions of Article 68. To do so, in accordance with the last paragraph of Article 15, contracting States undertake not to discriminate against aircraft of other States in terms of charges for the use of the aerial navigation facilities at airports open to the public and: no fees, dues or other charges shall be imposed by any contracting State in respect solely of the right of transit over or entry into or exit from its

anna masutti

territory of any aircraft of a contracting State or persons or property thereon.

Article 15 has subsequently been interpreted by contracting States to allow the imposition of those charges, as long as they are necessary to recover the costs for the provision of the facilities that the States shall offer in order to enhance the performance of aerial navigation services.

V. Concluding Remarks As a generic concept, aerial navigation has been substantiated through the international provisions mentioned above, addressing it from different perspectives. Thus, the good functioning of aerial navigation operations imposes numerous obligations on contracting States, which are therefore obliged to ensure the implementation of regulatory and practical measures and to regularly assess the level of aerial navigation services performed within their national airspace. Anna Masutti

References Air Navigation, in The Great Soviet Encyclopedia, 3rd Edition, The Gale Group, Inc., 2010. N. Bowditch, The American Practical Navigator, An Epitome of Navigation, Vol. 9. National Geospatial-Intelligence Agency, Springfield (Virginia), 2019, p. 381. P. S. Dempsey, Air Navigation, Institute of Air & Space Law, McGill University, 2015.

3. Aeronautical Information1

systems. Corrupt or erroneous aeronautical data can potentially affect the safety of air navigation. Therefore, it is crucial that the information is provided in a standard and uniform format. According to Annex 15, each contracting State must provide an Aeronautical Information Service (AIS) or delegate this to an appropriate non-governmental agency. The role of AIS is to ensure the flow of information and data to flight operations personnel, to the Air Traffic Service (ATS) units responsible for flight information service, and to the services responsible for pre-flight information. Therefore, an AIS provider is defined as the organization responsible for the provision of an Aeronautical Information Service. In the EU, AIS providers must be certified by an EU Member State in accordance with Commission Regulation (EC) No. 2096/2005, laying down common requirements for the provision of air navigation services. The international and supranational rules regulate responsibilities and functions, whereas they provide guidance for the organizational development of AIS, including the transition to Aeronautical Information Management (AIM). AIM is defined as the “dynamic, integrated management of aeronautical information through the provision and exchange of quality-assured digital aeronautical data in collaboration with all parties” (Annex 15, 1.1 Definitions). The Aeronautical Information Regulation and Control (AIRAC) system bases the “establishment, withdrawal or significant changes upon a series of common effective dates at intervals of 28 days” (Annex 15, 6.2.1). Aeronautical information is handled differently depending on its urgency, operational significance, scope, volume, and length of time it will remain valid and relevant to users. It may vary widely in terms of the duration of its applicability. For example, information related to infrastructures, such as airports and their facilities, may remain valid for a long time, or it will be valid only for a relatively short period of time, in case of reparation. The urgency attached to information may also vary, as well as the extent of its applicability in terms of the number of operators or types of operations affected by it. There is not a standard length. The provisions may include graphics or not, but they should always be standardized following the rules established by ICAO.

I. Aeronautical Information: The Role of the Aeronautical Information Service Aeronautical information includes all the information and data necessary for the safety, regularity, and efficiency of air navigation. ICAO quality requirements for aeronautical data are accuracy, integrity, resolution, completeness, timeliness, traceability, and format. Annex 15 to the Convention on International Civil Aviation focuses on Aeronautical Information Services and establishes provisions, that is, Standards and Recommended Practices (SARPs), on the disposition of every piece of information. For example, each element of the Integrated Aeronautical Information Package, as discussed here, has to be drawn up in English for those parts expressed in plain language. Provisions related to the spelling and the unit of measurement are the following: place names shall be spelled in conformity with local usage, transliterated, when necessary, into the Latin alphabet; units of measurement used in the origination, processing, and distribution of aeronautical data and aeronautical information shall be according to the decision taken by the respective State; and ICAO abbreviations shall be used whenever they are appropriate and their use will facilitate distribution of aeronautical data and aeronautical information (Art. 1.3 Annex 15). This standardization and accuracy of the information is one of the main challenges not only for ICAO but also for supranational agencies. Commission Regulation (EU) No. 73/2010 of 26 January 2010 laying down requirements on the quality of aeronautical data and aeronautical information for the Single European Sky implements the relevant SARPs in the European Union (EU). This regulation pertains to the origination, production, storage, handling, processing, transfer, and distribution of aeronautical data and aeronautical information. The importance of such data changed significantly with the implementation of area navigation (RNAV), Required Navigation Performance (RNP), airborne computerbased navigation systems, and data link 5

6  elgar concise encyclopedia of aviation law Management of meaningful information for decision support and more autonomy in decision-making requires the transition from paper-based, product-centered Aeronautical Information Service (AIS) to datacentric and digital Aeronautical Information Management (AIM). Because of this, Annex 15 to the Chicago Convention has been restructured and amended to clarify the scope, role, main functions, products, and services of AIM and the associated update mechanisms. This Annex must be completed by the Aeronautical Information Services Manual, whose latest version is the seventh edition, from 2021.

II. Aeronautical Information Package 1. General Remarks Annex 15 of the Chicago Convention specifies that aeronautical information must be published as an Integrated Aeronautical Information Package. This package is composed of the following elements: ●

●

● ●

Aeronautical Information Publication (AIP), including amendments and supplements; NOTAM, including a list of valid NOTAM; Pre-flight Information Bulletins (PIB); Aeronautical Information Circulars (AICs).

2. Aeronautical Information Publication (AIP) According to ICAO Annex 15, an Aeronautical Information Publication (AIP) is a publication issued by or with the authority of a State and containing aeronautical information of a lasting character essential to air navigation. The requirements of every specimen are gathered not only in the Annex but also in the subsequent material, like the Manual (Aeronautical Information Services Manual, Doc 8126, Volume III). An AIP contains details of rules, procedures, and other information pertinent to the operation of aircraft in a contracting State of ICAO. It is usually issued by or on behalf of the competent civil aviation administration and constitutes the basic information source for permanent information and long-duration temporary changes. The structure and contents of the document are standardized maría jesús guerrero lebrón

by international agreement through ICAO. The specimen document contains three parts – GEN (general), ENR (en route), and AD (aerodromes) – besides pages, tables, and charts. Following these instructions, every AIP should be as close as possible to the specimen. In this way, the standard presentation makes it easier for users to locate specific information. AIPs are not simple, but commonly complicated documents. It is not proper to consult their contents and format in the air. Because of this, commercial organizations furnish relevant extracts to form flight information publications, with a more convenient size and arrangement to be used inside the aircraft. The content of every AIP must be updated by regular revisions pursuant to a fixed cycle. In that sense, to the correct interpretation of the information disclosed in these documents, an AIP Amendment is a permanent change to the information contained in the AIP, while an AIP Supplement is a temporary change to the information contained in the AIP, which is published by means of special pages. 3. NOTAM A NOTAM, Notice to Airmen or Notice to Air Missions (according to FAA definition), is a notice containing information essential to personnel concerned with flight operations (the establishment, condition or change in any aeronautical facility, service, procedure, or hazard), the timely knowledge of which is essential to personnel concerned with flight operations but not known far enough in advance to be publicized by other means. To understand the role of these documents, NOTAM state the abnormal status of a component of the National Airspace System, not the normal status. NOTAM are communicated by the AIS using the fastest available means to all addressees for whom the information is assessed as being of direct operational significance, and who would not otherwise have at least seven days’ prior notification. Flight crew’s access current NOTAM during pre-flight planning via airport flight briefing facilities provided to all aircraft operators or via an alternative “tailored access” system provided by their company, which will provide access to NOTAM that are relevant only to their intended flight.

aeronautical information  7 According to FAA, NOTAM information is classified into several categories. The distinction between class I and class II is related to the way they are distributed: class I are distributed by means of telecommunication, and class II are published in the Notices to Airmen Publication (NTAP), which is issued every 28 days. Trigger NOTAM serve to alert those who maintain aeronautical databases that specific changes will be effective soon, usually at the next AIRAC date. A trigger NOTAM contains a brief description of the contents of the amendment or supplement, the effective date, and the reference number of the amendment or supplement. It is usually valid for 14 days. Although NOTAM are encoded, for reasons of conciseness and precision the code is usually sufficiently self-evident to allow the user to identify a hazard. The ICAO NOTAM Format is composed of the signification, i.e., uniform abbreviated phraseology assigned to the ICAO NOTAM Code complemented by ICAO abbreviation, indicators, identifiers, designators, call signs, frequencies, figures, and plain language. Related to the issuing format, the EUROCONTROL Digital NOTAM (xNOTAM) Project is managed in cooperation with the US FAA and would make NOTAM suitable for automatic processing. This will enable automated systems that support ATC and air navigation to have a more actual view of the aeronautical environment, thus maintaining and enhancing existing levels of safety and efficiency of the ATM system. Another criterion of NOTAM is the geographical scope, that is, in terms of international or domestic reach. We also can distinguish between civil and military. FDC NOTAM: Flight Data Center NOTAM are NOTAM that are regulatory in nature, such as changes to an instrument approach procedure or airway. Temporary Flight Restrictions (TFRs) are also issued as FDC NOTAM. Center Area NOTAM: An FDC NOTAM issued for a condition that is not limited to one airport, which is why it is filed under the Air Route Traffic Control Center (ARTCC) that controls the airspace involved. TFRs, airway changes, and laser light activity are examples of this type of NOTAM. This type becomes very important to know when looking for NOTAM on your own.

NOTAM (D): A NOTAM given (in addition to local dissemination) distant dissemination beyond the area of responsibility of the Flight Service Station. This type of NOTAM now includes (U) NOTAM and (O) NOTAM. (U) NOTAM are unverified NOTAM, which are those that are received from a source other than airport management and have not yet been confirmed by management personnel. These NOTAM are allowed only at those airports where airport management has authorized it by Letter of Agreement. (O) NOTAM are other aeronautical information that does not meet NOTAM criteria but may be beneficial to aircraft operations. Examples of situations that are informed through NOTAM include hazards such as airshows, parachute jumps, and glider or microlight flying; flights by important people, such as heads of State; closed runways, taxiways, etc.; unserviceable radio navigational aids; airspace restrictions due to military exercises; and unserviceable lights on tall obstructions and temporary erection of obstacles near airfields (e.g., cranes). Snow conditions are notified, not by NOTAM but by a special message called SNOWTAM (defined as a special series NOTAM notifying the presence or removal of hazardous conditions due to snow, ice, slush, or standing water associated with snow, slush, and ice on the movement area, by means of a specific format). Similarly, volcanic ash is notified as a special message known as an ASHTAM. Full details concerning the content and distribution of NOTAM, SNOWTAM, and ASHTAMs are contained in ICAO Annex 15. On any given day there are about 35,000 active NOTAM circulating in the aeronautical world. Due to the COVID-19 pandemic, the total number of NOTAM decreased by 5% in 2020. ICAO launched a new Global Campaign on NOTAM improvement in order to significantly reduce the number of old NOTAM still in circulation. 4. Pre-flight Information Bulletins (PIB) The PIB is a presentation of operationally significant valid NOTAM, prepared directly prior to the flight. It is a kind of recompilation to present all the updated relevant information at the last moment. Examples of relevant information that would be included in a PIB are the following: maría jesús guerrero lebrón

8  elgar concise encyclopedia of aviation law alerts to erroneous data for the arrival airport (displaced threshold/wrong coordinate decimals); a SNOWTAM combined with a closed runway; closed taxiways and other relevant events, such as temporary obstacles at the departure airport; and combined MET and NOTAM information in en route phase (SIGMET and active military area). 5. Aeronautical Information Circulars (AICs) An Aeronautical Information Circular (AIC) is a notice containing information that does not qualify for the origination of a Notice to Airmen or for inclusion in the AIPs, but which relates to flight safety; air navigation; and technical, administrative, or legislative matters (ICAO Annex 15, 1.1 Definitions). María Jesús Guerrero Lebrón

Note 1. Any views expressed in this contribution are those of the author only.

References “Aeronautical Information Publication”, Skybrary. Commission Regulation (EC) No 2096/2005, laying down common requirements for the provision of air navigation services (Official Journal of the European Union n L335/13, 21 December 2005). Commission Regulation (EU), núm. 73/2010, of 26 January 2010, laying down

maría jesús guerrero lebrón

requirements on the quality of aeronautical data and aeronautical information for the single European sky (Official Journal of the European Union n L 23/6, 27 January 2010). Eurocontrol, “International NOTAM Statistics 2000–2020”. ICAO, Annex 4 to the Convention on International Civil Aviation, Aeronautical Charts, eleventh edition, July 2009. ICAO, Manual on the Quality Management System for Aeronautical Information Services, 2010 (Doc. 9838). ICAO, Aeronautical Information Services Provided by States, June 2014 (Doc. 7383/102). ICAO, Annex 15 to the Convention on International Civil Aviation, Aeronautical Information Services, fifteenth edition, July 2016. ICAO, Aeronautical Chart Manual, third edition, 2016 (Doc. 8697). ICAO, Procedures for Air Navigation Services (PANS). Aeronautical Information Management, first edition, 2018 (Doc 10066). ICAO, Aeronautical Information Services Manual, Doc. 8126, seventh edition, 2021. “NOTAM”, Skybrary. Pelchen-Medwed, R., and Porosnicu, E., “Enhanced Pilot Situational Awareness Through the Digital/Graphical Pre-Flight Briefing Concept or ‘From Smoke Signals to the Digital Pre-Flight Briefing Concept’”, HindSight 23, Summer 2016, pp. 66–69.

4. Air Cargo1

in warfare or against persons, including parts, whether components or accessories, for such weapon, ammunition or article.” As a result, the framework for international transport of defense-related goods remains significantly fragmented as it relies on the policy interests of each contracting State.

I. Air Cargo in the Chicago Convention From a public international aviation law perspective, air cargo is anchored in the constitutional architecture of cross-border aviation established by the Convention on International Civil Aviation done at Chicago on 1 December 1944 (CC44). Air cargo is a component of the exchange of traffic rights established under this convention, and it is included in the definition of “air service” under Article 96 (a) as well as in the definition of Scheduled International Air Service adopted by the Council in 1952 (ICAO 1952). Under Article 5 CC44, carriers may discharge cargo in another contracting State on unscheduled flights and pick up cargo there for carriage to the home State of the carrier. At the same time, air cargo is implicitly covered by Article 6 and expressly addressed in the cabotage regulation of Article 7 (Mendes de Leon [2017]). Chapter IV CC44 addresses other areas of regulation relevant to air cargo, such as facilitation measures in Article 22, coordination of custom formalities under Article 23, and documentation requirements of the cargo manifest under Article 29. While detailing such measures, Annex 9 defines air cargo as “any property carried on an aircraft other than mail, stores and passenger baggage,” whereas Annex 17 adds “mishandled baggage” to the list of exclusions. In addressing customs duties exemptions, Article 24 CC44 separates aircraft supplies and equipment from the transported freight. Under the Chicago Convention, the notions of mail, baggage, and supplies are thus considered separately from air cargo. Article 35 sets out certain cargo restrictions and makes the possibility of transporting “munitions of war or implements of war” subject to the permission of the contracting State concerned by such flight. The same applies to any other articles that a contracting State may identify, provided that no discrimination is made between national and foreign aircraft. Contracting States can determine what constitutes a munition of war under Article 35. For example, Schedule 1 of the United Kingdom Air Navigation Order 2016 defines munitions of war as any weapon, ammunition, or explosive article that is ultimately “designed or made for use

1. Safety and Dangerous Goods The second part of Article 35 CC44 and the following SARP of Annex 18 cover the transport of dangerous goods by air. The Annex defines them as “[a]rticles or substances which are capable of posing a risk to health, safety, property or the environment.” The Technical Instructions for the Safe Transport of Dangerous Goods by Air published by ICAO complement this safety-driven legal framework (ICAO 2021). Harmonization reaches beyond the aviation industry, as dangerous goods classifications build upon the nine hazard classes adopted by the United Nations Committee of Experts (UNECE 2021). Safe transport of dangerous goods is one of the most relevant areas of technical regulation of air cargo and is further standardized on an industry level by Annex A of IATA Resolution 618, commonly known as the yearly updated IATA Dangerous Goods Regulations. 2. Security Regulations Security provisions play an important role in preventing acts of unlawful interference with air cargo shipments. Chapter 4.6 of Annex 17 CC44 sets out security standards for goods carried on aircraft. The main feature of the related national and regional air cargo security programs is establishing a transport-chain security process centered on the screening of the goods transported by air. One such example from the European Union (EU) is Regulation (EC) No 300/2008, covering common rules on civil aviation security. There, cargo is defined as “any property intended for carriage on an aircraft, other than baggage, mail, air carrier mail, air carrier materials and in-flight supplies” (Article 2 (1) 25). As opposed to passenger operations, cargo screening does not necessarily occur at the airport. Pursuant to Standard 4.6.5 of Annex 17 CC44, many jurisdictions have established aviation security screening programs that allow shippers, freight forwarders, and other economic operators certified as regulated agents or known consignors to deliver pre-screened cargo to carriers, thus 9

10  elgar concise encyclopedia of aviation law facilitating its movement while maintaining a high degree of security throughout the transport chain.

II. Air Cargo Liability On the private international air law front, air cargo maintains a central place in the uniform regimes of the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 (WC29) and the Convention for the Unification of Certain Rules for International Carriage by Air done at Montreal on 28 May 1999 (MC99). While these treaties do not define air cargo, they explicitly separate it from the notions of mail and baggage. Goods traveling with passengers or checked by them fall under the separate baggage liability regimes. The Universal Postal Union (UPU) defines postal items as any “indivisible mailable entity in respect of which a mail service contractor accepts an obligation to provide postal services” (UPU 2014). Under Article 2 WC29/MC99, mail is excluded from uniform aviation liability rules because its general regulatory framework stems from the Universal Postal Convention and enacting Regulations. In the context of the international liability regime, air cargo is thus any good transported under a contract of carriage (Müller-Rostin [2020]), provided it is not mail or baggage. The special handling codes published by IATA in section 1.3 of the TACT Rules offer a practical overview of the spectrum of commodities for which air transport is usually contracted. 1. The Contract of Carriage of Goods by Air The above-mentioned international conventions identify and govern selected aspects of the contract of carriage for cargo, leaving the definition of the rest to the national law applicable to the contract. If cargo transportation falls outside the scope of international carriage, domestic law and contractual conditions remain the governing legal source. While the carrier and the consignor conclude the contract of carriage, a third party – the consignee – benefits from it and can exercise certain rights regarding the disposition of cargo and claims under the mentioned liability conventions. The relationships between these three parties are usually complicated by the presence of different pietro benintendi and marc wiesner

agents or intermediaries acting with varying degrees of involvement, as shown by the IATA Agency and Intermediary programs (IATA 2020). Chapter II WC29/MC99 clarifies that the involved parties should appear on the air waybill, which is prima facie evidence of the conclusion of the contract and the central record for the carriage of goods by air. The document also proves the acceptance of the conditions of carriage, receipt of the goods, and certain details about them. The air waybill paper format is standardized in IATA Resolution 600 and fulfills a series of additional purposes, ranging from billing document to handling and customs information (IATA 2022). Unlike other transport-related records used in the shipping or rail industries and notwithstanding Article IX of the Protocol to WC29 done at The Hague on 28 September 1955 (HP), the air waybill is typically not negotiable and does not transfer title to the goods. The original text of The Warsaw Convention relied on the presence of an “air consignment notice” and the indication of essential details to the extent that under its Article 9, the absence of the document or the required information would deprive the carrier of the liability limitations (UNCTAD 2006). The Additional Protocol 4 to amend the WC29 done at Montreal on 25 September 1975 (MP4) eventually decoupled compliance with the documentary requirements from the application of the limited liability regime. In addition, MP4 introduced the possibility of substituting the air waybill with “another means which preserves a record of the carriage to be performed” and eliminating the need for a physical copy to accompany the goods. This concept has been refined in MC99, thus paving the way for the digitization of the air waybill and the introduction of an electronic version, now generally known as eAWB and standardized under IATA Resolution 672. Owing to both the flexibility afforded by the MC99 and increasing regulatory support, the complete digitization of documentary requirements is one of the most promising areas of development for air cargo. 2. The Limited Liability for Air Cargo The central set of rules of the Warsaw regime and the MC 99 revolves around a weightbased limitation of carriers’ liability for damages, loss, or delay to cargo that occurred during carriage by air. National courts have been mainly occupied by the issue of determining the scope of carriage by air and, in

air cargo  11 particular, identifying the airport’s geographical boundaries under the Warsaw regime or understanding when the carrier is in charge of the goods under MC99. Following the shift from the original WC29 Poincaré accounting unit to the Special Drawing Rights (SDR) in MP4, the current limit under MC99 is set at 22 SDR per kilogram of lost, damaged, or delayed cargo and is subject to a periodical review. As opposed to passenger and baggage claims, starting from MP4 and as confirmed by MC99, carriers’ liability limits in respect of cargo are unbreakable. The only circumstance where compensation for amounts beyond the weight-based SDR limit may be considered is if the consignor has made a special declaration upon handing over the cargo. If the conditions are fulfilled, the declared sum would then constitute the new limit. The strict liability of the carrier is a counterbalance to the unbreakability of its limits. If damage, loss, or delay has occurred while cargo was in its charge, the carrier can exculpate itself only if it can prove one of the circumstances listed in Article 18 or Article 19 WC29, as amended by HP and MP4, and MC99. Additionally, proof of contributory negligence of the consignor or consignee may wholly or partially exonerate the carrier from its liability. The frequent multimodal character of the international freight business is covered in Article 18 MC99. Paragraph 4 addresses instances of operational substitution of the means of transport by providing that, if it is not known where the damage occurred, the liability regime of the carriage by air shall apply. Conversely, Article 38 MC99 attempts to govern cases of agreed combined carriage by reserving the aviation liability regime to the international air leg. The difficult interplay with liability rules for other modes of transport – in particular carriage of goods by road – is another central topic in the national case law that emerged around the aviation liability conventions (Leloudas and Soffin [2020]). Articles 31 of both WC29 and MC99 require the consignee’s timely notice of cargo-related complaints. If the timeframes are not respected, and unless the claimant meets the significant burden of proving the carrier’s fraud, any claim against the carrier is precluded. After the introduction of carriers’ mandatory insurance requirements under Article 50 MC99, the carriers’ insurers for cargo liability coverage, on the one hand, and insurers for the transport insurance coverage of cargo interests, on

the other, are normally involved in adjusting liability claims.

III. Air Cargo in Competition Law In the field of competition law, assessing air cargo and its relevant markets has played a role most prominently in merger control decisions. Competition authorities have recognized that the relevant product market, in general, encompasses all kinds of transported goods and does not require a subdivision by the nature of the goods transported nor by type of provider of air cargo services (Delta/ Air France-KLM/Virgin Group/Virgin Atlantic [2019] and KLM/Martinair [2008]). Furthermore, competition authorities have consistently defined geographic markets for intercontinental air cargo transport on a unidirectional continent-to-continent basis, provided that local infrastructure is sufficiently developed to allow for onward connections. In respect of continents or countries in which local infrastructure is less developed, the catchment area typically corresponds to the country of origin or destination.

IV. Air Cargo and International Trade Law Customs and international trade law are other important areas of regulation that affect the movement of goods by air. The International Convention on the Harmonized Commodity Description and Coding System concluded at Brussels on 14 June 1986 provides a common classification and nomenclature for international commerce. The legal framework for entry and exit requirements of cargo transported by air is coordinated under the facilitation measures outlined in Annex 9 CC44. From a broader perspective, the most relevant source of harmonization for customs regulations are the Annexes to the International Convention on the Simplification and Harmonization of Customs Procedures done at Kyoto on 18 May 1973, as revised by the Amendment done at Brussels on 16 June 1999. Air cargo–specific customs rules generally focus on manifestation requirements of the carrier and the corresponding cargo declarations transmitted before bringing goods into the customs territory. The European Union’s Custom Code requires carriers to submit a summary entry declaration on the pietro benintendi and marc wiesner

12  elgar concise encyclopedia of aviation law manifested cargo according to the deadlines and the requirements of its delegated legislation. A similar requirement is also in place for cargo moving to the United States under the Air Cargo Advance Screening (ACAS) or Canada under the Pre-load Air Cargo Targeting (PACT) programs. Moreover, the transmission of preliminary air cargo information to customs authorities fulfills aviation security purposes. “Pre-Loading Air Cargo Information” (PLACI) rules are being increasingly implemented in different jurisdictions under the high-level auspices of the joint ICAO and World Custom Union Working Group on Advance Cargo Information(WCOICAO 2021). These initiatives aim to couple standard regulatory checks with security risk management against threats connected with air cargo. Finally, customs formalities at departure, transit, or arrival may also often entail monitoring general international trade law restrictions and licensing requirements, such as sanctions and embargo regimes affecting the transported goods. Pietro Benintendi and Marc Wiesner

Note 1.

Any views expressed in this contribution are those of the authors only.

References Delta/Air France-KLM/Virgin Group/Virgin Atlantic (Case M.8964) EU Commission

pietro benintendi and marc wiesner

Decision C(2019) 1325 [2019] paras 156–164. George Leloudas and Daniel B. Soffin, ‘International Air Cargo in Time of Crisis: Global Challenges and Modal Shift Provide Transformational Opportunity in Commerce and Law’ 45(6) Air and Space Law, 563–609 (2020). IATA, ‘Cargo Agency Conference Resolutions Manual’ (43th edn, 2020). IATA, ‘Cargo Services Conference Resolutions Manual’ (42th edn, 2022). ICAO, ‘Definition of a Scheduled International Air Service’ (Doc 7278-C/841, 1952). ICAO, ‘Technical Instructions for the Safe Transport of Dangerous Good by Air’ (Doc 9284, edn 2021–2022). KLM/Martinair (Case COMP/M.5141) EU Commission Decision C(2008) 8458 [2008] paras 26–44. Pablo Mendes de Leon, Introduction to Air Law (10th edn, Wolters Kluwer Law 2017). UNCTAD Secretariat, ‘Carriage of Goods by Air: A Guide to the International Legal Framework’ (UNCTAD/SDTE/ TLB/2006/1, 2006). UNECE, ‘Recommendations on the Transport of Dangerous Goods – Model Regulations’ (22nd edn, ST/SG/AC.10/1/Rev.22, 2021). UPU, ‘UPU Standards Glossary’ (2014) 3–90. WCO – ICAO, ‘Joint WCO-ICAO Guiding Principles for Pre-Loading Advance Cargo Information (PLACI)’ (1st edn, 2021). Wolf Müller-Rostin, ‘Art. 4 MÜ’ in Münchener Kommentar zum Handelsgesetzbuch (4th edn, Beck 2020).

5. Air Carrier

been destroyed in many parts of the world, carriage by air promised to be the most readily available and effective means of transporting both goods and people. Although the Chicago Convention makes no explicit mention of the term air carrier, it speaks – at 16 different places – of airlines (e.g., Arts. 7, 9, 67) instead. For its regulatory purpose, it defines an airline, quite broadly, as “any air transport enterprise offering or operating an international air service.” “Air carrier” as a term may be found in the field of private international law, insofar as the Convention for the Unification of Certain Rules Relating to International Carriage by Air, known as The Warsaw Convention (1929), refers, for example, in its Art. 1 (3) to “air carriers” when describing its scope. However, the Treaty fails to provide a definition of this term, which is so crucial to its understanding and application. According to Litvine and Moury (1970, p. 182), during the Warsaw Conference, a proposal on a definition was submitted but rejected by the Conference, which “considered it premature to lock the idea of an air carrier into a formula, especially when the budding development of aerial navigation could only permit this to be done with some risk.” Although the same claim could hardly be made around 70 years later and in light of the experience achieved in the field of civil aviation, the Warsaw Convention’s successor, the Montreal Convention (1999), likewise does not provide any definition, while it explicitly refers to “carrier’s liability” and speaks of “carrier” or “contractual carrier” and “actual carrier,” as in its Art. 38 et seq. How the term is to be filled in this context is not always answered uniformly, sometimes even contradictorily. In this respect, reference is made to the manifold case law on the Warsaw and The Montreal Conventions, which, considered together, may certainly be regarded as the most litigated international instruments in the history of aviation law. When examining the term “air carrier” in its legal meaning, its context, usage, and purpose must be taken into account. Although air carriage by air may in its simplest form mean any act of transporting persons or goods by means of the air, the law recognizes differences based upon its underlying reasoning, in particular, whether it is performed commercially or non-commercially. Generally speaking, when a commercial activity is involved,

I. Terminology The term “air carrier” is used in many contexts and may have different meanings, depending on the subject, the circumstances, or the way it is applied. Nevertheless, it is often used with some ease and casualness. Although not uncommon, it is not always and appropriately to be understood as a synonym for similar terms, such as air operator. As to its relevance for aviation law, it may be often found in the context of both international and national law. Origins of what may today be regarded as an air carrier can be traced back to the beginnings of modern aviation: On 16 November 1909, the Deutsche LuftschiffahrtsAktiengesellschaft (“German Airship Travel Corporation”) was founded. Its purpose was to operate passenger flights using a fleet of Zeppelin airships, and it is today commonly considered the world’s first air carrier. In the years to come, especially after the end of the First World War, numerous companies transporting passengers, mail, and goods by means of the air were established. Among the oldest still existing today are Dutch KLM (1919), Colombian Avianca (1919), and Australian Qantas (1920).

II. International Legal Context Despite this bustling commercial activity in the early days of aviation, air carriers found their way – neither as a term or as a concept – into the first international treaty on aerial navigation, the Convention portant réglementation de la navigation aérienne, or the Paris Convention (1919). While it made multiple references to aircraft (Art. 2 et seq.), it remained silent on air carriers. That, however, changed with the creation of the Convention on International Civil Aviation, also known as the Chicago Convention (1944), and regularly referred to as the Magna Carta or backbone of today’s international civil air traffic. With the outbreak of the Second World War, commercial aviation had come to a standstill; however, toward the end of the war, the governments of Allied nations recognized the need to commence postwar planning in civil air transportation. Since roads, railways, and seaports had 13

14  elgar concise encyclopedia of aviation law higher standards apply to the transporting party. Therefore, an air carrier may be seen as a person – usually an enterprise – engaged in the provision of transportation services by means by aircraft for remuneration or hire. In a legal context, however, it is additionally required that the person also holds a governmental license, approval, or certificate to engage in such transportation. This formal authorization is meant to ensure that anyone who wishes to establish or operate an air carrier satisfies substantial requirements due to the safety and security risks resulting from carriage by air. Any such regulatory requirement serves to protect the public from the specific dangers associated with the commercial usage of aircraft.

III. National Legal Context Such a perspective is also prevalent beyond international law in national regulatory frameworks. In the United States, Title 14 of the Code of Federal Regulations (14 CFR) is the Federal Aviation Regulations, commonly referred to as “FARs.” Their Part 119 gives the details of air carriers and commercial operators, and for these purposes, 14 CFR 1.1 defines air carriers as “a person who undertakes directly by lease, or other arrangement, to engage in air transportation,” while such air transportation “means interstate, overseas, or foreign air transportation or the transportation of mail by aircraft.” The legislative equivalent in European Union law, Regulation (EC) 1008/2008 defines in its Art. 2 No. 10 air carrier as “an undertaking with a valid operating license or equivalent.” According to Art. 2 No. 3 of the same regulation, an undertaking “means any natural or legal person, whether profit-making or not, or any official body whether having its own legal personality or not.” Similarly, the European Air Passenger Rights Regulation (EC) No 261/2004 defines an air carrier in its Art. 2 (a) as “an air transport undertaking with a valid operating license.”

IV. Types of Air Carriers The group of such air carriers is diverse, depending on the business objective, the type of service, the aircraft used, and the scope of operations. Although the dynamic reality of aviation prohibits a schematic classification moritz g. heile

and while any attempt to make such a distinction lacks precision, certain types can be identified in the field of passenger aviation, depending on whether – as already provided for in the Chicago Convention (1944) – they operate scheduled air services or non-scheduled flights, even though such a distinction is nowadays of only limited practical significance. 1. Scheduled Air Carriers Scheduled air carriers are those engaged mainly in scheduled air services, which the International Civil Aviation Organization (ICAO) in its Manual on the Regulation of International Air Transport (5.3) describes as services typically “open to use by the general public and operated according to a published timetable or with such a regular frequency that it constitutes an easily recognizable systematic series of flights.” One of the main characteristics of scheduled air carriers is, therefore, the fact that they basically maintain year-round regular operations (Bartsch [2018], p. 217), including off-season periods with rather low load factors. Their operations follow a certain pattern and are, despite all liberalization and deregulation in recent years and decades, often enough still subject to prior approvals by the governments of the points of departure and arrival. In addition, the type and scope of their operations may be further limited under bilateral air services agreements or other applicable legal regulations, for example, as to their frequency, load capacity, and even pricing, even though this is in most parts of the world nowadays less common than it used to be. In the early days of civil aviation, scheduled air services were reserved to States’ national carriers, commonly also referred to as Flag or Legacy Carriers. Those would be either Stateowned, initially founded by their home States, or simply their only or the principal air carrier. Many of them formed the International Air Transport Association (IATA), a trade organization, which is nowadays open also to carriers other than those engaged in scheduled air services. Within the category of scheduled air carriers, further subcategories may be identified: while a major air carrier provides scheduled air services on both domestic trunk and international routes, usually operating a large scale of operation including an extensive route network, in many areas of the world

air carrier  15 also regional carriers play an important role. They will typically operate small and medium-sized aircraft, often flying at lower altitudes, for short-haul services on feeder or lower-density routes within a specific geographical area, for example, linking remote airports with each other or with hubs of major carriers. Occasionally they are also referred to as commuter air carriers. Another phenomenon has emerged with the rapid expansion of the so-called low-cost carriers (LCCs), or no-frills carriers, which are a product of liberalization and deregulation of air transportation in many aviation markets. They may be distinguished from Flag or Legacy Carriers by the fact that they usually operate point-topoint (P2P) services only, use only one type or family of aircraft, and have a lower cost structure than their competitors due to simple or limited in-flight services. Those carriers may be independent or a subsidiary of a division of a major carrier. In passenger aviation, it is not uncommon that a (contractual) air carrier does not perform the carriage with its own capacity but has a third party perform the carriage. This is the case, for example, in the context of code sharing, when one air carrier (= marketing carrier) sells a ticket under its own name and under its own flight number while the actual flight is then carried out by another air carrier (= operating carrier). Depending on the applicable legal regime, it must be assessed whether one or the other or both are the addressees of its provisions and regulations. Each case must be examined according to the relationship and the nature of the obligations of the parties involved in the carriage, and courts have – in cases under the Warsaw Convention or The Montreal Convention or other applicable passenger laws, including Regulation (EC) 261/2004 – applied some flexibility. 2. Non-scheduled Air Carriers In contrast to scheduled air carriers, nonscheduled air carriers are those whose primary business activity is in non-scheduled flights, which may – according to ICAO’s Manual on the Regulation of International Air Transport (5.3) – be described as “any air service that is performed other than as a scheduled service […], including but not limited to charter operations.” This includes on-demand air services without fixed routes, for example,

seasonal series of flights operated by air carriers for tour operators as part of package holidays. Other non-scheduled carriers specialize in taxi traffic services on short notice or niche areas of air traffic, including ad hoc transportation of people to distant sports events, company meetings, pilgrimages, or for any other reason (Bartsch [2018], p. 217). In addition, there are non-scheduled air carriers that operate mainly or even exclusively on behalf of scheduled air carriers, for example, to help out in the event of peak demand or technically induced under capacity. Such air carriers specialize in often short-term charter or ACMI (aircraft/crew/maintenance/insurance) services. 3. Other Air Carriers In addition to passenger aviation, cargo air carriers play an important role in today’s aviation environment. While originally scheduled passenger air services were also used for the transport of goods (belly cargo), nowadays many operators use special freighters and their capacities exclusively for these purposes, including, for example, overnight shipping or special deliveries (Bartsch [2018], p. 218). Several of those carriers are subsidiaries of established air carriers engaged mainly in passenger services, while others have emerged as cargo specialists focusing on particular segment of air freight. Over time, also the type and scope of transportation have changed: while at the beginning of modern aviation mainly mail was transported, many goods and commodities are today transported by air, including manufactured goods, animal produce, pharmaceuticals and medical devices, and livestock (Bartsch [2018], p. 218). Associated with the term “air carrier” are terms increasingly used, such as “mega carrier” or “global carrier,” which describe the phenomenon of strategic alliances or, lately and increasingly, the so-called metal neutral joint ventures. These are industry-specific forms of cooperation, ranging from the joint use of ground and airport facilities and the mutual recognition of loyalty programs to the joint coordination of flight schedules, code sharing, and even antitrust immunity, at the end of which participating partners may act and appear to their customers and the public at large as one single air service provider. However, the partners in alliances and metal neutral joint ventures remain legally and economically independent moritz g. heile

16  elgar concise encyclopedia of aviation law and work together on the basis of private law agreements, so that they may appear to be an air carrier, but they are not one in the sense and for the purposes of aviation law. Moritz G. Heile

References Convention for the Unification of Certain Rules Relating to International Carriage by Air (1929), 137 L.N.T.S. 11. Convention for the Unification of Certain Rules Relating to International Carriage by Air (1999), 2242 UNTS 350.

moritz g. heile

Convention on International Civil Aviation (1944), 15 U.N.T.S. 295. Convention portant réglementations de la navigation aérienne (1919), 11 L.N.T.S. 173. ICAO, ‘Manual on the Regulation of International Air Transport’, Doc 9626 (3nd edn 2016). Max Litvine and Armand Moury, Droit aérien, Notions de droit belge et le droit international (Bruylant 1970). Ron Bartsch, International Aviation Law: A Practical Guide (2nd edn Routledge 2018).

6. Air Commerce

affairs of IATA do not mention the term again. There was, however, some more prominent legislation on air commerce, which even bore it in its title: the US Air Commerce Act, officially entitled “An Act to encourage and regulate the aircraft in commerce, and for other purposes.” Until its adoption on 19 May 1926 during the presidency of Calvin Coolidge, air transportation had been widely unregulated in the United States. The Act was passed mainly at the behest of the aviation industry itself, which was of the opinion that air transportation could not reach its full commercial potential without law-making action to improve and maintain safety standards. At least commercial aviation had indeed not advanced as rapidly in the United States as had been expected by its many stakeholders. The new legislation imposed duties and conferred powers upon the secretary of commerce charging it with fostering air commerce, issuing and enforcing air traffic rules, licensing aircraft and engines as well as pilots and other personnel, and operating and maintaining aids to air navigation. For purposes of the Act, air commerce was defined as “transportation, in whole or in part, by aircraft, of persons or property for hire, navigation of aircraft in furtherance of a business or navigation of aircraft from one place to another for operation in the conduct of business.” This definition underwent a first significant change in the Civil Aeronautics Act of 1938, while today, 49 US Code § 40102 (a) (3) defines for purposes of the Federal Aviation Regulations air commerce as “foreign air commerce, interstate air commerce, the transportation of mail by aircraft within the limits of a Federal airway, or the operation of aircraft that directly affects, or may endanger safety in, foreign or interstate air commerce.” The current version of the US legislation does, unlike its predecessor some 100 years ago, no longer require any direct or indirect commercial purpose. While purely applicable in a US context, this piece of the law nevertheless sheds some light onto what may and may not be considered air commerce: Basically, any operation or navigation of aircraft, for purposes of flight, may be considered air commerce. The term therefore encompasses a broad range of aeronautical activities and extends not just to those in the air but may also include aircraft movements on the ground, for example at airports. There is, however, an important exception: Usually,

I. Evolution Since the first successful flights of aircraft in the late first decade of the 20th century and increasingly after the end of the First World War when air carriers started carrying passengers, cargo, and mail, States have been – and continue to be – heavily involved in promoting and regulating aviation. The rapid technological innovation in air traffic produced evident success, and the public’s interest in this new mode of transportation and its opportunities and possibilities as well as dangers and risks grew quickly. Despite setbacks in the more recent history, including the terrorist attacks on 11 September 2001, the 2008–09 world financial crisis, or the global pandemic of coronavirus disease 2019 (COVID-19) starting in early 2020, the aviation sector is still – through its significant direct and indirect support to the global gross domestic product (GDP) – one of the largest and most important industries in the world. It is, however, not just significant in its own right but also enables, simplifies, and accelerates the global exchange of goods and services and thus contributes greatly to global trade. Over the last several decades, air traffic has become the dominant means of crossborder transport and is universally considered not just an important, but an absolutely essential, form of infrastructure. As a result, it may be considered – as Wassenbergh (2000, 174) put it – a “public utility” or – according to Fitzgerald (2016, 27) – a “de-facto public good.” Today, air commerce is faster, safer, and more reliable than ever.

II. Legal Context In a legal context, the term “air commerce” is barely used, be it in international instruments or national legislation. It can, however, be found in an early piece of law-making that was to become important for the later development of civil aviation: on 18 December 1945 assent was given to the special An Act to Incorporate International Air Transport Association (IATA). The purposes, objects, and objectives of the Association listed therein include “to foster air commerce,” although the currently applicable Articles of Association regulating the activities and 17

18  elgar concise encyclopedia of aviation law State or military aviation is not to be considered air commerce. Most legal instruments, whether international or national, therefore make a strict differentiation between civil and non-civil aviation.

III. Commercial and Noncommercial Aviation Air commerce comprises both commercial and non-commercial air traffic. Commercial air traffic is – as Annex 6 (Operation of Aircraft) to the Convention on International Civil Aviation (1944), commonly referred to as the Chicago Convention, suggests – the part of air commerce involving “[a]n aircraft operation involving the transport of passengers, cargo or mail for renumeration or hire.” This includes, first and foremost, scheduled air services and non-scheduled flights. Although this distinction is somewhat imprecise in the reality of air transportation and is, moreover, primarily one of public international aviation law, it is also largely applied in the area of national aviation law. Scheduled air services, as introduced by Art. 6 of the Chicago Convention means according to its Art. 96 (a) “any scheduled air service performed by aircraft for the public transport of passengers, mail or cargo.” Since this definition lacks an explanation of what is to be understood as “scheduled” in this context, the International Civil Aviation Organization (ICAO) offers in Chapter 5.3 of its Manual on the Regulation of International Air Transport (Doc 9626) some non-binding guidance, according to which scheduled air services are “operated according to a published timetable or with such a regular frequency that it constitutes an easily recognizable systematic series of flights.” One of the main characteristics of scheduled air services is, therefore, the fact that they basically operate year-round, although frequencies and capacities may vary, in particular between summer and winter seasons. This is true for many of the air carriers that are members of IATA. In contrast to scheduled air services, nonscheduled flights – as governed by Art. 5 of the Chicago Convention – include, according to ICAO’s Manual on the Regulation of International Air Transport (Doc 9626), Chapter 5.3, “any air service that is performed other than as a scheduled service […], including but not limited to charter moritz g. heile

operations.” Hence, non-scheduled air services are mainly defined through the fact that they are not scheduled air services. It follows that they are characterized by operations lacking a regular schedule and fixed routes. This category includes on-demand air services, for example, seasonal series of flights operated by air carriers for tour operators as part of package holidays or for other occasional air transportation, such as event or foreign worker charters. A special place within the area of air commerce is accorded a category typically referred to as aerial work, i.e., aircraft operations for special services such as – according to Annex 6 (Operation of Aircraft) to the Chicago Convention – “agriculture, construction, photography, surveying, observation and patrol, search and rescue, aerial advertisement, etc.” While it can be performed – as the case may be – for remuneration or for hire, and therefore commercially, it is sometimes, but not necessarily, considered commercial air traffic. Non-commercial air traffic includes what is commonly referred to as general or private aviation, which – as Annex 6 (Operation of Aircraft) to the Chicago Convention suggests – may be understood as “[a]n aircraft operation other than a commercial transport operation or an aerial work operation.” This definition can include a broad range of very different activities, including business and corporate aviation, private and personal travel, air sports and tourism, or recreational flying. As a matter of fact, the vast majority of worldwide air commerce falls into the category of general or private aviation. While it may be difficult in an individual case to determine, generally the underlying purpose of a flight makes it either commercial or noncommercial air traffic.

IV. Regulation and Oversight Whether commercial or non-commercial air traffic, air commerce is – despite all trends toward liberalization and deregulation – subject to significant regulatory control and scrutiny. Virtually all States regulate air commerce in one way or another, and they have aviation authorities in charge of overseeing civil aviation activities, ensuring adherence to the standardized rules and regulations of the Chicago Convention, its Annexes, as well as national laws. Prominent examples

air commerce  19 include – in addition to the above-mentioned US and Canadian laws – the European Union with its Regulation No 1008/2008 on common rules for the operation of air services, the People’s Republic of China with its Civil Aviation Law, and South Africa with its Civil Aviation Act. The purposes, objectives, and rationales of regulating and overseeing air commerce are of a different nature, and its regulatory framework is shaped by a wide range of diverse aviation policy aspects. These include air and operational safety and national security and defense reasons as well as economic and infrastructural considerations and, increasingly, other motives, such as climate, environmental, or consumer protection. These are, albeit in varying intensity and form, the driving force behind the emergence and development of the legal system governing air transportation. As a result, it is today subjected to a tight network of laws, rules, and regulation that is – or has become – unknown to other activities. There is hardly any other field in which the density of regulatory

monitoring and supervision is as high as in air commerce. Moritz G. Heile

References An Act to Incorporate International Air Transport Association, Statues of Canada, 1945, Ch. 51. Convention on International Civil Aviation (1944), 15 U.N.T.S. 295. Henri A. Wassenbergh, ‘Common Market, Open Skies and Politics’, 25 (4/5) Air & Space Law 174–183 (2000). IATA, Articles of Association (as of 4 October 2021). ICAO, ‘Manual on the Regulation of International Air Transport’, Doc 9626 (3nd edition 2016). Peter P. Fitzgerald, A Level Playing Field for “Open Skies” – The Need for Consistent Aviation Regulation (Eleven International Publishing 2016). U.S. Air Commerce Act of 1926, 44 Stat. 568.

moritz g. heile

7. Air Defense Identification Zones (ADIZs)

of Civil Aircraft, National Security, and Interception Procedures” published in the US FAA’s Aeronautical Information Publication (AIP) (2022), “[p]ilots entering a Land-Based [US] ADIZ without authorisation or who fail to follow all requirements risk interception by military fighter aircraft,” and “[a] VFR flight plan filed inflight makes an aircraft subject to interception for positive identification when entering [a] [US] ADIZ” (AIP, ENR 1.12, ss 1.4.4 and 1.4.6). FIRs, on the contrary, are created for use by civil aircraft only.

I. Introduction to ADIZs 1. Defining ADIZs Air Defense Identification Zones (ADIZs) are airspace unilaterally designated by a coastal State over land or water that may extend seaward over the adjacent contiguous zone (CZ), exclusive economic zone (EEZ) or high seas, within which all aircraft or civil aircraft are required to identify and report themselves to the coastal State and follow the rules specified by the coastal State. Typical identification requirements of ADIZs include the radio requirement, flight plan requirement, transponder requirement, and position report requirement. Failure to comply with ADIZ rules may result in sanctions ranging from positive identification and aerial interception by military aircraft to a forced landing, and even to downing of the aircraft as a last resort (see Zheng, 2015). Without a universal definition, an ADIZ is typically defined under Annex 15 to the Chicago Convention (16th ed., 2018) as “special designated airspace of defined dimensions within which aircraft are required to comply with special identification and/or reporting procedures additional to those related to the provision of air traffic services” (Annex 15, ch. 1, s. 1.1).

3. Origin and the Status Quo of ADIZs ADIZs emerged as a political, military, and strategic instrument during the Cold War. In 1950, the United States was the first State in the world that established coastal ADIZs extending several hundred nautical miles over the high seas, followed by Canada and the Republic of Korea in 1951, and the Philippines in 1954. As put by Mendes de Leon (2021, p. 225), “while in those days, ADIZs were designed to counter military air attacks and potential nuclear strikes, they are progressively aimed towards protecting the State from misuse of civil aircraft as evidenced by the KE007, which took place in 1983, and the September 11th 2001 attacks in the US.” Up to now, more than 20 States have established coastal ADIZs beyond national airspace, which typically include the United States, Canada, Panama, Cuba, Argentina (with temporary ADIZs), the United Kingdom, Norway, Iceland, Sweden, Italy, Australia, India, Pakistan, Iran, Bangladesh, Myanmar, Vietnam, Oman, Thailand, the Philippines, Indonesia, Japan, the Republic of Korea, and China. Besides, States like Poland, Finland, Peru, Brazil, Libya, and Sri Lanka have established ADIZs entirely within their national airspace (see Su, 2015; and Su, 2019).

2. Differences between ADIZs and FIRs ADIZs differ from Flight Information Regions (FIRs). FIRs as per Annex 3 to the Chicago Convention (20th ed., 2018) are “airspace of defined dimensions within which flight information service and alerting service are provided” (Annex 3, ch. 1, s. 1.1). Although ADIZs and FIRs may share similar features regarding their locations and rules relating to Air Traffic Services, ADIZs are established for national security purposes and regulated under domestic regulations (see Head, 1960), while FIRs are developed for promoting the safety of international air navigation and regulated under ICAO’s auspices and norms, as well as under regional air navigation agreements. In addition, ADIZs may involve activities of State aircraft. For instance, under the provisions of “Interception

II. ADIZs within National Airspace Under customary international law, it has been long established that every State has complete and exclusive sovereignty over the airspace above its territory, as enshrined in Article 1 of the Chicago Convention (1944). A coastal State’s national airspace above its territory, which is identified under Article 2 of the Chicago Convention and Articles 2 and 3 of the United Nations Convention on the Law of the Sea (UNCLOS) (1982), may extend beyond the coastal State’s land 20

air defense identification zones (adizs)  21 territory and internal waters to its territorial sea up to 12 nautical miles measured from baselines determined under UNCLOS. In this respect, the legality of ADIZs within national airspace are not much debated, as under such legal framework, each State has sovereign power to regulate its national airspace and enact domestic regulations for aircraft entering, flying within, and departing from its national airspace. A coastal State’s domestic regulations in this respect “shall be applied to the aircraft of all contracting States without distinction as to nationality and shall be complied with by such aircraft upon entering or departing from or while within the territory of that State” (The Chicago Convention, Arts. 11 and 12). Still, for specific issues like the right of overflight within territorial ADIZs, one may examine, inter alia, Articles 3(c), 5, and 6 of the Chicago Convention, as well as the International Air Services Transit Agreement (IASTA) (1944) and those Air Services Agreements (ASAs) where applicable.

III. ADIZs beyond National Airspace 1. Justifications for ADIZs beyond National Airspace For those ADIZs extending beyond national airspace, although there are no existing treaty rules expressly addressing the legitimacy of their establishment and/or operation, international law does not explicitly prohibit such ADIZs claimed by coastal States. One of the most significant issues here is whether ADIZs have sabotaged caelum liberum over the high seas as reaffirmed by UNCLOS Articles 87(1)(b) and 89. Civil aircraft flying over the high seas are governed by the rules established under the Chicago Convention, namely the Standards prescribed in Annex 2 (The Chicago Convention, Arts. 3, 12, 37, 38, 54(l), and 90) and, accordingly, the freedom of overflight is not free from every obligation as it is already subject to the Standards as laid down in Annex 2. Typical ADIZ identification requirements regarding flight plan and position reports, for instance, are substantively similar to those Annex 2 Standards (see Annex 2, ss 3.3.1.2 and 3.6.3.1). As long as Annex 2 has not been sabotaged by ADIZ identification requirements and measures, the freedom of overflight over the high seas – and

similarly over the EEZs and CZs – is unlikely to be infringed. Several justifications for establishing ADIZs beyond national airspace have been discussed by numerous authors, yet there is no satisfactory answer at the moment. Those proposed justifications include, but are not limited to, the right to self-defense (see Head, 1960; and Grief, 1994, pp 155-157), the right of a State to establish reasonable conditions of entry into its territory (see The Chicago Convention, Article 11), partial jurisdiction/ competence in airspace over the high seas (see Cuadra, 1977-1978), the principle that a State is entitled to exercise jurisdictional powers for acts outside its territory unless such exercise is prohibited by international law (as affirmed by the Lotus case in 1927) and Article 4 of the Chicago Convention regarding “misuse of civil aviation. (see Zheng, 2015)” It is more convincing that a potential justification may be based upon customary international law (see Cuadra, 1977-1978; and Grief, 1994, p. 157), as for decades coastal States’ unilateral ADIZ claims have not been protested by other States until China declared its first ADIZ, namely the East China Sea Air Defence Identification Zone (ECSADIZ), on 23 November 2013. In short, apart from ECSADIZ as a special case, the consistent State practice may infer that, as Roach (2017, para. 6) puts it, “the right to declare an ADIZ is now recognised as a right under customary international law.” This justification, however, is questioned by Su (2019, pp 812–813), who properly noticed that “[s]uch an assertion, appealing as it may be, should be based on a rigorous assessment of the material and subjective elements of the practice,” and “[u]nfortunately, the visibility of State practice on ADIZs [...] varies significantly from one claiming State to another.” 2. Commonalities in Typical ADIZ Practice Typical State practices, including the longlasting US ADIZs, Canadian ADIZ (CADIZ), and Korean ADIZ (KADIZ), albeit with diversified geographical locations, regulatory features, and applicability, share remarkably similar identification requirements, which include: ●

the radio requirement, requiring that any person operating in an ADIZ must pai zheng

22  elgar concise encyclopedia of aviation law

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maintain two-way radio communication with an appropriate aeronautical facility; the flight plan requirement, pursuant to which no person is allowed to operate aircraft into, within, or from a departure point within an ADIZ, unless the person files, activates, and closes a flight plan with the appropriate aeronautical facility, or is otherwise authorized by ATC; the transponder requirement, requiring that each aircraft conducting operations into, within, or across an ADIZ must be equipped with an operable radar beacon transponder having altitude reporting capability, and that transponder must be turned on and set to reply on the appropriate code or as assigned by ATC; and the position report requirement, which require the pilot operating an aircraft in or penetrating an ADIZ to make periodic position reports complying with Instrument Flight Rules (IFR) in controlled airspace or specialized Visual Flight Rules (VFR) in uncontrolled airspace.

3. Features of China’s ECSADIZ As the latest ADIZ, China’s ECSADIZ has provoked hot debates both because it partially overlaps with the ADIZs of Japan and the Republic of Korea and because its identification rules are not exactly the same as those common to other ADIZ States, the United States in particular. The ECSADIZ is also unique in the sense that it is an “offshore” ADIZ limited to the airspace within the geographical scope enclosed by China’s “outer limit of the territorial sea” and the six coordinates listed in the Statement by the Government of the People’s Republic of China on Establishing the ECSADIZ (2013). That is to say, the ECSADIZ is located entirely beyond Chinese territory. In particular, the ECSADIZ stretches east to the Diaoyu Islands (Senkaku Islands in Japanese) over which China and Japan claim sovereignty, yet the territorial airspace of the Diaoyu Islands is carved out from China’s ECSADIZ. As put by Su (2019, p. 820), “[w]hile China’s establishment of ECSADIZ was taken by some as “an attempt to change the status quo in the East China Sea,” this seldom noticed carve out is “an indication that the right to identify aircraft above the Diaoyu Islands already falls within the territorial sovereignty China claims.” pai zheng

Similar to the US ADIZs, CADIZ, and KADIZ, the identification requirements of the ECSADIZ (Announcement of the Aircraft Identification Rules for the ECSADIZ of the People’s Republic of China, Arts 1 and 2) also include the flight plan requirements, radio requirements, and transponder requirements. An extra logo identification requirement requires that “aircraft flying in the ECSADIZ must clearly mark their nationalities and their registration identification logos in accordance with related international treaties,” which is rooted in Article 20 of the Chicago Convention with its Annex 7. 4. Applicability in re Transiting Aircraft A key issue regarding applicability of ADIZ rules is whether they also apply to transiting aircraft with no intention to enter the coastal State’s national airspace. The US view is that it “does not recognise the right of a coastal State to apply its ADIZ procedures to foreign aircraft not intending to enter national airspace nor does the [US] apply its ADIZ procedures to foreign aircraft not intending to enter US airspace.” (The Commander’s Handbook on the Law of Naval Operations, 2017, s. 2.7.2.3). Such an approach, reasonable as it may seem (see The Chicago Convention, Art 11), has not, however, been accepted by the majority of coastal ADIZ States in their practice. Compared to those inbound aircraft, States like Canada, Australia, Iran, India, Pakistan, Myanmar, Bangladesh, Thailand, the Republic of Korea, as well as China apply ADIZ rules to transiting aircraft equally (see Su, 2019). 5. Applicability in re State Aircraft Another issue concerning applicability is whether ADIZ rules also apply to State aircraft, which include aircraft used in military, customs, and police services as per Chicago Convention Article 3(b). The Chicago Convention applies only to civil aircraft, not State aircraft (The Chicago Convention, Art 3(a)). Differentiated from civil aircraft, State aircraft – in particular military aircraft – operating outside national airspace are not only passively subject to exclusive jurisdiction and control of the State whose nationality they possess, they are also positively representing the sovereignty of their State, and thus enjoying sovereign immunity under customary

air defense identification zones (adizs)  23 international law. Accordingly, without specific consent or an agreement (such as the Agreement between India and Pakistan on Prevention of Air Space Violations and for Permitting Over Flights and Landings by Military Aircraft of 1991, which partially regulates foreign State aircraft and military aircraft flying within their ADIZs, respectively), State aircraft are unlikely to be governed by ADIZ rules. That said, many ADIZ rules either declare themselves applicable to “all aircraft” or simply do not differentiate State aircraft from civil aircraft regarding applicability. One US ADIZ rule, for instance, provides that “State aircraft (US or foreign) planning to operate through an ADIZ should enter ICAO Code M in Item 8 of the flight plan to assist in identification of the aircraft as a [S]tate aircraft” (AIP, ENR 1.12, s. 1.4.2.3, para. (e)). And like the CADIZ rules, the ECSADIZ rules do not distinguish “civil aircraft” from “all aircraft” in their applicable scope. For pragmatic reasons, in practice coastal States may actively identify foreign State aircraft within their ADIZs, as exemplified in China’s active identification of two unarmed US B-52 bombers that flew through the ECSADIZ on 26 November 2013, and the interception by the United States of Russian Tu-95 bombers and Su-35 fighter jets entering the US Alaskan ADIZ on 21 May 2019. 6. Limitation on Interception of Civil Aircraft Last but not the least, in respect of interception of civil aircraft within ADIZs, Article 3 bis(a) of the Chicago Convention provides that “[t]he contracting States recognise that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered.” More detailed rules regarding interception of civil aircraft are laid down in Attachment A of Annex 2, all of which are mandatory rules in the airspace over the high seas and shall be applied without exception (Annex 2, “Applicability”). Most importantly, it is unequivocally emphasized that “interception of civil aircraft should be avoided and should be undertaken only as a last resort” (Annex 2, s. 2.1). Pai Zheng

References Elizabeth Cuadra, ‘Air Defense Identification Zones: Creeping Jurisdiction in the Airspace’, 18(3) Va J Int’l L 485–512 (1977–1978). ICAO, Annex 2 to the Convention on International Civil Aviation – Rules of the Air, 10th Edition (ICAO, 2005). ICAO, Annex 3 to the Convention on International Civil Aviation – Meteorological Service for International Air Navigation, 20th Edition (ICAO, 2018). ICAO, Annex 7 to the Convention on International Civil Aviation – Aircraft Nationality and Registration Marks, 6th Edition (ICAO, 2012). ICAO, Annex 15 to the Convention on International Civil Aviation – Aeronautical Information Services, 16th Edition (ICAO, 2018). Ivan L. Head, ‘ADIZ, International Law, and Contiguous Airspace’, 2 Bull Harv Int’l L Club 28–51 (1960). J. Ashley Roach, ‘Air Defence Identification Zones’ https://opil​.ouplaw​.com​/view​/10​.10 93 ​ / law ​ :epil ​ / 9780199231690 ​ / law​ - 9780 199231690​-e237. Jinyuan Su, ‘The East China Sea Air Defense Identification Zone and International Law’, 14(2) Chinese JIL 271–303 (2015). Jinyuan Su, ‘The Practice of States on Air Defense Identification Zones: Geographical Scope, Object of Identification, and Identification Measures’, 18(4) Chinese JIL 812–835 (2019). Nicholas Grief, Public International Law in the Airspace of the High Seas (Martinus Nijhoff Publishers, 1994). Pablo Mendes de Leon, ‘The Establishment of Flight Information Regions and Air Defence Identification Zones: Air Law Is Air Law and Maritime Law Is Maritime Law; Shall the Twain Ever Meet?’ in Niels Blokker, Daniëlla Dam-de Jong and Vid Prislan (eds), Furthering the Frontiers of International Law: Sovereignty, Human Rights, Sustainable Development (Brill, 2021). Pai Zheng, ‘Justifications and Limits of ADIZs under Public International Law’, 14(2) Issues Aviation L. & Pol’y 183–216 (2015). US FAA, ‘Aeronautical Information Publication (AIP)’ https://www​.faa​.gov​/air​ _traffic​/publications​/atpubs​/aip​_html. pai zheng

24  elgar concise encyclopedia of aviation law US Navy, US Marine Corps and US Coast Guard, The Commander’s Handbook on the Law of Naval Operations, August 2017 Edition, NWP1-14M/MCTP11-10B/ COMDTPUBP5800.7A.

pai zheng

Xinhua, ‘Announcement of the Aircraft Identification Rules for the East China Sea Air Defense Identification Zone of the People’s Republic of China’ https:// www​.chinadaily​.com​.cn ​/china ​/2013​-11​/23​/ content​_17126618​.htm.

8. Air Mail

I. Air Mail in Europe

For more than the first 50 years of the 20th century, air mail, the delivery of post by aircraft, was a separate service that offered expedited delivery times in exchange for premier postage rates to offset higher operating costs. Air mail served the political and economic needs of many nations, serving to improve communications both domestically and internationally by providing needed economic support through postage fees and lucrative contracts. The creation of the vast international network of airlines and air travel that exist today was made possible by direct or indirect support through the use of government-sponsored air mail. The history of the world’s airlines is the history of air mail. As early as 1785, aeronauts Jean-Pierre Blanchard and John Jeffries carried mail on their pioneering balloon flight across the English Channel. Other flights by other balloonists were made throughout the 19th century, mostly for novelty, although during the Franco-Prussian War of 1870–71 mail was sent by balloons outside of the besieged cities of Paris and Metz with surprising regularity, presaging the future of air mail service. After heavier-than-aircraft took center stage, several demonstration flights were made to show the speed and efficiency of the aerial deliver of mail, with limited success. In India, the first official air mail flight took place on 18 February 1911, in support of an exhibition in Allahabad. The first schedule air mail service opened in Britain on 9 September 1911, between London and Windsor on the occasion of the coronation of King George V. In the United States the first air mail flight approved by the Post Office was flown by Earl Ovington on Long Island, New York, on 23 September 1911. All of these and similar attempts in other countries were temporary as the state of aeronautics was such that no aircraft had as yet enough speed, power, payload, or range to make air mail practical or affordable. That would soon change. During World War I numerous brief attempts were made throughout Europe to carry air mail. Perhaps the most successful was the Austrian Civil Mail service that connected Vienna with Budapest and points as far east as Kiev and Odessa. Military air mail service was also begun by the Germans, British, French, and Italians. 25

After 1918, Europe lay exhausted from four terrible years of conflict. Victors and vanquished sought to heal the wounds and repair the damage, reassert their political and economic power, and reestablish their increasingly tenuous ties to their overseas possessions. As part of an international competition for resources and influence, economically strong countries combined the direct hard power occupation of foreign colonies with the exercise of soft power of political and economic influence. The best technological tool for this new expression of power was the airplane. As early as 1919, the Netherlands, France, and Belgium created State-owned national or quasi-national airlines, designed to carry administrators, officials, and air mail to link the far reaches of their respective empires and to their neighboring countries. KLM Royal Dutch Airlines was the first with service across the English Channel, connecting Amsterdam with London. Several French airlines quickly followed, including Farman, Air Union, and others as did Sabena from Belgium linking Paris and Brussels with the British capital. Britain initially backed privately owned airlines, such as the Daimler Airway, Handley-Page Transport, and the Instone Airline. Because aviation was still at such an early stage of development and aircraft were inefficient, these airlines quickly ran into financial difficulties. In 1923, these airlines were merged into what would become Imperial Airways, a public/private enterprise that received substantial government subsidies to carry passengers and mail. Although restricted by the effects of the Treaty of Versailles, Germany managed to create a wellintegrated civil aviation network throughout the country. More than a dozen airlines, many started by aircraft manufacturers desperate to create a market for their products, particularly Junkers, Albatros, and Rumpler. German shipping companies Hamburg-Amerika and Nord Deutscher Lloyd backed many of these enterprises, eventually creating Deutsche Luft Hansa in 1926. These national airlines soon expanded throughout Europe, linking major cities together before eventually expanding beyond the continent out to their respective colonial holdings by the late 1920s and early 1930s. Belgium soon reached the Congo and France expanded throughout most of Africa, while the Netherlands soon reached the Dutch

26  elgar concise encyclopedia of aviation law East Indies after setting many impressive distance records with KLM’s excellent Fokker transports. France also expanded to its holdings in Indochina and, by 1933, had merged its several airlines into one – Air France. Germany pushed eastwards, helping to create Deutsche Russische Luftverkehrs (Deruluft) in the new Soviet Union and created Eurasia, a new airline that extended service across the U.S.S.R. and into China. All carried air mail. After the creation of Imperial Airways, Great Britain established a vast network of routes throughout its empire. Most prominent was its route between Cape Town and Cairo and throughout Africa, as well as routes from Palestine through the Middle East to India. With enterprising Australian entrepreneurs moving north and east with what would become QANTAS (Queensland and Northern Territory Aerial Services), Britain and Australia were linked by air in 1935 when Qantas Empire Airways, which held the lucrative air mail contract, reached Singapore. At trip that took months by sea or overland, was now completed in fewer than ten days, greatly improving communications and control throughout the British Empire. Concurrent with this service was the implementation of the Empire Air Mail Scheme that sought to place all first-class mail in the British Empire on the aircraft of Imperial Airways. Originally conceived in 1934, it took until 1937 before agreement was reached between Britain and its most significant dominions of South Africa, India, and Australia and its colonies to subsidize the service. The Scheme proved a victim of its own success as Imperial Airways was swamped with first-class mail and did not have enough aircraft to carry the bulk, especially during the holiday season. Despite this, it demonstrated the popularity and necessity of air mail. The service ended in 1939 with the coming of World War II.

II. Air Mail in the United States The United States took a different path. With its large landmass, the State concentrated on establishing domestic air mail routes linking major metropolitan areas and particularly financial centers. Early US airlines proved unprofitable—they flew and then folded. Through the Post Office, the federal government then stepped in to foster a new f. robert van der linden

transportation system when private enterprise was unwilling to invest. On 15 May 1918, the first flight of the US Air Mail Service began between Washington, DC, and New York City. Built strictly to carry air mail, the new US Air Mail Service proved successful, pioneering the major air routes across the country and demonstrating the feasibility of aircraft to deliver the mail. Air mail service opened between New York and Chicago in September 1919. Service reached Omaha, Nebraska, the following May. In September 1920 it reached San Francisco. By 1924 mail was also being flown at night, thanks to lighted airways the Post Office and Commerce Department were creating across the nation. Compared to moving the mail by train, flying cut the coast-to-coast delivery time by about a day. When regular overnight air mail service began in 1924, it slashed delivery time to 29 hours—almost three days faster than by rail. Despite some early setbacks, the Air Mail Service completed about 90% of its flights. The federal government never intended to fly the mail indefinitely, only to lay the foundations for a reliable and practical air mail system. With a strong belief in the efficiency of private enterprise, the Post Office turned over air mail delivery to private contractors – the airlines. The Contract Air Mail Act of 1925 allowed the Post Office to pay private airlines to deliver the mail. Payments were based on the weight of the mail carried. The Post Office later added a subsidy to help offset airline operating losses, until more efficient aircraft could be developed. By the end of the 1920s, private airlines were flying an expanding system of air mail routes. Passenger service, however, remained almost non‑existent. While airlines often prospered flying the mail, the system had problems. The Post Office’s bidding process for air routes resulted in an unfair payment system, and short-term contracts discouraged airlines from investing in long-term development. Airlines that carried only mail favored small, single-engine airplanes. Larger multi-engine aircraft were needed to carry passengers, but such airplanes were too costly to operate. President Herbert Hoover’s postmaster general Walter Brown helped draft legislation to reform the way airlines were paid, streamline the nation’s air routes, and encourage airline growth and innovation. Brown helped

air mail  27 draft the McNary-Watres Act of 1930, which changed how airlines’ air mail contracts were paid and made subsidies fairer, redrew the nation’s air route system, and provided economic incentives to encourage airlines to carry passengers. To ensure the survival of well-run passenger airlines, Brown encouraged them to merge with air mail lines. He forced other mergers and excluded small, non-air mail carriers. Unfounded charges of corruption in the air mail system led President Franklin Roosevelt to cancel all air mail contracts in February 1934. Four months after the air mail crisis began, Congress passed the Air Mail Act of 1934. It cut payment rates to airlines, returned most air mail routes to the major airlines, and gave some routes to smaller airlines. It divided regulation among the Post Office, Commerce Department, and Interstate Commerce Commission. Four years later the Civil Aeronautics Act of 1938 unraveled the bureaucratic tangle created by the Air Mail Act of 1934, which had divided airline regulation among the Post Office, Commerce Department, and Interstate Commerce Commission and merged the regulatory functions of the Interstate Commerce Commission, Post Office, and Commerce Department into the Civil Aeronautics Board that would set airline fares and routes for four decades.

III. Air Mail in Latin America Air mail was also instrumental in the development of civil aviation throughout Latin America. German and French interests in the region challenged the economic sphere of influence of the United States, which reacted aggressively to this perceived intrusion into “its” backyard. With the blessing and direct encouragement of the US government, American aviation interests, led at first by enterprising individuals but soon by powerful Wall Street enterprises, gained control of most of Latin America’s commercial aviation by the end of World War II. Founded by Colombian nationals and German entrepreneurs on 5 December 1919, the Sociedad Colombo-Alemana de Transportes Aéreos (SCADTA) sought to connect the capital city of Bogotá with the Caribbean and as far south as Peru. The airline was renamed Avianca in 1940. SCADTA

came to the attention of political and economic interests in the United States in 1925, who were fearful of German influence in the region. In response, the US. Army pushed for the creation of a US airline to compete. Entrepreneur Juan T. Trippe responded and created Pan American Airways, which first flew to Cuba and then the Caribbean, and eventually down the east and west coast of South America, forcing aside all competitors by 1930, all of which was made possible through lucrative Foreign Air Mail contracts from the US government. Pan American eventually took control of SCADTA and set up numerous local airlines throughout the continent. In encircling the continent, Pan American again confronted the Germans and, this time, the French as well. When Trippe gained access to Buenos Aires and Santiago, he encountered Aéropostale, a French airline that had been operating in the region since 1925. Founded in 1919, Lignes Latécoère flew experimental flights south from Rio de Janeiro to Buenos Aires in 1925 and, after the development of necessary infrastructure, the airline, now renamed Aéropostale, opened air mail service on 14 November 1927. By 1930, Aéropostale was flying mail from Toulouse across the South Atlantic to Buenos Aires in only four days. The airline was later incorporated into Air France. On 1 December 1927, the Syndicato Condor was formed as a subsidiary of Deutsches Luft Hansa (DLH), the German national airline, to operate within Brazil. Condor extended its route network from Porto Alegro to Rio and northwards to Natal where it could join up with Luft Hansa’s transatlantic air mail service. The connection to Natal was a vital link in Luft Hansa’s plan to extend its influence internationally. In March 1930, Luft Hansa and Condor opened an experimental service delivering the mail between Rio de Janeiro and Berlin in only 11 days. The mail was flown to and from a Hamburg Line steamship by a Condor flying boat near the island of Fernando de Noronha. Three years later in an even more adventurous enterprise, DLH and Condor opened regular mail across the South Atlantic by placing depot ships in the Atlantic, where flying boat could alight, refuel, and catapult back into the air. This remarkable service cut the Berlin to Rio delivery to only four days. f. robert van der linden

28  elgar concise encyclopedia of aviation law Compounding this German success was the use of dirigibles to carry passengers and mail between Germany and Brazil. Beginning in 1930, the Graf Zeppelin and later the Hindenburg made 163 luxurious flights across the South Atlantic before the untimely destruction of the Hindenburg at Lakehurst, New Jersey, on 6 May 1937 brought the age of the airship to an abrupt end. By the late 1930s, Pan American emerged as the dominant air mail carrier in Latin America. Having secured its market with the direct help of the US State Department and Post Office, Trippe looked to expanding his airline further. In November 1935, Pan American opened the world’s first regularly schedule transpacific air mail service. One year later, its famous “China Clipper” flying boat carried passengers. Few flew because of the extremely high ticket prices, but Pan American profited greatly from its air mail contract. This was repeated over the Atlantic Ocean in the spring of 1939 when flying the huge Boeing 314 flying boats, Pan American connected New York and Lisbon, eventually reaching Great Britain after tense negotiations with Imperial Airways over landing rights. Once again, air mail paid the bills. Because of the greater efficiencies of post– World War II airliners, the operating costs of the airlines dropped low enough that, in 1952, the US government subsidy provided by the air mail was eliminated. The arrival of jet airliners by the end of the 1950s reduced costs even more. This was repeated throughout the globe as the speed promised by the highpriority air mail service was extended to firstclass mail, making special air mail no longer necessary. US airlines continued to fly air mail until the 1970s when first-class mail was placed on airliners, making the air mail as a separate service unnecessary. US Air Mail was discontinued in 1977.

f. robert van der linden

Though air mail is no longer a vital service, now replaced by first-class mail and specialized high-priority cargo airlines, its contribution to the creation and development of the airline is unquestioned. F. Robert van der Linden

References Allaz, Camille and Skilbeck, John. History of Air Cargo and Airmail from the 18th Century. London: Christopher Foyles, 2004. Bender, Marylin and Altschul, Selig. The Chosen Instrument: Pan Am, Juan Trippe, The Rise and Fall of an American Entrepreneur. New York: Simon & Schuster, 1982. Davies, R.E.G. A History of the World’s Airlines. Oxford: Oxford University Press, 1964. Davies, R.E.G. Airlines of Latin America. Washington: Smithsonian Press, 1984. Davies, R.E.G. Airlines of the Jet Age. Washington: Smithsonian Institution Scholarly Press, 2011. Davies, R.E.G. Airlines of the United States Since 1914. London: Putnam, 1972. Holmes, Donald B. Air Mail: An Illustrated History: 1793–1981. New York: Clarkson N. Potter, 1981. Jackson, Robert. The Sky Their Frontier: The Story of the World’s Pioneer Airlines and Routes, 1920–40. New York: Arco Publishing, 1984. Leary, William M. Aerial Pioneers: The U.S. Air Mail Service, 1918–1927. Washington: Smithsonian Press, 1985. van der Linden, F. Robert. Airlines and Air Mail: The Post Office and the Birth of the Commercial Aviation Industry. Lexington: University Press of Kentucky, 2002.

9. Air Navigation Services Provider (ANSP)

the services themselves. States are free to adopt the organizational model that best meets their policy and legal requirements and the needs of international air navigation over their territory. Such models can involve the delegation of the service provision responsibility to a private entity or a foreign State. Regardless of the organizational model chosen, contracting States nevertheless remain ultimately responsible to ensure that the services are provided in accordance with the terms of the Chicago Convention and its relevant Annexes.

I. Definition Article 28 of the Chicago Convention of 1944 (CC) requires each contracting State to “provide, in its territory, (…) radio services, meteorological services and other air navigation facilities to facilitate international air navigation.” These services and air navigation facilities are commonly known as Air Navigation Services (ANS) and the term “Air Navigation Services Provider” (ANSP) designates an entity established to provide such services. Although it is widely used in the aviation community, the term ANSP is not defined by ICAO. It is most often used in a narrow sense to designate an organization formally mandated by a State to provide ANS within its sovereign airspace in accordance with Article 28 CC. In its broader sense, the term “ANSP” designates any organization that provides any of the many services falling within the catalog of Air Navigation Services. This includes specialized ANSPs operating on a commercial basis and whose activity focuses on a specific subset of ANS, such as aerodrome control service or the provision of specific communication, navigation, or surveillance services (e.g., ADS-B supported surveillance). International aviation law contains relatively few provisions that apply to ANSPs. Most of the existing regulatory material focuses on “ATS Providers” (ATSPs) or “ATS authorities” in the sense of Annex 11 to the Chicago Convention. The term “ATSP” refers to a particular category of ANSPs, in charge of delivering Air Traffic Services, which constitute the core of the range of ANS. In practice, many of the legal principles that apply to ATSPs extend by analogy to other Statedesignated ANSPs that provide services on the basis of Article 28 CC.

1. State Agencies Historically, most States have designated a governmental agency to provide ANS over their territory. That model was widely perceived at the most appropriate to safeguard the States’ sovereign interests, to enable them to fulfill their international obligations under Article 28 CC as well as other domestic obligations related to the public service nature of ANS. Such agencies were often self-regulated and funded by public taxation. 2. Autonomous Entities In many parts of the world, State agencies have struggled to cope with the massive expansion of air traffic that followed the deregulation of air traffic in the 1980s, first in the United States, then in Europe. Increasing traffic numbers required a massive improvement of the capacity of the ANS system, which, in turn, necessitated heavy investments in new facilities. The budgetary processes in many countries proved inadequate to support the improvement of State-run ANS infrastructures, which found themselves chronically lagging behind traffic demand. This capacity crisis prompted States to investigate alternative organizational models for their ANS system. These investigations pursued a double objective. The first goal was to vest ANSPs with financial autonomy to allow the service provider to freely access the private capital market to finance its investments. Autonomy also implied that the ANSPs must finance its investments and operations by means of its own revenues without burdening the State’s budget. The second objective was to ensure that States would retain a sufficient level of control over their financially autonomous ANSPs to safeguard their ANS-related sovereign interests. The process resulted in

II. Organizational Models While each contracting State has an obligation under Article 28CC to provide ANS in its airspace, the Chicago Convention does not require contracting States to provide 29

30  elgar concise encyclopedia of aviation law the establishment of “autonomous entities” defined by ICAO as “an independent entity established for the purpose of operating and managing one or more … air navigation services, which is empowered to manage and use the revenues it generates to cover its costs.” Autonomous entities exist in many forms. Establishing an autonomous ANSP does not require the privatization or corporatization of the ANS system. Some States, such as France, and to some extent the United States, have retained a State agency, but they have separated the operational service provision arm from the regulatory authority and have entrusted the ANSP with its own budgetary framework that contains specific features to facilitate the financing of the system. Other States (e.g., the Netherlands) have established tailor-made public organizations, created by an ad hoc legislation that combines principles borrowed from private law, such as a corporate governance structure and the ability to freely borrow on the private capital market, and rules from the public sector, such as civil servant salary scales. A large number of countries have opted for the “corporatization” of air navigation services, a process defined by ICAO as the “creation of a legal entity outside government to manage certain facilities and services, either through a specific statute or under an existing statute such as company law.” The term “corporatization” refers to the legal status of the ANSP, in most cases a private law corporation, but entails no implication regarding the ownership of the provider. In most cases, States have retained the totality or at least a majority of the share capital of their corporatized ANSPs. The corporatization model is widespread in all parts of the world because it is particularly well suited to achieve the double objective of financial autonomy and effective State control. A handful of States have taken an additional step and have fully “privatized” their ANS system. Under a privatized regime, not only is the ANSP established as a private law company, but also a majority of the share capital is sold to private investors. Very few States have opted for privatization, mainly because of concerns regarding possible conflicts between the safety objectives of ANS and the need for a financial reward of the shareholders, but also because corporatization is generally perceived as an adequate and sufficient solution to entrust ANSPs with the francis schubert

necessary financial autonomy. The list of privatized ANSPs includes, for instance, the UK National Air Traffic Services (NATS) and the Italian ENAV (partly privatized). Some States have designed unique private models that reflect the specificity of the ANS business environment. For instance, Canada has established NavCanada as a “non-share capital corporation,” a private law company that has no share capital and is funded exclusively by means of loans and bonds. The absence of a share capital mitigates the risk of shareholders exerting an unhealthy economic pressure on the organization that could undermine its primary safety mission. 3. Multinational Organizations Whereas the majority of States have designated a national service provider, a few States have opted for a multinational solution and have created a common organization in charge of managing air traffic within the airspace of the participating States. Such constructions are motivated by operational and cost-efficiency considerations and have been put in place mainly by States with relatively small airspace or with limited capability to establish an ANSP of their own. The creation of a multinational organization results in the creation of a larger volume of airspace that is easier to manage and allows the participating States to share the cost of service provision. Multinational ANSPs are often established in the form of an intergovernmental organization. Such constructions include, for instance, the Maastricht Upper Area Control Centre (MUAC). This facility is operated by EUROCONTROL and is in charge of managing air traffic in the upper airspace of Belgium, Luxembourg, the Netherlands, and part of the airspace of Germany. Similar organizations exist in Central America (COCESNA) and Africa (ASECNA). 4. Multinational Corporations Finally, a number of States have contracted specialized private multinational companies to establish and operate an ANS system over their territory on their behalf. This model was commonly adopted after the Second World War by developing countries that lacked the financial and technical capability to deploy their own ANS infrastructure. It is gradually disappearing as more and more States acquire the means to provide the services themselves.

air navigation services provider (ansp)  31

III. Certification of ANSPs ICAO does not require ANSPs to be formally certified by the appropriate designating State and it is for each State to verify the competency of the service providers it designates. In Europe, however, a common certification scheme has been imposed under the Single European Sky legislation, which authorizes any ANSP certified under the prescribed requirements to provide Air Traffic Services anywhere within the European Union.

IV. Recent and Expected Developments Recent developments in the ANSPs landscape have resulted not only in a diversity of organizational forms, but also in the emergence of new types of service providers and in a slow transformation of the ANS operating environment. Most ANSPs in the sense of Article 28 CC operate as monopolies within the airspace under their responsibility. The provision of the core activity of national ANSPs, namely, Air Traffic Services, qualifies as a natural monopoly in the sense that it would cost more to have several agencies providing services in the same block of airspace than to entrust the responsibility to a single ANSP. Further, national ANSPs are often legal monopolies, designated as sole service providers regardless of any economic considerations, and the scope of their legal mandate encompasses the full range of ANS. Over recent decades, some States have gradually opened some segments of the ANS activity to competition in the market (e.g., the aerodrome control service or communication, navigation, and surveillance functions). Specialized service providers have appeared as a consequence of this development that focus on one or a few specific activities included in the catalog of ANS or supporting the latter’s delivery. Contrary to State-mandated ANSPs, these specialized ANSPs operate in a market environment. They are established in the form of private corporations and offer their services on a commercial basis. For instance, in countries such as the United Kingdom, Spain, and Sweden where the provision of aerodrome control service has been deregulated, commercial service providers are contracted by airport authorities to operate control towers. Instead of purchasing and operating a network of radars for surveillance purposes, a State-designated ANSP might

purchase surveillance data from a commercial data supplier. An ANSP might also opt to buy the flight plan data that are crucial for the performance of its activity from a commercial supplier as an alternative to producing and processing its own set of such data. The expected outcome of such developments is that the core business of State-mandated ANSPs will gradually concentrate on the essential Air Traffic Management (ATM)– related functions while they will increasingly rely on external suppliers for most of the supporting functions.

V. The Civil Air Navigation Services Organisation (CANSO) ANSPs are collectively represented by the Civil Air Navigation Services Organisation (CANSO), an international trade association created in 1997 and based in Amsterdam. CANSO acts as the “global voice of the air traffic management industry” and plays an active leadership role in the development of the regional and global ANS systems. It represents the interests and positions its members on the international front and, more particularly, toward ICAO and the European Union. Francis Schubert

References Air Navigation Services, ANS Provider, Article 28CC, Corporatisation, Privatisation, Autonomous Entities, CANSO. Annex 11 to the Chicago Convention – Air Traffic Services, 15th edition, July 2018. Commercialization and Privatization of Airports and Air Navigation Services Providers, ICAO Doc ATConf/6-WP/6, 2012. Francis Schubert, ‘Corporatisation of ATC Agencies – Drifting Between Private & Public Law’, Annals of Air and Space Law, McGill University, Montreal, vol. XXII, part 2, 1997. Manual on Privatization in the Provision of Airports and Air Navigation Services, ICAO Doc 9980, 1st edition, 2012. Paul S. Dempsey, Richard Janda, Yaw Nyampong, John Saba and Joseph Wilson, ‘The McGill Report on Governance of Commercialised Air Navigation Services’, McGill University, Centre for Research on Air & Space Law, Montreal, 2006. francis schubert

10. Air Operator Certificate

2010) establishes how the certification process of an AOC should be done. The main purpose of this ICAO Manual is to maintain an acceptable standard of operations and safe operating practices. Therefore, it provides in detail the objectives for both the States and operators, in relation to compliance with Annex 6 – Operation of Aircraft, specifically Part I – International Commercial Air Transport – Aeroplanes, and Part III – International Operations – Helicopters. However, each State has its own rules for future air operators in its territory, based on the Manual and possibly other relevant regulation (e.g., EASA regulation, i.e., Regulation 216/2008 for EASA Member States). The length of the procedure varies between States but can take a couple of months. Regarding the content of the AOC, there is a worldwide accepted minimum content provided. Namely, ICAO created the standard regarding the minimum information that an AOC should contain – it is: (1) name of the State of the operator; (2) identification of the issuing authority of the State of the operator; (3) unique AOC number as issued by the State of the operator; (4) expiry date of the AOC; (5) operators registered name; (6) operators trading name (if different from the registered name); (7) operators principal place of business address; (8) operator’s principal place of business telephone number, fax number, and e-mail address; (9) contact details at which operational management can be contacted without undue delay, as well as the name of the document carried onboard that contains those details, for issues related to flight operations, airworthiness, flight and cabin crew competency, dangerous goods, and other questions; (10) a statement that authorizes the operator to perform commercial air operations as defined in the operations specifications, in accordance with the operations manual and appropriate civil aviation regulations (that the country issuing an AOC applied when deciding about giving the authorization); (11) issuance date; (12) title, name, and signature of the authority representative. This is followed by the detailed operations specifications. According to Annex 6 of the Chicago Convention (Appendix 6, at 3.2.), each model of the aircraft that an operator has in its fleet needs to have its list, which includes issuing authority contact details, operator number and AOC number, date of issue and

I. Terminology Air Operator Certificate (AOC) is a certificate authorizing an operator to carry out specified commercial air transport operations, as defined in Annex 6 to the Chicago Convention (ICAO 2010). It is the approval granted from a national aviation authority, that is, the civil aviation authority or another competent body, to an aircraft operator allowing it to operate aircraft for commercial purposes. Without this document an operator is not allowed to carry any commercial air transport operations, which means that AOC is something an operator should obtain prior to applying for commercial rights in a domestic or international air transport market. A certified copy of AOC should be carried onboard an airplane at all times.

II. Law on AOC 1. International Law States prescribe different requirements an operator should fulfill in order to obtain an AOC, as well as different forms and contents of the certificate – but there are certain international regulations as well. Regardless of differences, requirements for the issuance of an AOC generally concern the organizational and commercial aspects of an established operator, with emphasis on safety of operation (Havel, Sanchez [2014], p. 340]. Thus, it can include the following: airworthiness of the aircraft, adequacy of personnel, crew training system, aircraft operation system, compliance with regulation, and a quality system ensuring that, staff responsible for training, maintenance, operators’ financial soundness, and carriers (operators) compulsory liability insurance. Through these requirements, a State evaluates each operator to make sure that the operator is capable of conducting safe operations. Regardless of differences that exist between States regarding the conditions prescribed, there is an international regulation on the procedure of application for an AOC. ICAO’s Manual of Procedures for Operations Inspection, Certification and Continued Surveillance (ICAO Doc 8335, 32

air operator certificate  33 signature of the authority representative, aircraft model, and types and area of operations as well as special limitations and authorizations. For issuing any type of AOC, a country usually charges an air operator with a fee, which can vary, but it is usually based upon the type and weight of the aircraft intended for operation. 2. EU Regulation The AOC is also regulated under a set of rules at the EU level. The Basic Regulation stipulates that the granting and validity of an operating license shall be dependent on the possession of a valid AOC specifying the activities covered by that operating license. This shows the important connection between those two documents but also the primary importance of the AOC. Different from the AOC, the operating license authorizes an undertaking to provide air services as stated in it. This authorization is granted by the competent licensing authority, which may be the EU Member State’s national aviation authority, several national aviation authorities of Member States acting jointly, or EASA itself. The Basic Regulation provides mutual recognition of the operating licenses issued by those organizations. At the moment of writing, only two EU air operators have obtained their EASA AOC (Wizz Air Hungary and Luxaviation Group). The benefit of the EASA AOC in comparison to holding a national AOC comes from the fact that for those operators, instead of the operator’s State’s authority, EASA now acts as their competent authority for safety oversight. That allows the operator to have multiple operating bases in different Member States because EASA has a consistent oversight based on the same EASA standards, and the operator does not have to deal with different approaches of each State. EU Regulation 965/2012 contains provisions for different types of air operations. Pursuant to Regulation 216/2008, it lays down technical requirements and administrative procedures related to air operations and is applicable to all operators of airplanes and helicopters that have their principal place of business/are established/or reside in an EU Member State. EU Regulation 965/2012 contains annexes that prescribe the so-called IR-OPS – implementing rules Operations – for which reason it is also called IR-OPS or EASA OPS regulation. There are hundreds of

IR-OPS under this EU Regulation that regulate different types of civil air operations: specialized and non-specialized, commercial and non-commercial, with complex motorpowered aircraft and with other-than-complex motor-powered aircraft. Annex II of EU Regulation 965/2012, also called “Part-ARO” (authority requirements for air operations) establishes requirements for EASA Member States’ national aviation authorities with regard to the implementation and enforcement of that Regulation and the certification and oversight of registered air operators. These requirements are laid out in a series of subparts, the most important including Subpart GEN (general requirements) and AOC (air operator certificate), Subpart OPS (air operations), and Subpart RAMP (ramp inspections of aircraft of operators under the regulatory oversight of another State). In general, ORO AOC contains the necessary requirements for a company to be certified as an AOC air operator. In ORO AOC 100 it is provided that “prior to commencing commercial air operations, the operator shall apply for and obtain an air operator certificate (AOC) issued by the competent authority,” followed by the list of information that an operator must provide to the competent authority and other requirements that should be fulfilled. Other requirements, regarding cabin crew training, personnel, facilities, and documentation, are regulated in the subsequent provisions, namely ORO AOC 120, 135, 140, and 150, respectively. Similarly to the provisions of EU Regulation 965/2012, EU Regulation 452/2014 lays down technical requirements and administrative procedures related to air operations of third country operators (TCOs). At the EU level, there is a public list of authorized third country operators issued by European Aviation Safety Association (EASA). Each authorized third country operator is given an AOC number and EASA TCO code. 3. Other National Laws National laws regulate AOCs differently but sometimes also use different terminology. For example, in the United States, there is a difference between “air carrier certificate” and “operating certificate,” the former one being issued to a carrier that will conduct interstate, foreign, or overseas transportation, and the latter one being issued to a carrier that will conduct intrastate transportation (wholly iva savić

34  elgar concise encyclopedia of aviation law within the same State of the United States). Further certification procedure depends on the kind of operations that the carrier-applicant wishes to conduct and the scope of the operations.

III. Concluding Remarks Albeit the high level of harmonization of air law at the international level and the existence of specific ICAO standards, there are differences in national laws regarding the conditions, content, and issuing procedure for AOC. Furthermore, when approving foreign State operators, some States place additional requirements upon them (e.g., United States, Canada, China, etc.), which practically means carriers that want to offer services in one (or more) of those States need to obtain an AOC from their State of registry and comply with additional requirements in that/those States. In Canada, for example, when applying for a foreign air operator certificate for operation of passenger flights to a Canadian airport where passenger screening takes place, carriers are required to comply with the Canadian Aviation Security Regulations 2012 (CASR 2012) and applicable Security Measures. They must also meet the requirements of the Secure Air Travel Regulation (SATR) and be in compliance with the Enhance Passenger Protect Program. In China, any foreign air carrier aiming at obtaining operation specifications needs to comply with the applicable provisions of Rules of Operations Certifications for Foreign Air Carriers Engaged in Public Air Transportation, Operations Specifications for Foreign Air Carriers, standards from ICAO Annexes 1, 6, and 8, and General Flight Rules of the People’s Republic of China and other civil aviation rules and regulations concerning the operations, safety, security, and air traffic control of foreign civil aircraft as well as “other relevant laws, rules and regulations.” ICAO has recognized impracticalities of these situations and addressed them in its Assembly Resolution A36-6, based on which it has developed standards (Annex 6) and Doc 8335, aiming at recognition and harmonization between the ICAO Member States. Since 2008, States recognize as valid the AOC issued by another State, provided the AOC meets Annex 6 requirements. Since January 2010 States have adopted harmonized AOC iva savić

layout based on the Annex 6, as explained supra at paragraph I. In that regard also, when granting licenses, international aviation organizations have developed rules on acceptable means of compliance and alternative means of compliance. They allow organizations and national authorities to apply different criteria and/or procedures when deciding on the grant of an operating license, but in a specified and limited manner. This concept has been universally recognized and implemented with the aim of allowing flexibility in the application of norms and standards regulating licensing of air operators. In that sense, both acceptable and alternative means of compliance are not binding rules but rather a tool that allows for greater interpretation of certain binding rules with the aim to make them applicable also in cases where there is no room for their direct application. Finally, another way to solve the problem, which some States resort to, is to conclude bilateral or multilateral agreements on aviation safety. There is a list of certified air operators that exists at the global level. Since 2008, an International Register of AOC was established by ICAO. Through this Register, ICAO is collecting the data of the AOC and associated operations specifications and it is making it available to the States. Iva Savić

References Annex 6 to the Convention on international civil aviation – Operation of aircraft, Part I International Commercial Air Transport – Aeroplanes, ICAO, Ninth edition, July 2010. Canadian Aviation Regulations (SOR/96– 433), Aeronautics Act, Subpart 1 — Foreign Air Operations. Commission Regulation (EU) 965/2012 of 5 October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council, [2012] OJ L 296, pp. 1–148. Commission Regulation (EU) 452/2014 of 29 April 2014 laying down technical requirements and administrative procedures related to air operations of third country operators pursuant to Regulation (EC) No 216/2008 of the European

air operator certificate  35 Parliament and of the Council Text with EEA relevance, [2014] OJ L 133, pp. 12–26. Groenewege, A.D., Compendium of International Civil Aviation, 2nd edition, 1998/1999. Havel, B.F., Sanchez, G.S., The Principles and Practice of International Aviation Law, Cambridge University Press, 2014. How to Certify an Air Operator Certificate (AOC) in EASA, EASA Quality Compliance, at http://eas​aqua​lity​comp​ liance​.com​/ how​-to​-certify​-an​-air​-operator​ -certificate/ (accessed 20th April 2022). Manual of Procedures for Operations Inspection, Certification and Continued Surveillance (ICAO Doc 8335), 5th edition, 2010. Regulation (EC) 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast) (Text with EEA relevance), [2008] OJ L 293, pp. 3–20.

Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 (Text with EEA relevance), PE/2/2018/REV/1, [2018] OJ L 212, pp. 1–122. Rules of Operations Certifications for Foreign Air Carriers Engaged in Public Air Transportation, https://fsop​.caac​.gov​ .cn​/files​/2​-OPERATIONS​- CER​TIFI​CATI​ ONFOREIGN​-AIR​-TRANSPORTATION​ -CARRIERS​.pdf.

iva savić

11. Air Piracy and Crime

or exercise of control, by force or violence or threat of force or violence and with various wrongful intent of an aircraft in flight in air commerce.” While this definition is not universally recognized, it is still remarkable that such a definition was already created as a crime under a domestic legal framework in the lack of international treaty framework to define such an act as a crime. Huang states that the term “air piracy,” or “aerial piracy,” refers to the offenses of hijacking of civil aircraft or an extended form of threats, that is sabotage of aircraft. His approach seems more reasonable than the one in the Convention on the High Seas (1958) as multiple academic publications that refer to the term immediately draw attention to the number of hijackings, when discussing air piracy. Air piracy has also been recognized as “a new pattern of transnational crime” that falls under the scope of “unlawful acts against the safety of international aviation” as written by Knut Hammarskjold, a former director general of the International Air Transport Association (IATA).

I. Piracy in the Air as Crime Piracy has been a problem not only on the high seas but also in the airspace. However, this was not a common problem in the air when the Chicago Convention on International Civil Aviation, hereinafter the Chicago Convention (1944), was drafted in 1944. The purpose of the drafting conference of the Chicago Convention (1944) was to “work together, so that the air may be used by humanity, to serve humanity,” according to the then president of the United States, Franklin Delano Roosevelt, as cited by Huang. The notion of “piracy” became connected with the airspace for the first time in the Convention on the High Seas, hereinafter the Convention on the High Seas (1958). According to Article 15 the Convention on the High Seas (1958), piracy is defined as “any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of… a private aircraft.” These acts should be directed on the high seas against another aircraft or against persons or property, or the aircraft attacked should be outside the jurisdiction of any State, according to the same article. A voluntary participation with knowledge of the piracy also is considered as piracy itself. What these definitions entail is that there should be a pirate aircraft that commits an illegal act against another aircraft. Joyner also concludes that the Convention on the High Seas (1958) is not applicable to hijacking of aircraft as “the legal ingredients which compose air piracy are not the receipt for aircraft hijacking” (Joyner [1974]).

III. Aerial Piracy Conventions McWhinney refers to the Tokyo Convention (1963), the Convention for the Suppression of Unlawful Seizure of Aircraft, henceforth referred as the Hague Convention (1970), and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, hereinafter the Montreal Convention (1971), as three Aerial Piracy Conventions (McWhinney [1987]). These three Conventions deal with the issue of air piracy and crime differently, and they met with problems, which led to the drafting of another convention. For instance, although the Tokyo Convention (1963) marked a major attempt to solve the issues of unruly acts, which may include air piracy and other crimes, it was not widely ratified. Moreover, the most significant problem that the Tokyo Convention (1963) failed to address was that contracting States were not obliged to grant extradition. The nature of offenses that are covered by the Tokyo Convention (1963) are different from air piracy, which is recognized as an international crime and that are caused by political and private motives. Also, the number of hijackings was still increasing at the end of the 1960s. Air pirates were granted political asylum, which gave them protection.

II. Early Approach – Example of the United States Rather than relying on the definition provided in the Convention on the High Seas (1958), the definition drafted by the US Congress is more aligned with the approach that is taken by the current international civil aviation industry. Possibly even before the conclusion of the Tokyo Convention (1963) designed to tackle acts and offenses that harm the safety of the aircraft, the US Congress defined the term “air piracy” in 1961 Wurfel (1969). Then, the term was defined as “any seizure 36

air piracy and crime  37 To address the issue of the still increasing number of acts of air piracy after the conclusion of the Tokyo Convention (1963), the Hague Convention (1970) aimed to meet that need. Articles 1 and 2 make air piracy, that is hijacking, an international crime, which is punishable. Many States considered the Hague Convention (1970) as an extradition treaty, which was the subject that the Tokyo Convention (1963) did not cover. The famous principle of aut dedere aut judicare that represents the duty to extradite or to submit for prosecution to relevant authorities in case of no extradition, laid out in Article 7 of the Hague Convention (1970), addressed the issues left unsolved in the Tokyo Convention (1963). However, despite efforts made, Article 7 of the Hague Convention (1970) does not absolutely obligate extradition or prosecution. While a major step forward, violence against international civil aviation remained a threat. Outside the international legal framework that was mentioned above, there were other measures taken internationally. For instance, the role of the ICAO was emphasized. Annex 17 to the Chicago Convention on Security, which contains Standards and Recommended Practices (SARPs) identifies air piracy and crime, or hijacking collectively, as an act of unlawful interference and calls for ratification of the Aerial Piracy Conventions and also implementation of National Security Programs, which is a security equivalent to the State Safety Program under ICAO regimes. IATA also raised awareness of air piracy at the Security Advisory Committee of ICAO through the coordination of preventive measures that were designed internationally. Some individual States reacted more actively to air piracy, for example, the United States, by giving more power to airlines, such as the authority to transport suspicious passengers who might jeopardize the safety of the aircraft. Passenger screening was formally implemented and enforced as an anti-air piracy measure.

IV. Unsolved Issues – Montreal “Sabotage” Convention (1971) and Beijing Protocol Efforts, including legal efforts, have been made to decrease the number of air piracy incidents and crimes pursuant to guidelines for governments when dealing with air piracy, as well as practical measures. However,

violence against international civil aviation in the form of hostage taking, sabotage of aircraft, or communication of false information, is still present. This led the international civil aviation community to find a new legal solution, that is the Montreal “Sabotage” Convention (1971). In 2010, the Protocol Supplementary to the Hague Convention (1971) was adopted, in Beijing, China, at the same diplomatic conference where the Convention on the Suppression of Unlawful Acts relating to International Civil Aviation, the Beijing Convention (2010), was adopted. As Grigorieff and others explained, the Beijing Protocol amended the Hague Convention (1970) by expanding material scope and jurisdiction, by enhancing cooperation among parties, by including human rights provisions, and by clarifying extradition clauses (Grigorieff and others [2019]). The goal of the amendment is to “better address the modern threats to the safety of civil aviation.”

V. Concluding Remarks The number of security threats, including air piracy, has decreased thanks to the efforts made by the international civil aviation community. International legal regimes have not only been drawn up, but they have also been amended according to the new types of threats, as evidenced by the amendment to the Hague Convention (1970). It is still a fact that law cannot stop air piracy entirely, but international protocols testify to the ongoing cooperative efforts of the international civil aviation community to safeguard the industry. Jinyoung Choi

References Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, UNTS 1973. Convention on the High Seas, 29 April 1958, 450 UNTS 11, 13 UST 2312. Griegorieff C-I and others, ‘Attacks against Aviation: Beijing Convention and Protocol Now in Force’ (2019) 44(2) Air and Space Law 125 Hammarskjold K, ‘Air Piracy as an International Crime: Suggestions for International Action’ (1976) 32 International Review of Criminal Policy 14. jinyoung choi

38  elgar concise encyclopedia of aviation law Huang J, Aviation Safety and ICAO (PhD dissertation, Leiden University 2009). ICAO, Annex 17 Security – Safeguarding International Civil Aviation Against Acts of Unlawful Interference (11th edn, ICAO 2020). Joyner ND, Aerial Hijacking as an International Crime (A.W. Sijthoff 1974). McWhinney E, Aerial Piracy and International Terrorism (2nd revised edn, Martinus Nijhoff Publishers 1987).

jinyoung choi

Shepard IM, ‘Air Piracy: The Role of the International Federation of Airline Pilots Associations’ (1970) 3(1) Cornell International Law Journal 79. Wurfel SW, ‘Aircraft Piracy – Crime or Fun?’ (1969) 10 William & Mary Law Review 820.

12. Air Services Agreements

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The term “Air Services Agreements” (ASAs, occasionally also called ATAs for Air Transport Agreements) refers to agreements regulating air transport services between the contracting parties.

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I. The Advent of Bilateralism

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Before World War II international air services were often performed without formal understanding of the meaning of ASAs. Rather, governments gave concessions directly to foreign airlines in order to increase services.

According to the International Civil Aviation Organization (ICAO) all “freedoms” beyond the fifth are characterized as “so-called,” as only the first five freedoms have been officially recognized as such by an international treaty. Commonly used however are the following additional freedoms:

1. The Chicago Convention The Chicago Conference took place in 1944. In Article  1 of the Convention on International Civil Aviation, commonly known as the Chicago Convention (CC), the contracting States recognized that every State has complete and exclusive sovereignty over the airspace above its territory (“principal of sovereignty”). According to Article 6 CC, it was not possible to operate scheduled international air service over or into the territory of another contracting State without the other State’s special permission. To foster growth in international aviation and gain access to new markets, States started to seek such special permissions through ASAs. As such, ASAs are formal treaties between States, commonly accompanied and supplemented by memoranda of understanding (MoU) and/or exchanges of formal diplomatic notes. It is often State practice to publish only treaty-level agreements, whereas MoU and diplomatic notes are regarded as confidential.

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2. Freedoms of the Air The Chicago Convention stipulated a set of traffic rights, referred to as the “Freedoms of the Air.” Those five freedoms are: ●

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non-traffic purposes (also known as Second Freedom Right); Third Freedom of the Air: the right to put down, in the territory of the first State, traffic coming from the home State of the carrier (also known as Third Freedom Right); Fourth Freedom of the Air: the right to take on, in the territory of the first State, traffic destined for the home State of the carrier (also known as Fourth Freedom Right); Fifth Freedom of the Air: the right to put down and to take on, in the territory of the first State, traffic coming from or going to a third State (also known as Fifth Freedom Right).

First Freedom of the Air: the right to fly across the territory of another State without landing (also known as First Freedom Right); Second Freedom of the Air: the right to land in another state’s territory for

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39

Sixth Freedom of the Air: the right of transporting, via the home State of the carrier, traffic moving between two other States (also known as Sixth Freedom Right); Seventh Freedom of the Air: the right of transporting traffic between the territory of the granting State and any third State with no requirement to include on such operation any point in the territory of the recipient State, i.e., the service need not connect to or be an extension of any service to/from the home State of the carrier; Eighth Freedom of the Air: the right of transporting cabotage traffic between two points in the territory of the granting State on a service which originates or terminates in the home country of the foreign carrier or (in connection with the so-called Seventh Freedom of the Air) outside the territory of the granting State (also known as Eighth Freedom Right or “consecutive cabotage”); Ninth Freedom of the Air: the right of transporting cabotage traffic of the granting State on a service performed entirely within the territory of the granting State (also known as Ninth Freedom Right or “stand alone” cabotage).

40  elgar concise encyclopedia of aviation law 3. Bilateral and Multilateral Agreements Bilateral Air Services Agreements (ASAs) are agreements concluded between two signatory countries whereas the terms “plurilateral” or “multilateral” air services agreements extend to more than two parties. The Chicago Convention drew up as early as 1944 two multilateral agreements: ●

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the International Air Services Transit Agreement (IASTA), in which the first two freedoms were opened to all signatories (“Two Freedoms Agreement”). Currently the treaty has been signed by 135 States; the International Air Transport Agreement that contains five freedoms (“Five Freedoms Agreement”) has been signed by only 11 States.

The scarce participation in the Five Freedoms Agreement shows that it was difficult to agree on further mutual concessions on a multilateral basis. Bilateral air services agreements became the rule. The most traditional example of a bilateral air services agreement is the US-UK Air Transport Agreement of 1946, the socalled Bermuda I Agreement. Concluded in the aftermath of World War II, it represented a compromise between the liberal American views and the “State-controlled” British system. It has served as a prototype for bilateral ASAs all over the world for almost 40 years, with some deviations especially in the field of capacity and frequency. The Bermuda II Agreement, which replaced the Bermuda I Agreement in 1977, was more restrictive and has not served as a model as its predecessor did. 4. Bilateral Open Skies Agreements The US Deregulation Act of 1978 changed the US internal aviation market. Similarly, the EU internal market was gradually liberalized by three regulatory packages (1987, 1990, and 1992). These internal ambitions to deregulate and liberalize the aviation market also changed external aviation policies. This change was reflected in the so-called Open Skies policy in ASAs. It is aimed at eliminating government intervention in airline decision-making about routes, capacity, and pricing. katja brecke

The system of bilateral ASAs with its limitations regarding foreign investments promoted the concept of alliances, codeshares, and other ways of cooperation. 5. Topics Covered by ASAs Topics covered by bilateral ASAs vary, but they usually include traffic rights, designation, routes, capacity, pricing, airline nationality requirements with substantial ownership and control clauses, licensing, safety, aviation security, charges etc.

II. European Developments 1. The Rise of the EU External Aviation Policy The European Union has developed a unique approach with regard to ASAs that was triggered during a crisis of 2001. The Court of Justice of the European Union (CJEU) had to decide several cases brought by the European Commission against Austria, Belgium, Denmark, Finland, Germany, Luxembourg, and Sweden based on the bilateral “Open Skies” agreements those States, respectively, concluded with the United States. On 5 November 2002, the CJEU ruled in the so-called Open Skies judgments (C-466/98, C-467/98, C-468/98, C-469/98, C-471/98, C-472/98, C-475/98, and C-476/98) that certain provisions of these agreements were in breach of EU law. In particular, the CJEU identified an infringement of the freedom of establishment as enshrined in Article 43 Treaty Establishing the European Community (TEC), respectively, Article 49 of the Treaty of the Functioning of the European Union (TFEU). Traditional designation clauses that were contained in bilateral ASAs of the European Member States did allow the respective third country to reject, withdraw, or suspend the permissions or authorizations of an air carrier that had been designated by a Member State but that is not substantially owned and effectively controlled by that Member State or its nationals. Moreover, the CJEU found that certain provisions infringe the external competence of the European Community, including computerized reservation systems, intra-Community tariffs, and time slots. For over 50 years the Member States were accustomed to dealing with these matters at a national and bilateral level. Thus, the “Open Skies” judgments constituted a break with the

air services agreements  41 past and marked the start of the EU external aviation policy. 2. The 2005 Roadmap and the Three Pillars In order to achieve compliance with EU law and to give all EU air carriers non-discriminatory access to routes between the European Union and third countries, existing ASAs had to be amended either by bilateral negotiations between each Member State concerned and its partners or through the so-called horizontal agreements. The term “horizontal agreements” refers to international agreements negotiated by the European Commission on behalf of EU Member States in order to bring the respective bilateral agreements in line with EU law. The traditional designation clause had to be replaced with a standard or “community clause,” permitting all EU carriers to benefit from the freedom of establishment. Following the “Open Skies” judgments, the EU’s Council of Transport Ministers adopted in 2003 a package of measures, including a mandate for the European Commission to open negotiations with third countries, the “horizontal mandate” (Council Decision 11323/03 of 5 June 2003, restricted document). Furthermore, to coordinate the negotiations of Member States with third countries, Regulation (EC) No. 847/2004 of the European Parliament and of the Council was adopted on 29 April 2004. It establishes a procedure for notifying and authorizing negotiations. (i)

First Pillar

The aim of bringing existing bilateral ASAs that EU Member States have with third countries into conformity with EU law was thus adopted as the first pillar of the EU external aviation policy in the 2005 roadmap developed by the EU Commission and Council (COM (2005) 79 final). According to the European Commission, the joint effort of the Commission and the Member States has brought into conformity more than 1,000 bilateral agreements with 122 States. Thereof, traditional bilateral negotiations brought changes in 340 bilateral agreements with 73 partner States. Additionally, horizontal negotiations with 41 countries and one regional organization (West African Economic and Monetary

Union, WAEMU) with eight member States were conducted, representing an additional 670 bilateral agreements. (ii)

Second Pillar

(iii)

Third Pillar

The second aim is to create a wider Common Aviation Area (CAA or European Common Aviation Area, ECAA) with neighboring countries to the south and east of the EU. This includes negotiations with countries in the western Balkans, namely the Republic of Albania, Bosnia and Herzegovina, the Republic of Croatia, North Macedonia, the Republic of Montenegro, the Republic of Serbia, and the United Nations Interim Administration Mission in Kosovo (OJ L 285, 16.10.2006). Further agreements were offered to eastern European partners Georgia (2010), Moldova (2012), Armenia (2021), and Ukraine (2021). Furthermore, association agreements have been concluded with Mediterranean partnership countries, the so-called EuroMediterranean Aviation Agreement (EMAA). Morocco (2006), Jordan (2010), and Israel (2013) have signed. Negotiations are ongoing with Tunisia, Lebanon, Azerbaijan, and Algeria. By acting with a single voice, the EU aims to reach “comprehensive aviation agreements” with global partners.

III. EU-US Open Skies Agreement The first and most prominent example of such a comprehensive agreement is the EU-US Air Transport Agreement that was concluded in 2007 between the EU Member States as well as the EU itself and the United States (Council Decision 2007/339/EC). Occasionally, it is also referred to as interregional air transport agreement. Its economic importance manifests by connecting the two largest aviation markets in the world with more than 800 million people. In 2010, a protocol was signed to amend the initial agreement, the so-called second stage agreement (OJ 2010, L223/3). In 2011 the agreement was extended to Norway and Iceland. With the agreement, the United States accepted the concept of the “community clause” or the “EU designation clause.” Legal certainty was restored for the transatlantic market in light of the requirements of the katja brecke

42  elgar concise encyclopedia of aviation law CJEU’s “Open Skies” judgments. With its liberal approach, the agreement went beyond the typical scope of bilateral ASAs. It shifted the focus from listing restraints toward a more complex regulation of competition. Furthermore, the aim of the agreement was to enable the parties to tackle new challenges in important areas, including but not limited to safety, security, and environment. Other agreements followed the model of the EU-US Open Skies Agreement, e.g., the 2009 EU-Canada Agreement and the EU-Qatar Agreement of 2019.

IV. Concluding Remarks The term “Air Services Agreements” refers to agreements regulating air transport services between the contracting parties. They are as such international trade agreements, concluded by States and regional organizations. Throughout history, ASAs mirror the spirit of the times in seeking a balance between the conflicting political priorities of protectionism and liberalization. In the aftermath of World War II, the contracting States incorporated protectionist elements into the Chicago Convention. Bilateral ASAs originated as a logical consequence of the principle of sovereignty and constituted the first step in the liberalization process. Bilateral Open Skies Agreement, primarily promoted by the United States after deregulation of the US internal market, expanded the degree of liberalization further. Finally, when the EU stepped in to negotiate comprehensive agreements, liberalization was taken to a completely new level. The result is that international aviation is regulated by a complex web of over 3,000 interlocking ASAs with varying degrees of deregulation and liberalization. This type or system of trade arrangements does not exist in any other industry.

katja brecke

Air transport services as facilitated by ASAs form the basis of global connectivity, and, as such, they are important for society and the global economy. They determine commercial abilities and economic opportunities, and they drive investments. Topical issues remain, such as the relaxation of ownership and control requirements or with regard to environment and sustainability. Katja Brecke

References Ariane Debyser, Briefing on EU External Aviation Policy, European Parliamentary Research Service (EPRS), European Parliament, May 2016. Benjamyn I. Scott and Andrea Trimachi, Fundamentals of International Aviation Law and Policy (Routledge 2019). Brian F. Havel, Beyond Open Skies: A New Regime for International Aviation (Kluwer Law International 2009 ed.). ICAO, Database of World’s Air Services Agreements, https://data​.icao​.int​/wasa. ICAO, Manual on the Regulation of International Air Transport (Doc 9626), Third Edition, 2018. Pablo Mendes de Leon, Introduction to Air Law, Eleventh Edition (Wolters Kluwer 2022). Peter van Fenema, EU Horizontal Agreements: Community Designation and the ‘Free Rider’ Clause, XXI/3, 31(3) Air & Space Law Journal 172–195 (2006). P.P.C. Haanappel, Bilateral Air Transport Agreements 1913–1980, 5 Md. J. Int’l L. 241 (1980). Rachel Y. Tang, International Air Service Controversies: Frequently Asked Questions, Congressional Research, Service, May 2015.

13. Air Traffic Management

worldwide implementation of the CNS/ATM program is steered by the ICAO Global Air Traffic Management Operational Concept.

II. Scope

I. Definition

1. Air Traffic Services Air Traffic Services (ATS) constitute a key component of the ATM functions and are defined as:

Air Traffic Management (ATM) is a generic term that encompasses various specific services and functions covered by the broader catalog of Air Navigation Services (ANS). It is defined by ICAO as “the dynamic, integrated management of air traffic and airspace including air traffic services, airspace management and air traffic flow management – safely, economically and efficiently – through the provision of facilities and seamless services in collaboration with all parties and involving airborne and ground-based functions.” The Single European Sky Regulations offer a slightly different wording and define ATM as “the aggregation of the airborne and ground-based functions (air traffic services, airspace management and air traffic flow management) required to ensure the safe and efficient movement of aircraft during all phases of operations.” The objective of ATM is to “enable aircraft operators to meet their planned times of departure and arrival and adhere to their preferred flight profiles with minimum constraints and without compromising agreed levels of safety.” The modern concept of ATM is based on the work of the FANS (Future Air Navigation Services) Committee established by ICAO in 1983. The resulting ICAO CNS/ATM program was intended to build the operational and technical capability of the global Air Navigation Services (ANS) system with a view to cope with the significant growth of air traffic following the deregulation of air transportation. The objective of the CNS/ATM program was to optimize the performance of the ANS system thanks to the introduction of the most advanced available and expected technologies. The CNS (Communication/ Navigation/Surveillance) part of the program referred to technology solutions while the ATM part related to the operational functions based on the use of such solutions. The ATM concept has introduced two key functions, namely, Air Traffic Flow Management (ATFM) and Airspace Management (ASM) that complement the historical Air Traffic Services (ATS) established by Annex 11 to the Chicago Convention. The harmonized

A generic term meaning variously, flight information service, alerting service, air traffic advisory service, air traffic control service (area control service, approach control service or aerodrome control service).

ATS were introduced to support the aircrew in situations where the density and complexity of air traffic required external support to always ensure the safety and efficiency of flights. ATS are governed by Annex 11 to the Chicago Convention. The Air Traffic Control service (ATC) is a subset of ATS, itself subdivided in three separate services, serving different phases of flight: a) the area control service is responsible for the control of aircraft operating in control areas, outside of the airspace reserved for aerodrome, approach, and departure operations. Aircraft under the responsibility of an Area Control Centre (ACC) normally operate on level flight within an airway; b) the approach control service (APP), in charge of “those parts of controlled flights associated with arrival or departure.” According to ICAO, “approach control service is provided either by an aerodrome control tower or area control centre. Alternatively, approach control service may instead be provided by an approach control unit when it is considered necessary or desirable to establish a separate such unit;” c) the aerodrome control service (ADC) is in charge of providing air traffic control service for aerodrome traffic in the vicinity of the aerodrome or on its maneuvring area. Aircraft operating on an aerodrome’s apron are under the responsibility of the Apron Management Service. The Apron Management Service does not form part of ATS and is an 43

44  elgar concise encyclopedia of aviation law airport function regulated under Annex 14 to the Chicago Convention. On some aerodromes, it is delegated by the airport authority to the organization in charge of ATS while on others the function is performed by the airport authority itself. The objectives of ATC are to “prevent collisions between aircraft; […] prevent collisions between aircraft on the manoeuvring area and obstructions on that area” and “expedite and maintain an orderly flow of air traffic.” Except under specific conditions, terrain clearance does not fall under the responsibilities of ATC and the pilot-in-command of an aircraft always retains the final authority as to the disposition of the aircraft even when it is subject to ATC. The objective of the Flight Information Service (FIS) is to “provide advice and information useful for the safe and efficient conduct of flights.” Flight Information Service must be provided to “[a]ll aircraft which are likely to be affected by the information and which are provided with air traffic control service or otherwise known to the relevant air traffic services units.” FIS is not meant to be a “stand-alone” service but is intended to be incorporated in the provision of ATC. In many cases, it is the same agent who provides ATC, FIS, and Alerting Service (ALRS) to all aircraft within the airspace under his responsibility. However, in those parts of the airspace where traffic density and complexity do not justify a full ATC service, States may elect to provide only FIS and ALRS, and these services are delivered by specialized FIS operators. In such cases, the responsibility for FIS provision is vested with a Flight Information Centre (FIC). The scope of the information falling under the remits of FIS is very broad and covers various subjects, such as meteorology, volcanic activity, the release into the atmosphere of radioactive materials or toxic chemicals, changes in the serviceability of navigation aids, and aerodromes’ conditions. The relevant information can be transmitted to aircraft in numerous forms, depending on the nature of the information (point-to-point verbal communication, broadcast, automatic voice broadcast, or digital broadcast). A specific subset of FIS can be established at aerodromes in the form of an Aerodrome Flight Information Service (AFIS), defined as “the provision of information useful for francis schubert

the safe and efficient conduct of aerodrome traffic at those aerodromes designated for use by international general aviation (IGA) where the appropriate air traffic services (ATS authority) determines that the provision of aerodrome control service is not justified, or is not justified on a 24-hour basis.” The Alerting Service (ALRS) is established to “notify appropriate organisations regarding aircraft in need of search and rescue aid, and assist such organisations as required.” The ALRS is provided when ATS operators are made aware that a particular aircraft is or may be in need of search and rescue assistance. Annex 11 of ICAO requires Alerting Service to be provided “for all aircraft provided with air traffic control service, in so far as practicable, to all other aircraft having filed a flight plan or otherwise known to the air traffic services and to any aircraft known or believed to be the subject of unlawful interference.” Whereas Annex 11 § 2.3 specifies that “the air traffic services shall comprise three services” the official definition of ATS given by ICAO includes a fourth service: the air traffic advisory service, defined as “a service provided within advisory airspace to ensure separation, in so far as practical, between aircraft which are operating on IFR flight plans.” The objective of the air traffic advisory service is “to make information on collision hazards more effective than it would be in the mere provision of flight information service.” While it formally appears as a component of Air Traffic Services, the air traffic advisory service is subject to a particular status. Historically, the air traffic advisory service was intended for deployment in parts of the airspace where FIS was not sufficient to ensure the safety and efficiency of air navigation, but where the concerned State lacked the financial or practical means to deploy a fully fledged ATC service. Annex 11 specifies that “where air traffic advisory service is implemented, this is considered normally as a temporary measure only until such time as it can be replaced by air traffic control.” States were expected to gradually upgrade the level of service to formal ATC, as they gained the required capabilities. That service is a hybrid, the scope and duties of which fall in between FIS and ATC. Operators in charge of delivering advisory service will provide advice and guidance to aircrews that contain more than information but are not vested with the

air traffic management  45 positive authority of a formal ATC clearance or instructions. 2. Air Traffic Flow Management Air Traffic Flow Management (ATFM) is a capacity management function the purpose of which is to ensure that the number of aircraft operating at a specific aerodrome or flying within a given airspace block never exceeds the number of aircraft that can be safely managed. ATFM is defined as “a service established with the objective of contributing to a safe, orderly and expeditious flow of air traffic by ensuring that ATC capacity is utilized to the maximum extent possible, and that the traffic volume is compatible with the capacities declared by the appropriate ATS authority.” Annex 11 requires that ATFM “shall be implemented for airspace where air traffic demand at times exceeds, or is expected to exceed, the declared capacity of the air traffic control services concerned.” In practice, a maximum capacity, normally measured in terms of aircraft per hour, shall be defined for each specific airspace sector or airport runway. The competence to declare the ATC capacity normally rests with the designated ANS Provider. Since a common ATFM framework is particularly effective in those areas where numerous countries share a vast and complex airspace, ICAO recommends that ATFM “should be implemented on the basis of regional air navigation agreements or, if appropriate, through multilateral agreements.” 3. Airspace Management Airspace Management (ASM) is defined as “a planning function with the primary objective of maximising the utilisation of available airspace by dynamic time-sharing and, at times, the segregation of airspace among various categories of users based on short term needs.” ASM was developed in response to the continuous growth of air traffic over the past decades, which has resulted in airspace becoming a scarce resource. The purpose of ASM is to manage the airspace in such a manner that the available airspace can be allocated among the different categories of users in an equitable manner. While the main focus of ASM is on civil versus military users, the function extends to all subcategories of civil airspace users, such as commercial flights, light aviation aircraft, hot air balloons, etc. The

implementation of ASM is primarily based on the Flexible Use of Airspace (FUA) methodology, defined as “an airspace management concept described by the International Civil Aviation Organisation (ICAO) and developed by the European Organisation for the Safety of Aviation (Eurocontrol), according to which airspace should not be designated as either purely civil or purely military airspace, but should rather be considered as one continuum in which all users’ requirements have to be accommodated to the maximum extent possible.” Francis Schubert

References Aerodrome Flight Information Service (AFIS), ICAO Circular 211-AN/128, 1988. Air Traffic Management, Procedures for Air Navigation Services, ICAO Doc 4444, ATM/501, 16th Edition, 2016. Air Traffic Services, Annex 11 to the Chicago Convention, 15th Edition, July 2018. Air Traffic Services Planning Manual, ICAO Doc 9426, 1st (provisional) Edition, 1984. Commission Regulation (EC) No 2150/2005 of 23 December 2005 Laying Down Common Rules for the Flexible Use of Airspace. Commission Regulation (EU) 255/2010 of 25 March 2010 Laying Down Common Rules on Air Traffic Flow Management Amended by Commission Implementing Regulation (EU) No 923/2012 of 26 September 2012. Global Air Traffic Management Operational Concept, ICAO Doc 9854, 1st Edition, 2005. ICAO’s Policies on Charges for Airports and Air Navigation Services, ICAO Doc 9082, 9th Edition, 2012. Manual on Civil-Military Cooperation in Air Traffic Management, ICAO Doc 10088, 1st Edition, 2020. Regulation (EC) 549/2004 of the European Parliament and of the Council of 10 March 2004 Laying Down the Framework for the Creation of the Single European Sky, as Amended by EC Regulation 1070/2009, [the Framework Regulation]. Traffic Management, Air Traffic Control, Flight Information, Alerting Service, Capacity Management, Airspace Management. francis schubert

14. Air Traffic Services

will have the final say regarding any suggested alteration of flight plans.

III. Alerting Services

I. The Definition of Air Traffic Services

Alerting Services shall issue alert notices to the appropriate organizations regarding aircraft in need of search and rescue aid and assist such organizations as required. Alerting Services shall be available to all aircraft provided with air Air Traffic Control Service; insofar as practicable, to all other aircraft having filed a flight plan or otherwise known to the Air Traffic Services; and to any aircraft known or believed to be the subject of unlawful interference. There are three different alert stages: the uncertainty phase (communications are lost with an aircraft for more than 30 minutes); the alert phase (following the uncertainty phase, subsequent attempts to establish communication with the aircraft have also failed or an aircraft is known or believed to be the subject of unlawful interference); and the distress phase (following the alert phase, further unsuccessful attempts to establish communication with the aircraft point to the probability that the aircraft is in distress, fuel on board is considered to be insufficient, or a forced landing is otherwise imminent).

The following definition of Air Traffic Services (ATS) is provided in Annex 2 (Rules of the Air), Annex 11 (Air Traffic Services) and also in Doc 4444 of ICAO: “A generic term meaning variously, flight information service, alerting service, air traffic advisory service, air traffic control service (area control service, approach control service or aerodrome control service).” A similar definition can be found at the European Union level as to which see Article 2(11) of (EC) No. 549/2004 of 10 March 2004, laying down the framework for the creation of the Single European Sky. In summary, Air Traffic Services falls within the broader category of Air Navigation Services, and it essentially comprises four main services: (1) Flight Information Services, (2) Alerting Services, (3) Air Traffic Advisory Services, and (4) Air Traffic Control Services. Hence, to fully grasp the meaning of Air Traffic Services, we must first assess each of the aforesaid sub-services.

IV. Air Traffic Advisory Services Flight Information Services are aimed to II. Flight Information Services

Air Traffic Advisory Services are information services provided within advisory airspace to ensure separation, insofar as practical, between aircraft that are operating on Instrument Flight Rules (IFR). The objective of the Air Traffic Advisory Service is to make information on collision hazards more effective than it would be in the mere provision of Flight Information Service. It may be provided to aircraft conducting IFR flight in advisory areas or on advisory routes outside of controlled airspace. Such areas or routes will be specified by the State concerned. Air Traffic Control Service provides a much more complete service than Air Traffic Advisory Service. Advisory areas and routes are therefore not established within controlled airspace, but Air Traffic Advisory Service may be provided below and above control areas. Air Traffic Advisory Service does not afford the degree of safety and cannot assume the same responsibilities as Air Traffic Control Service in respect of the avoidance of collisions, since

giving advice and information useful for the safe and efficient conduct of flights (definition of Annexes 2 and 11 and Doc 4444 of ICAO). It shall include any information likely to affect flight safety, including SIGMET information (i.e., information issued by a meteorological watch office concerning the occurrence of specified en route weather and other phenomena in the atmosphere that may affect the safety of aircraft operations); information concerning preemption volcanic activity; changes in the serviceability of navigation aids; changes in the condition of aerodromes (namely snow, ice, or significant depth of water); and information on unmanned free balloons. It will also include weather conditions reported or forecast at departure; destination and alternate aerodromes; and collision hazards. It should be noted that the provision of this extremely relevant information service does not relieve the pilot-in-command of an aircraft of any responsibilities, as said pilot-in-command

46

air traffic services  47 information regarding the disposition of traffic in the area concerned available to the unit providing Air Traffic Advisory Service may be of doubtful accuracy and completeness. To make this quite clear, Air Traffic Advisory Service does not deliver “clearances” but only “advisory information” and it uses the words “advise” or “suggest” when a course of action is proposed to an aircraft.

V. Air Traffic Control Services Air Traffic Control Services are provided for the purpose of preventing collisions between aircraft and, in the maneuvering area, preventing collisions between aircraft and obstructions; and expediting and maintaining an orderly flow of air traffic. Aircraft separation is essential for the prevention of en route collisions and to maintain an orderly flow of traffic. Separation can be made vertically (different flight levels), horizontally (same level but maintaining different routes with a longitudinal or lateral separation), or by a combination of vertical and horizontal separation. Also, Air Traffic Control Services are provided in three separate areas, the area control (predetermined regional area), the approach control (for departing and arriving aircraft within the vicinity of an aerodrome), and the aerodrome control (final approach/landing, takeoff and general aerodrome traffic, including taxiing and apron movement). Air traffic control units grant authorization for an aircraft to proceed under certain conditions, this is known as “clearance.” Clearances are based solely on expediting and separating air traffic and do not constitute authority to violate any applicable regulations for promoting the safety of flight operation or for any other purpose. Clearances issued by controllers relate to traffic and aerodrome conditions only, and they do not relieve a pilot of any responsibility whatsoever in connection with a possible violation of applicable rules and regulations.

VI. Concluding Remarks Articles 22 and 28 of the Chicago Convention of 1944 set forth the main basis for the international provision of Air Navigation Services, providing that each contracting State must adopt all practical measures to facilitate and expedite navigation by aircraft between the territories of the contracting State, and to

prevent unnecessary delays to aircraft, crews, passengers, and cargo. In an increasingly congested international air space, Air Traffic Services play a pivotal role in flight safety and efficiency. Only by means of a joint effort of all contracting States will it be possible to achieve the desirable efficiency in Air Traffic Services that will allow for a significant reduction in costs, delays, and even carbon emissions, thus benefiting passengers, airlines, and other stakeholders, and truly putting the aviation industry at the forefront of the fight against climate change and global warming. A significant move forward was taken by the Single European Sky initiative launched by the European Commission in 1999. João Marques de Almeida

References Achieving the Single European Sky. Goals and Challenges, Pablo Mendes de Leon, Daniel Calleja Crespo, Kluwer Law International, Aerospace Law and Policy Series Volume 8, 2011. Air Transport: Single European Sky, Fact Sheets on the European Union, European Parliament, available at https://www​ .europarl​.europa​.eu​/factsheets​/en​/sheet​/133​ /air​-transport​-single​-european​-sky. Future Demand for Air Traffic Services, Wallace L. Ashby, Proceedings of the IEEE, Vol. 58. No. 3, pp. 292–299, March 1970, available at https://ieeexplore​ .ieee​ .org​/xpl​/tocresult​.jsp​?isnumber​=31130. IATA’s Updated Position on SES2+ September 2021, available at https://www​.iata​.org​/ contentassets​/02d​cd8e​c59d​a4f7​98c1​3aeb​ b738ffa76​/iata​-ses​-position​.pdf. Liability of Air Navigation Service Providers: Towards an International Solution, Lazar Vrbaski, available at https://eala​ .aero​ /wp​ -content ​/uploads​/2014​/05​/ Liability​-of​-Air​ -Navigation​-Service​-Providers​.pdf. Questions and Answers – Single European Sky: For an Efficient and Sustainable Air Traffic Management, European Commission, available at https://ec​.europa​ .eu​ /commission​ / presscorner​ /detail​ /es​ / QANDA​_20​_1716. Report from the Commission to the European Parliament and the Council on the Implementation and Progress of the Single European Sky during the 2012– 2014 Period, available at https://transport​ joão marques de almeida

48  elgar concise encyclopedia of aviation law .ec​.europa​.eu​/system​/files​/ 2016​- 09​/com​ %25282015​%2529663​.pdf. Single European Sky 2+ Package: Amended Commission Proposal, Think Tank European Parliament, available at https:// www​ .europarl​ .europa​ .eu​ / thinktank​ /en​ / document​/ EPRS​_BRI(2020)659421.

joão marques de almeida

Single European Sky – The Transformation of the Aviation Industry Based on the Dynamic Capabilities, Natalia Hartman, Mircea Boscoianu, INCAS Bulletin, Vol. 7, No. 1, pp. 97–109, 2015.

15. Air Waybill

II. Overview of the Air Waybill 1. Character and Purpose of the Air Waybill The air waybill is the most essential document issued in respect of the international carriage of cargo by air. One of the main purposes of the air waybill is its evidentiary function. The Montreal Convention’s Article 11 provides that the air waybill is prima facie evidence, that is, evidence sufficient to establish a fact or raise a presumption unless disproved or rebutted, (i) of the conclusion of the contract of carriage, (ii) of the acceptance of the cargo, and (iii) of conditions of carriage mentioned therein. Furthermore, any statements in the air waybill relating to the weight, dimensions, and packing of the cargo are prima facie evidence of the facts stated. However, the air waybill is only prima facie evidence of the external condition of the packaging; the contents of the parcel, container, etc. may very well be damaged without it showing externally. In this manner, the air waybill evidences the contract or agreement of carriage between the parties and thus plays a central role in the liability regime.

I. Introduction 1. The Warsaw System Today, when goods are being transported by air within the same State, or from one State to another, the air consignor or the airline will often issue an air waybill (AWB). The air waybill constitutes both a receipt of the goods for transportation and evidence of the contract of carriage. The air waybill system used today was first internationally introduced by the Convention for the Unification of Certain Rules relating to International Carriage by Air, adopted in Warsaw in 1929 (the “Warsaw Convention”). At the time of the negotiation of the Warsaw Convention, the aviation industry was still in its infancy. It is apparent that the industry has evolved significantly since then, both in volume and in its abilities on a technical level. Therefore, the system under the Warsaw Convention has been changed and adjusted to ensure a well-functioning interplay to the still developing industry, namely in 1955, where a protocol was adopted in The Hague to amend the Warsaw Convention (the Warsaw Convention as amended by the 1955 Hague Protocol is referred to as the “Warsaw-Hague Convention”).

2. Delivery and Description of the Air Waybill All the international air conventions contain similar provisions on the requirement as to delivery and description of air waybills. According to Article 4 (1) of the Montreal Convention, an air waybill shall be delivered in respect of the carriage of cargo, the deliverer being unspecified. This was more extensively described in the Warsaw Convention and the Warsaw-Hague Convention Article 5 (1) of the Warsaw Convention and the Warsaw-Hague Convention determine that “every carrier of goods has the right to require the consignor to make out and hand over to him a document called an air waybill”. However, there are no material changes with regard to the description of the air waybill in the Montreal Convention 1999. Furthermore, Article 7 (1) of the Montreal Convention determines that the air waybill shall be made out by the consignor in three original parts.

2. The Montreal Convention 1999 To consolidate the fragmented liability regime of the Warsaw System in one single text, the Convention for the Unification of Certain Rules Relating to International Carriage by Air was adopted in Montreal in 1999 (the “Montreal Convention”). The Montreal Convention provides certainty as to the applicable international air convention and the contracting parties’ corresponding rights and obligations. As a result, it creates greater international uniformity of legislation and reduces the need for costly litigation as to the applicable legal regime. However, the material regulation of the air waybill did not change significantly under the Montreal Convention, and the different articles on the air waybill in the WarsawHague Convention are, to a large extent, identical with the articles on the air waybill in the Montreal Convention. The regulation of the air waybill is set in Article 4–11 of the Montreal Convention.

●

49

the first part shall be marked “for the carrier” and shall be signed by the consignor. This part is for the carrier’s file, and the signature of the consignor

50  elgar concise encyclopedia of aviation law

●

●

is an acknowledgment that the contents of the air waybill are correct; the second part shall be marked “for the consignee” and shall be signed by the consignor and by the carrier. This part is for the consignee, who may use it to complain to the carrier if the goods are not delivered in good condition, or not delivered at all; the third part shall be signed by the carrier and shall be handed to the consignor after the goods have been accepted by the carrier for carriage. This part is to facilitate disposal of the goods in accordance with the consignor’s right of disposal during the carriage and prior to delivery to the consignee.

In practice, however, the air waybill is often made out and completed by the carrier, as agent of the consignor and on the consignor’s instructions. Nevertheless, it is still the responsibility of the consignor to ensure the correctness of the particulars and statements contained in the air wabyill, and the consignor is ultimately liable for the accuracy of any particulars provided to the carrier in the air waybill. The consignor is considered to be the person best placed to obtain and to verify the information given in the air waybill. Under the Montreal Convention, the air waybill must contain an indication of the places of departure and destination, eventually one or more agreed stopping places, and an indication of the weight of the consignment, cf. Article 5. The list of required particulars in the Montreal Convention has been simplified significantly in comparison to the Warsaw Convention (Article 8 of the Warsaw Convention requires a long list of 17 particulars, and the Montreal Convention significantly modernizes and simplifies the list of particulars to be included). The consignor is liable to the carrier for any damage occasioned by the absence, insufficiency, or irregularity of any such information or documents, unless the damage is due to the fault of the carrier or his servants and agents. Summarily, the consignor bears the responsibility for obtaining and providing the correct relevant information and documentation because he, as mentioned above, is in the best position to do so, and as a result, he is liable to the carrier if the information or documentation is incorrect or insufficient.

Under current practice, air waybills are usually not negotiable. This generally means that an air waybill is not a document of title and cannot be used to transfer ownership of the goods from one party to another and, therefore, the named consignee may procure delivery of the goods on payment of the charges due and on complying with the conditions of carriage as set in the air waybill, meaning that the air waybill is said to not be subject to negotiations, i.e., non-negotiable. The reasoning behind the non-negotiability of most air waybills is generally the speed of air transport and consequently that the goods are in transit only for short periods of time – in comparison, in maritime shipping, consignees may often sell the goods while the goods are still ocean-bound; this is generally not deemed necessary for air transportation.

III. Standard Form Air Waybill and Conditions of Contract The International Air Transport Association (IATA) has introduced a standard form air waybill for international cargo carriage by air that has been adopted as the international norm. The layout and wording of this standard form enables the incorporation of all the particulars required by the Montreal Convention. On the reverse of the standard form air waybill certain conditions of contract are stated. The conditions of contract include the provisions required under, among others, the Montreal Convention as well as other terms, applicable where the Montreal Convention does not apply or deals with matters not governed by the convention. The terms cover issues such as limitation of the air carrier’s liability, the liability of servants and agents of the carrier, written notice of complaint within a specified number of days, time limitation, and related matters. The conditions of contract is often supplemented by the airline’s own conditions of carriage as incorporated into the air waybill by reference.

IV. Electronic Air Waybills Today the air cargo industry is in a transitional period. The industry is switching from almost exclusively relying on paper-based processes in the domestic and international movement of goods to using electronic air waybills only.

morten hans jakobsen and jens erik kundby nielsen

air waybill  51 The Montreal Convention allows the consignor and the airline to use simplified electronics to facilitate shipments (electronic air waybills) eliminating the need to print, handle, or archive the paper and, by doing so, simplifying the air cargo process. It follows from Article 4 (2) of the Montreal Convention that any other means than a traditional paper air waybill that preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill. In other words, the electronic air waybill is the digital equivalent of the traditional paper air waybill and is catered for in the Montreal Convention. The electronic air waybill substitutes for the paper version of all documents exchanged between the relevant parties to any contract regarding the delivery of goods performed by an aircraft for reward. These documents may include customs paper, commercial documents, transportation documents, or any other paperwork. The use of an electronic air waybill is applicable for all air freight shipment. This was considered appropriate in order to encourage as many operators in the industry as possible to make the necessary changes in the digital transition and transformation of the international air transport industry. Upon request, the carrier must deliver a cargo receipt to the consignor permitting identification of the consignment and access to the information stored electronically. Other than that, Article 4 (2) does not set any limits for the parties’ access to using electronic air waybills. The innovative rules on electronic air waybills should be seen in the light of technological developments. Using an electronic air waybill in place of a traditional paper air waybill may benefit the parties involved in international air transportation by reducing costs, speeding up the processing time, and improving productivity, and it will also constitute an environmentally friendly alternative to the traditional paper air waybill. However, the limits stated by Article 4 (2) of the Montreal Convention in the form of the carrier’s obligation to deliver the cargo receipt to the consignor have been considered necessary in order to also safeguard the interests of the consignor. As mentioned above, ultimately, the air consignor is liable for the accuracy of

any particulars provided to the carrier in the air waybill. In practice, electronic air waybills have gradually become the default carriage contract and their use is expanding rapidly. This is a major step forward in the aviation industry where paper documents, step by step, are becoming a thing of the past. Morten Hans Jakobsen and Jens Erik Kundby Nielsen

Legislation Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air, Signed in Warsaw on 12 October 1929, as Amended by the Protocol Done at the Hague on 28 September 1955, Signed in Montreal on 25 September 1975. Protocol to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air, Signed in Warsaw on 12 October 1929, Done at the Hague on 28 September 1955. The Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed in Montreal on 28 May 1999. The Convention for the Unification of Certain Rules relating to International Carriage by Air, Signed in Warsaw in 1929.

Case law Air France v. Belamich, 9 February 1990. Arkwright Boston Manufacturer’s Mutual Insurance Company v. Intertrans Airfreight Corp., 6 November 1991.

Literature Malcolm Clarke. (2010). Contracts of Carriage by Air, 2nd ed. Taylor and Francis, London. Pablo Mendes de Leon. (2017). An Introduction to Air Law, 10th ed. Kluwer Law International. Report of the United Nations Conference on Trade and Development. (2006). “Carriage of Goods by Air: A Guide to the International Legal Framework.” Shawcross and Beaumont. (2000). Air Law, 4th ed. LexisNexis UK, London.

morten hans jakobsen and jens erik kundby nielsen

16. Aircraft

In fact, since the advent of the missiles, it was clear that any other machine able to fly point to point, without support derived from the reaction of the air, should have been legally considered. Indeed, machines, such as missiles or satellites, that fly without support derived from the reaction of the air are excluded from this definition. Conversely, “unmanned aerial vehicles” (UAV), commonly known as “drones,” are included in the concept of “aircraft,” as is apparent from Article 8 of the Chicago Convention: “No aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization”. In October 2004, during the ICAO 35th Assembly, the second part of this Article was amended as follows: “Each contracting State undertakes to insure that the flight of such aircraft without a pilot in regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft”. For the first time in an international context, a more precise definition of UAV has been introduced, distinguishing between UAS (Unmanned Aircraft Systems), which are remotely controlled and A-UAS, which are, instead, completely autonomous.

I. Terminology The position of aircraft under air law is designed to identify and regulate facts and acts that occur during the flight; determine which law should govern property and other rights in aircraft; establish jurisdiction pursuant to national and international law, and distinguish aircraft from other kinds of “flying machines”. The term “aircraft” indicates not only particular types of aerial machine, such as “airplane” and “helicopter,” that have a power source to provide the thrust necessary to obtain lift, but also includes vehicles generally called “balloons.” From a technical point of view, it is possible to distinguish lighter-thanair aircraft, such as airships, and heavierthan-air aircraft, such as airplanes, seaplanes, landplanes, gyroplanes, helicopters, tilt rotors, gliders, and kites. From a legal point of view, such clarification is important in order to classify these vehicles as aircraft and, consequently, apply national rules and international conventions. The Paris Convention relating to the Regulation of Aerial Navigation of 13 October 1919, in its Annex A, identified aircraft as “any machine that can derive support in the atmosphere from the reactions of the air”. Considering the physical aspect of the machine, this definition was appropriate, but it was inadequate in legal terms because not any flying machine is governed by air law. However, this same notion was later adopted – with only small changes – by provisions on air navigation and by some annexes to the Chicago Convention on International Civil Aviation of 7 December 1944, henceforth also referred to as the Convention or the Chicago Convention. The above-mentioned definition has been amended to include the phrase “other than reactions of the air against the earth’s surface” in order to exclude “hovercraft” from the categories of aircraft. Although the Convention does not contain a definition of aircraft, its Annexes 6, 7, and 8 state: “Aircraft means any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface”.

II. Military and Civil Aircraft Aircraft can be used both for military and for civil purposes. Historically, aircraft are used to control or destroy enemy equipment, as happened during the American Civil War and World Wars I and II. As regards military aircraft, it is possible to distinguish between “non-combat aircraft” and “combat aircraft”. Non-combat aircraft are not designed for fighting as their primary function, but may carry weapons for self-defense. Non-combat roles include, for example, search and rescue, reconnaissance, observation, transport, training, and aerial refueling. Instead, “combat aircraft” are designed using its own armament and it can divide broadly into fighters and bombers, with several in-between types, such as fighter bombers and attack aircraft, including attack helicopters. According to a wide definition of aircraft, it is important to note that also UAS are used 52

aircraft  53 in conflict. This is well exemplified by the Russia-Ukraine war, initiated in 2014 and escalated in 2022, whereby UAS have played an essential role. Therefore, aircraft are usually used for civil purposes, such as carrying passengers, mail, and other cargo, or for business and pleasure travel. In fact, the civil air transport has significantly increased with the advent of low-cost airlines since the 1980s. Also the application of UAS in the civil sector is grown in term of stakeholders and types of operations in the past few years. The European Union (EU) expects this sector to exceed more than €10 billion per year within the next 20 years.

III. Law on Aircraft 1. International Since the beginning, the definition of aircraft adopted by US legislation was wide and inclusive. The US Civil Aeronautics Act of 1938 contains the following definition: “aircraft means any contrivance now known or hereafter invented, used or designed for navigation of or flight in the air.” Thus, it was not necessary to update the concept of aircraft in order to encompass new vehicles, such as UAV. Given the above, according to a logical interpretation, not any machine able to transport goods and passengers by air (e.g., “cableway”) can be qualified as an aircraft. The Chicago Convention distinguishes “civil aircraft” from “State aircraft,” specifying that its scope is limited only to the operation of civil aircraft, excluding State aircraft, such as aircraft “used in military, customs and police services”. Article 3 then states that “No State aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof”. Thus, the difference between a civil and a State aircraft is not merely a terminological distinction. The status of an aircraft under air law pertains to the applicability of the Chicago Convention and its Annexes in the case of aircraft classified as civil aircraft. The operation of State aircraft falls under national law and special international arrangements between States.

The issue of nationality of aircraft has always been a point of particular interest and attention. It was discussed at the aviation conferences, which led, respectively, to the Paris Convention of 1919, the Ibero-American Convention of 1926, the Havana Convention of 1928, and the Chicago Convention of 1944. An entire part of the Chicago Convention (chapter III) is devoted to the nationality of the aircraft and establishes that these aerial machines have the nationality of the State in which they are registered. In particular, Articles 17 to 21 contain the rules on registration and distinctive marks of nationality. Article 12 of the Chicago Convention headed “Rules of the air” provides as follows: “Each contracting State undertakes to adopt measures to insure that every aircraft flying over or maneuvering within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and maneuver of aircraft there in force”. Article 17 of the Chicago Convention provides that “Aircraft have the nationality of the State in which they are registered.” The registration of the aircraft in each contracting State is a prerequisite to obtaining the nationality. The State of registration determines the conditions for such registration. Article 18 of the Chicago Convention clarifies that aircraft may not be registered in more than one State, even though registration may be changed from one State to another. Article 29 of the Chicago Convention states that every aircraft of a contracting State, engaged in international navigation, shall carry the following documents: Certificate of Registration; Certificate of Airworthiness; crew licenses; journey log book; list of passengers names and places of embarkation and destination (if it carries passengers); radio license; cargo manifest (if it carries cargo). These conditions are detailed in Annex 7 to the Chicago Convention containing Standards and Recommended Practices (SARPs) on aircraft nationality and registration marks. The ICAO Council adopted the first Standards concerning this issue in February 1949, based on recommendations from the first and second sessions of the Airworthiness Division, held in 1946 and 1947, respectively. Since then only four amendments have been made to the Annex. The latest edition is the fifth mariagiulia previti

54  elgar concise encyclopedia of aviation law one, issued in 2003. The Annex sets out procedures for selection by ICAO contracting States of nationality marks from the nationality symbols included in the radio call signs allocated to the States of registry by the ITU. It sets standards for the use of letters, numbers, and other graphic symbols to be used in the nationality and registration marks and spells out where these characters will be located on different types of airborne vehicles, such as lighter-than-air aircraft and heavier-than-air aircraft. This Annex also calls for the registration of the aircraft and provides a sample of this certificate for use by ICAO contracting States. This certificate must be carried in the aircraft at all times, and an identification plate, bearing at least the aircraft’s nationality, or common mark and registration mark, must be affixed in a prominent position at the main entrance. 2. Regional Regulation: The European Union At European level – Regulation (EC) No. 2042/2003 of 20 November 2003 defined aircraft as “any machine that can derive support in the atmosphere from the reactions of the air other than reactions of the air against the earth’s surface” (Article 2, letter b). This definition is in line with that contained in the Chicago Convention. The EU legislation is at the forefront in civil and military uses of aircraft. In fact, from Regulation (EC) No. 1592/2002, which has established a European Aviation Safety Agency (EASA), the EU has promoted a specific regulation for every type of air machine (e.g., balloons, sailplanes, and UAS). Referring to balloons, the Commission Regulation (EU) 2018/395 of 13 March 2018 has established common detailed rules for the operation of balloons. After a few months, on 14 December 2018, the Commission Implementing Regulation(EU) 2018/1976 regulated sailplanes, that is “a heavier-than-air aircraft that is supported in flight by the dynamic reaction of the air against its fixed lifting surfaces, the free flight of which does not depend on an engine”. More to the point, this Regulation lays down detailed rules for air operations with sailplanes as well as for issuing and maintaining pilot licenses and associated mariagiulia previti

ratings, privileges, and certificates for sailplanes, where such aircraft meet the conditions laid down in points (b)(I) and (II) of Article 2(1) of Regulation (EU) 2018/1139. A special mention should be made of Regulation (EU) 2019/947, on specific rules concerning UAS. In particular, Article 3, § 30, gives a specific definition of “unmanned aircraft” as “any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board”.

IV. Concluding Remarks After more than a century since the first modern aircraft was invented by Orville and Wilbur Wright, the term “aircraft” has definitely changed. The invention of “unmanned aircraft system” and the creation of the U-Space – that is a set of new services relying on a high level of digitalization and automation of functions and specific procedures designed to support safe, efficient, and secure access to airspace for large numbers of drones – has led to the abandonment of the traditional idea of a plane commanded by the pilot. In the near future, the concept of “aircraft” is set to change further in order to respond to the demand to fly faster and in less time. Mariagiulia Previti

References ‘Commission Implementing Regulation (EU) 2018/1976 of 14 December 2018’ Regulation (EC) No. 2042/2003 of 20 November 2003. ‘Commission Regulation (EU) 2018/395 of 13 March 2018.’ ‘Convention on International Civil Aviation’ signed at Chicago, 7 December, 1944. ‘Convention Relating to the Regulation of Aerial Navigation’ signed at Paris, October 13, 1919. Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No. 2111/2005, (EC) 1008/2008, (EU) No. 996/2010, (EU) No. 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) 552/2004 and (EC) 216/2008 of the European Parliament and of the Council

aircraft  55 and Council Regulation (EEC) No. 3922/91. Implemented by Commission Regulation (EU) 2019/947 of 24 May 2019. US Civil Aeronautics Act of 1938, of 23 June 1938. Ambrosini A., ‘Il diritto aeronautico, contributo italiano ad un diritto mondiale’, [1932] Almanacco giuridico forense italiano vol 2, 205–208. Ambrosini A., ‘Nozione tecnico-giuridica dell’aeromobile’, [1923] Diritto Commerciale vol 1, 97–102. Balfour J. (ed), ‘Chapter 16 legal and technical requirements’ in Shawcross and Beaumont Air Law Vol. 1 (Butterworths Limited 1991). Blumenkron J., ‘International safety requirements’ in Paul Stephen Dempsey and Ram S. Jakhu (eds), Routledge Handbook of Public Aviation Law (Routledge–Taylor & Francis Group 2016). Buissing N. and Mendes de Leon P. (eds), Behind and Beyond the Chicago Convention. The Evolution of Aerial Sovereignty (Wolters Kluwer 2019). Cogliati-Bantz V.P., Means of Transportation and Registration of Nationality Transportation Registered by International Organizations (Routledge 2017) 22. Cooper J.C., ‘National Status of Aircraft’, [1950] Journal of Air Law and Commerce 292.

Donia L., ‘La definizione di aeromobile. nel Codice della navigazione’, [1941] Rivista di diritto aeronautico 5–13. Fiallos Pazmiño L.F., ‘The International Civil Operations of Unmanned Aircraft Systems Under Air Law’, in Pablo Mendes de Leon and Tanja Masson-Zwaan (eds), Air & Space Law Vol. 19 (Wolters Kluwer 2021). Gatti T., ‘La nozione giuridico-militare di aeromobile e la sua protezione penale’, [1935] Rivista di diritto aeronautico 70–78. Honing J.P. (ed), The Legal Status of Aircraft (Martinus Nijhoff 1956). Kingsley R., ‘Nationality of Aircraft’, [1932] Journal of Air Law Commerce 50–57. Leanza U., ‘Aeromobile (II. Dir. int.)’ [1988] Enciclopedia del diritto I 9.Marino S., ‘Aeromobile’ [1952] Enciclopedia del diritto vol 1, 642–651. Mastrandea G. and Tullio L., ‘Il compimento della revisione della parte aeronautica del codice della navigazione’, [2006] Diritto Marittimo 679. Masutti A. (ed), Il diritto aeronautico, 3rd edition (Giappichelli Editore 2021). Mendes de Leon P., Introduction to Air Law, 10th edition (Kluwer Law International 2017). Milde M., ‘Aircraft’ in Rudolf Bernhardt (ed), Encyclopedia of Public International Law, vol. 11 (1989), 22.

mariagiulia previti

17. Aircraft Accident Investigation

Annex 13 must be implemented in national or regional regulations. 2. Regional Regulations: The European Union As for countries that are members of the European Union [EU], Annex 13 is largely implemented in European Union (EU) Regulation 996/2010 on the investigation and prevention of accidents and incidents in civil aviation. Annex 13 applies only to international civil aviation however, the European Regulation also applies to domestic flights within the European Union.

I. Introduction Aviation is one of the safest modes of transport, with an accident rate of 2.05 per million flights of aircraft above 5.7 tons departure weight (ICAO Safety Report 2023, p.8). The average citizen’s perception of the risks of flying is considerably more negative than the reality. This has to do with the number of fatalities in case of a crash of a passenger aircraft and the fact that passengers have no control over the aircraft and are therefore completely dependent on others for their safety. Continuous efforts are made all over the world to secure and enhance aviation safety. One of the means to this end is by investigating aircraft accidents and incidents. By retrieving the probable causes and underlying causes, lessons can be learned, to prevent similar occurrences in the future or mitigate the consequences.

III. Objective of Investigation The purpose of accident investigation is to determine the cause or probable cause and to learn from it and thus prevent similar accidents from occurring in the future. It is not the aim to apportion blame or liability. This basic foundation sets out the main objective of an accident investigation. It connects closely to the obligation for each State to “establish an accident investigation authority that is independent from State aviation authorities and other entities that could interfere with the conduct or objectivity of an investigation.” (ICAO Annex 13, Standard 3.2) An investigation authority has to fulfill its tasks strictly objectively and impartially, and it needs to withstand any political or other pressure or interference. The independency from the aviation authority can diminish a real or perceived conflict of interest and enhances the credibility of investigations. The independence of the safety investigation and the separation from other judicial proceedings enhance the ability to collect relevant information without repercussions for those providing it and allows for adequately identifying the causes and contributing factors of an occurrence.

II. Legal Overview 1. International Aircraft accident and incident investigation is considered to be an important means to learn lessons and improve aviation safety by taking appropriate measures to prevent repetition. Therefore, the Convention on International Civil Aviation of 1944, also referred to as the Chicago Convention, contains an obligation for all contracting States, currently 193 States, to initiate an investigation into the circumstances of an aircraft accident that has occurred in one’s territory. When conducting such an investigation, States need to follow the procedures that are laid down in Annex 13 to the Convention. Annex 13 on Aircraft Accident and Incident Investigation describes the particular roles of States involved in the investigation and their respective rights and obligations. Annex 13 is supported by various manuals published by ICAO, such as the “Manual of Aircraft Accident and Incident Investigation” and the “Manual on Accident and Incident Investigation Policies and Procedures”, and the “Manual on Accident and Incident Investigation Policies and Procedures”.

IV. Terminology – Accident and Incident Annex 13 describes three different types of occurrences that might happen to an aircraft, depending on the severity of the consequences. Annex 13 refers to them as accidents, serious incidents, and incidents. An accident is defined as an occurrence associated with the operation of an aircraft in which 56

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a person is fatally or seriously injured as a result of being in the aircraft, direct contact with any part of the aircraft, or direct exposure to jet blast pressure; the aircraft sustains significant damage or structural failure requiring major repair; or the aircraft is lost or rendered completely inaccessible.

A serious incident is defined as an incident involving circumstances indicating a high probability of an accident associated with the operation of an aircraft. An incident is defined as “an occurrence, other than an accident, associated with the operation of an aircraft which affects or could affect the safety of the operation.” (ICAO Annex 13, Paragraph 1 Definitions). The distinction between these three types of occurrences is important because it relates to the obligation to investigate.

V. Obligation to Investigate The State of Occurrence has the obligation to (have the independent accident investigation authority) institute an investigation into the circumstances of an aircraft accident. If the occurrence is defined as a serious incident, an investigation obligation arises if it involves an aircraft with a maximum takeoff mass of over 2,250 kg. Annex 13 recommends initiating an investigation into the circumstances of a serious incident involving an aircraft with a maximum takeoff weight of less than 2,250 kg. The investigation obligations of Annex 13 also apply to accidents and serious incidents involving unmanned aircraft with a design and/or operational approval Annemarie Schuite 2022, p.121. In practice, it is sometimes difficult to make a good distinction between the different types of occurrences, especially between a serious incident and an incident. Help can be found in Annex 13, which contains in attachment C a list of examples of serious incidents. Although the Chicago Convention and Annex 13 require the country in which territory the accident occurred to initiate an investigation, Annex 13 also creates the possibility to delegate an investigation or part of the investigation to another country or to a regional accident and incident investigation organization (Standard 5.1). Such a delegation took place in the case of the MH17 investigation.

The Ukrainian accident investigation authority initiated an investigation after the fatal downing of the Malaysian aircraft. However, after several days, the investigation was delegated by Ukraine to the Netherlands, the State which had suffered almost 200 fatalities. As the formal aviation accident investigation authority of the Netherlands, the Dutch Safety Board was from then on tasked with the conduct of the investigation (Dutch Safety Board 2015, p. 14). If an accident occurs outside the territory of a State, for example on the High Seas, the State of Registry is responsible for instituting an investigation (ICAO Annex 13, Standard 5.3).

VI. Notification Obligations For the investigation authority to be able to initiate an investigation, it must be made aware of an occurrence. On the ICAO Accident Investigation website and in the Manual of Aircraft Accident and Incident Investigation (Doc 9756), Part I – Organization and Planning – a list of addresses and contact information of aircraft accident investigation authorities around the world can be found. Annex 13 elaborates on an obligation for the State of Occurrence to forward “with a minimum of delay and by the most suitable and quickest means available” any notification of an accident, a serious incident, or an incident to be investigated within the context of this Annex, to the State of Registry of the aircraft, the State of Operator, the State of Design and the State of Manufacturer, as well as to ICAO if it involves an aircraft with a maximum takeoff mass of 2,250 kg or more (ICAO Annex 13, Standard 4.1). In the EU the reporting obligations have been set down in two regulations. EU Regulation 996/2010 on civil aviation accident and incident investigation obliges “any person involved” in an accident or serious incident to notify the national investigation authority “without delay.” EU Regulation 376/2014 on the reporting, analysis, and follow-up of occurrences in civil aviation contains additional voluntary and non-voluntary reporting obligations. The occurrence reporting regulation requires each EU Member State to designate a competent authority responsible for establishing a mechanism for the independent collection and analysis of aviation occurrences, with the aim of identifying trends at an early stage so that the parties involved can take annemarie schuite

58  elgar concise encyclopedia of aviation law the necessary action to improve flight safety. The European Central Repository is set up to contain all relevant information from occurrence reporting as to allow all stakeholders to have access to relevant safety information. See also Section XII on the Safety Database.

VII. International Cooperation An accident investigation requires international cooperation from all involved States. The State of Registry, the State of Operator, the State of Design, and the State of Manufacturer are entitled to appoint an accredited representative (accreps) to participate in the investigation. Annex 13 defines an accredited representative as “a person designated by a State, on the basis of his or her qualifications, for the purpose of participating in an investigation conducted by another State. The accredited representative would normally be from the State’s accident investigation authority.” An accrep can be accompanied by (technical) advisers, for example from the aircraft manufacturer. The rights and obligations of the accredited representatives are described in Annex 13, mainly in Standard 5.24 and onward. In EU Regulation 996/2010 a similar provision can be found, although it, more restrictively, obliges appointment of a person of the investigation authority as an accredited representative. A State that provides information, facilities, or experts, on request of the State conducting the investigation, is also entitled to appoint an accrep (Standard 5.23). However, a State that is only involved because its residents have been seriously or fatally injured is not entitled to appoint an accrep but may appoint an expert (Standard 5.27). This expert does not take part in the international investigation but may visit the scene of the accident, access factual information approved for public release, and receive information on the progress of the investigation as well as a copy of the Final Report.

VIII. Investigator-in-Charge The State that conducts an investigation has to appoint an investigator-in-charge[IIC] who will be in charge of the investigation. The IIC needs to be provided with “unhampered access to the wreckage and all relevant material, including flight recorders and records of the air traffic services, and shall have unrestricted control over it to ensure that a detailed examination can be made without delay by annemarie schuite

authorized personnel participating in the investigation.” (ICAO Annex 13, Standard 5.6)

IX. Protection of Safety Information To determine the basic cause and other underlying causes of an accident, it is of great importance to collect all relevant information. This requires the cooperation of all persons and organizations involved. To be able to receive all relevant information, without any possible negative consequences for those providing it, several safeguards are established to protect the sensitive safety information. If, in addition to the accident investigation, there are criminal or administrative investigations ongoing into the same occurrence, coordination activities are necessary to avoid the investigations interfering each other. urthermore, cockpit voice recordings, airborne image recordings, and records in the custody or control of the investigation authority, such as statements, recordings of air traffic control communications, analysis of information and draft reports need to be protected and are not be used for any other purpose than the safety investigation (ICAO Annex 13, Standard 5.12; Pablo Mendes de Leon 2022, p. 387). This confidentiality should only be broken by the competent judicial authority in very exceptional cases. Careful consideration should be given to the impact of releasing such information on the availability of safety information in future investigations (Jiefang Huang 2009, pp. 130–131). To be able to make this assessment properly, a special procedure was drawn up for this purpose in 2016, called the balancing test. This procedure is described in Appendix 2 of Annex 13. Each State participating in the international investigation is bound by strict confidentiality obligations. A participating State may not reveal any information from the draft report or parts thereof, or from documents obtained during the investigation, unless the State conducting the investigation has given its express consent or has already published or released these reports or documents. (ICAO Annex 13, Standard 5.26)

X. Draft and Final Report Chapter 6 of Annex 13 indicates that a prescribed format, which can be found in Appendix 1, must be followed when drawing up the final report of an investigation.

aircraft accident investigation  59 However, under circumstances this format may be deviated from, for example, if it concerns a limited investigation into an occurrence. Before a report is finalized, involved States should be given the opportunity to provide their significant and substantiated feedback on the draft report (Standard 6.3). This opportunity is primarily intended to correct any factual inaccuracies. The draft report has to include any intended safety recommendations. After receiving the comments, the State conducting the investigation either should amend the draft final report or, if desired by the State providing the comments, append the comments to the final report. The final report should be published as soon as possible, at least within 12 months after the occurrence (Standard 6.5). If such is not feasible, the State conducting the investigation should release an interim statement pertaining to the status of the investigation on each birthday of the occurrence.

XI. Safety Recommendations At any time during the investigation of an accident or incident, the accident investigation authority of the State conducting the investigation can issue a warning to the appropriate authorities, containing any preventive measures it deems immediately necessary to improve aviation safety. Such safety recommendations might also be addressed to ICAO, in case of involvement of ICAO documents. In case of a safety recommendation of global concern (SRGC), the State issuing the recommendation should also inform ICAO, even if the SRGC is not addressed to ICAO.

XII. Safety Database Annex 13 also requires contracting States to develop a system for mandatory occurrence reporting and to establish and maintain a database in which accident data can be collected and analyzed on actual or potential safety risks as to determine if any preventive measures should be implemented. This database can also include information deriving from the investigation of aviation accidents and incidents. Further provisions on a safety database are contained in Annex 19 on Safety Management. Additional guidance on establishing a safety database is also included in the Safety Management Manual and on the ICAO Safety Management Implementation website.

XIII. Conclusion An important means to improve aviation safety is by investigating accidents and incidents that occurred. By revealing the (probable) cause as well as underlying causes lessons can be learned as to prevent repetition in the future. For this, access to all relevant information is vital. Safety investigation information therefore should be used only for that purpose. The sharing of results and recommendations stemming from accident and incident investigations is equally important. Annemarie Schuite

References Annemarie Schuite, Chapter 8: Accident and Incident Investigation, in Benjamyn I. Scott (ed.), The Law of Unmanned Aircraft Systems (Kluwer Law International, 2nd ed. 2022). Annex 13 to the Chicago Convention, Aircraft Accident and Incident Investigation (12th ed. 2020). Dutch Safety Board, MH17 Crash, 2015, https://www​.onderzoeksraad​.nl​/en​/media​/ attachment​/2018​/7​/10​/debcd724fe7breport​ _mh17​_crash​.pdf. ICAO, Accident Statistics, https://www​.icao​.int​ /safety​/iStars​/Pages​/Accident​-Statistics​.aspx. ICAO, Annex 13 Aircraft Accident and Incident Investigation (12th ed. 2020). ICAO, Manual of Aircraft Accident and Incident Investigation, Part I–IV, Doc 9756 AN/965 (2011–2020). ICAO, Manual on Accident and Incident Investigation Policies and Procedures, Doc 9962 (2nd ed. 2019). ICAO, Manual on Protection of Safety Information, Doc 10053 (1st ed. 2016). ICAO, Safety Management Implementation Website, https://www4​.icao​.int​/smi/#/. ICAO, Safety Management Manual, Doc 9859 (4th ed. 2018). ICAO, Safety Report 2023. Jiefang Huang, Aviation Safety and ICAO (Kluwer Law International 2009). Pablo Mendes de Leon, Introduction to Air Law, Chapter 6, section 5 on Accident Investigation and Prevention (Kluwer Law International, 11th ed. 2022). Regulation (EU) 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC. annemarie schuite

18. Aircraft Collision

500 feet horizontally. Mid-air collisions are always the result of at least one aircraft operator being unaware of the presence of another aircraft in its vicinity and sometimes they have to be reported as a serious incident. Indeed, according to Annex 13 of the Chicago Convention, “near collisions requiring an avoidance maneuver to avoid a collision or an unsafe situation or when an avoidance action would have been appropriate” is listed as an example of what may be serious incident (Attachment C to Annex 13). The most common causes of a mid-air collision are miscommunication, mistrust, error in navigation, deviations from flight plans, lack of situational awareness, and the lack of ACAs, which we explain in later paragraphs. These categories do not include the loss of separation with at least one aircraft on the ground, which may be coded as GCOL (see the next paragraph), NAV (Navigation Errors), and/or RI (Running Incursions: any occurrence at an aerodrome involving the incorrect presence of an aircraft, vehicle, or person on the protected area of a surface designated for the landing and takeoff of aircraft, if the occurrence meets the criteria and usage notes for those categories). False Traffic Collision Avoidance System (TCAS) alerts caused by equipment malfunctions are coded as SCF-NP.

I. Types of Occurrences 1. General Definition Occurrence categories are classified into accidents and incidents, in order to permit analysis of the data in support of safety initiatives. Common taxonomies and definitions establish a standard industry language thereby improving the quality of information and communication. With this common language, the aviation community’s capacity to focus on common safety issues is greatly enhanced. The International Civil Aviation Organization (ICAO) and the Commercial Aviation Safety Team (CAST), which includes government officials and aviation industry leaders, have jointly chartered the CAST/ ICAO Common Taxonomy Team (CICTT). CICTT includes experts from air carriers, aircraft manufacturers, engine manufacturers, pilot associations, regulatory authorities, transportation safety boards, ICAO, and members from Canada, the European Union, France, Italy, the Netherlands, United Kingdom, and the United States. There is not a specific category for Aircraft Collisions, because it is too generic. However, specific categories can be classified as follows: Mid-Air Collisions (MACs), Ground Collisions (GCOL) and similar occurrences, Controlled Flight into Terrains (CFITs), and Occurrences involving collisions and near collisions with birds (Bird Strike).

3. Ground Collisions and Other Similar Occurrences GCOLs are events where aircrafts collide on the runway or while one is on the ground and the other in the air close to the ground. They are covered under Manual on the Prevention of Runway Incursion (ICAO Doc 4444 – PANS-ATM) and they are considered as ground operations. This abbreviation (GCOLs) serves for all aircrafts, excluding rotorcraft, to be used only in cases in which the crew was aware of the true location of the obstacle, but its clearance from the aircraft flightpath was inadequate.

2. Mid-Air Collisions MACs is an accident where two aircraft collide while both are in flight. Due to there being two aircraft involved in this kind of incident or accident and owing to the relatively high velocities of both aircraft, and the subsequent potential impact on the ground or the sea, very severe damage or total destruction usually occurs. That is why this kind of occurrence is one of the most catastrophic imaginable, and even the high risk that this occurrence happens is categorized as Air Proximity Issues, Airborne Collision Avoidance System (ACAS) Alerts, Loss of Separation, or Near Mid Air-Collisions. Near Mid Air-Collisions occur when two aircraft come within 100 feet vertically and

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includes contact with obstacles, such as vegetation, trees and walls, snowdrifts, power cables, telegraph wires and antennae, offshore platforms, maritime vessels and structures, land structures, and buildings; includes collisions during takeoff to and landing from the hover;

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includes water obstacles during takeoff from water, for instance waves, deadheads, ships, swimmers.

Runway Incursions (RIs) could also include other different categories excluded from GCOLs. 4. Controlled Flight into Terrains CFITs are events where aircraft collide with obstacles, for instance, terrain, buildings, masts, and trees while in flight. This collision occurs when an airworthy aircraft under the complete control of the pilot is inadvertently flown into terrain, water, or an obstacle. The pilots are generally unaware of the danger until it is too late. Most CFITs accidents occur in the approach and landing phase of flight and are often associated with non-precision approaches. Many CFITs accidents occur because of loss of situational awareness, particularly in the vertical plane, and many crash sites are on the centerline of an approach to an airfield. Lack of familiarity with the approach or misreading of the approach plate are common causal factors, particularly where the approach features steps down in altitude from the initial approach fix to the final approach fix. 5. Occurrences Involving Collisions and Near Collisions with Birds (Bird Strike) and Other Wildlife Birds are really dangerous for aviation, whereas bird strikes may occur in any phase of flight. The importance of this occurrence is notorious, as bird strikes were previously categorized as “other,” but the last version of the taxonomy issued by ICAO includes a specific entry. Another kind of collision related to birds is the collision with other, or evasive action taken by an aircraft to avoid wildlife on the movement area of an aerodrome or on a helipad/helideck in use. It also includes situations whose consequences are other than a collision, for instance, gear collapsing, which may occur at controlled or uncontrolled airports, or on unprepared/natural landing sites.

II. Collision-Avoidance System: Strategies and Devices 1. Main Strategies The main strategies aimed at avoiding collisions are outlined in the following list:

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strategic conflict management, including airspace design, air traffic flow and capacity management (ATFCM), and traffic synchronization; tactical conflict management, which may consist of ATC conflict management, pilot conflict management, and lateral offset; Air Traffic Control collision avoidance, including short-term conflict alert; TCAS; Visual Airborne Collision Avoidance (See and Avoid), which is the tactic that all the operators flying with Visual Flight Rules have to use.

One of the most challenging tasks posed to civil aviation is to avoid the hazard of collisions with unauthorized drones in the surroundings of the airdromes. Even during the dramatic decrease of traffic due to the COVID-19 crisis, still many drone interferences were observed in the period of the pandemic. It was the London Gatwick airport’s event in December 2018 that brought the attention of the public and the authorities. This is the purpose of the Counter-UAS Action in 2019, which has since been included in the European Plan for Aviation Safety (EPAS) 10. Also, the manual titled “Drone Incident Management at Aerodromes,” in Part 2, which provides guidance and recommendations, and Part 3, which provides resources and practical tools, to deliver on this objective. 2. The TCAS and the Überlingen Case TCAS was designed to determine strategies for avoiding collisions. The preventive system is based on the signal from aircraft transponders and alerts pilots if a potential collision with another aircraft is imminent. The first recorded collision occurred at the Milano Circuito Aereo Internazionale meeting held between 24 September and 3 October 1910 in Milan, Italy. And the first fatality occurred over La Brayelle Airfield, Douai, France, in June 1912. In civil aviation, the first mid-air collision happened in 1956, over the Grand Canyon, where 128 passengers and all crew members died. To standardize the different systems developed by several States, ICAO launched an TCAS prototype by early 1970. ICAO released the third edition of the TCAS Manual (Doc 9863) in 2021. This latest edition is maría jesús guerrero lebrón

62  elgar concise encyclopedia of aviation law aimed at the demands for more operational flexibility with a potential reduction of separations. A leading court case in which the functionality of the TCAS was discussed concerns the Überlingen MAC. On 1 July 2002, over Überlingen, Germany, a MAC occurred between a Tupolev TU‐154 M aircraft operated by Bashkirian Airlines (BAL), traveling from Moscow to Barcelona, and a Boeing 757‐200 freighter operated by DHL Airways Flight 611, traveling from Bergamo to Brussels. A total of 69 died on the Tupolev (57 passengers, most of whom were children and young adults and 12 crew members) and both crew members on the DHL aircraft. There were TCAS onboard both aircraft, but conflicting instructions to TCAS took place from the Air Traffic Control Officer (ATCO) on duty at the time of the accident. The German Federal Bureau of Aircraft Accident Investigation (BFU Safety Investigation) and its final report (May 2004) stated that the “immediate” causes of the accident were the separation infringement not noticed by ATCO in time, and the late instruction of ATCO. And the “systematic” causes of the accident (organizational weaknesses) were the lack of standardization of operational and procedural instructions of the TCAS and the working praxis during low traffic time. A collateral effect of the accident was another victim: the ATCO was killed by a relative of the victims in February 2004. The criminal judgment did not find intentional criminal activity but pointed out that the convicted employees had an opportunity to remedy known safety deficiencies and failed to do so. No party appealed. Notwithstanding, the civil judgment held under the First Instance Court of Barcelona on 3 March 2010, No. 34 against the manufactures of TCAS. This judgment has had a significant impact for two reasons. First, the recognition of the malfunction of the TCAS, and, second, from a legal point of view, it has led to the conclusion that not preventing an event that is a legal obligation to prevent is equivalent to causing it. Both elements were crucial in concluding that the product (TCAS) and its defects were directly linked and were the final and effective cause of the plane crash.

maría jesús guerrero lebrón

3. See and Avoid Although is not the most adequate system for modern commercial aircraft, the “see and avoid” principle remains important for visual traffic, especially in any Class “G” uncontrolled airspace and in busy airspace where ATC does not provide separation to Visual Flight Rules (VFR) traffic. “See and avoid” requires the application of several skills: effective visual scanning, the ability to gather information from radio transmissions from ground stations and other aircraft, the situational awareness, and the development of good airmanship. Besides, several devices contribute to the effective visual scanning, like the anti-collision lights. These are a set of lights required on every aircraft to improve visibility to others as well as collision avoidance measures by warning other pilots. Historically they have used incandescent bulbs, but, recently, lightemitting diodes have been used. Nowadays, they have been replaced by beacon lights and strobe lights. Beacon lights are flashing red lights fitted on the top and bottom fuselage of an aircraft usually on larger passenger aircraft. They are bright enough to be seen from the ground and can be used to identify aircraft from the ground in dark or overcast conditions where the plane itself is not completely visible. Some of them spin to produce the flashing effect, increasing the chance they will be noticed. Their purpose is to alert ground crew and other aircraft that an engine is starting up, running, or shutting down, or that the aircraft is about to start moving. Strobe lights are flashing white lights on the furthest left, right, and, on larger aircraft and some smaller ones, back points of an aircraft. They are the brightest lights on the aircraft and are used to signal that an aircraft is entering or approaching an active runway, or for visibility in dark, clear sky. María Jesús Guerrero Lebrón

References Advisory Circular 20-30B, “Aircraft Position Lights and Anticollision Light Installations”, 20-7-81.

aircraft collision  63 Annex 13 to Convention on International Civil Aviation, Aircraft Accident and Incident Investigation, Twelfth edition, July 2020. Common Taxonomy Team ICAO, “Definitions and Usage Notes”, May 2021, (4.8). Controlled Flight into Terrain (CFIT), SKYbrary.

EASA, Drone Incident Management Aerodromes, Cologne, Germany, 8 March 2021. Mid-Air Collision, SKYbrary. See and Avoid, SKYbrary.

maría jesús guerrero lebrón

19. Aircraft Documentation

d) Its journey logbook; e) If it is equipped with radio apparatus, the aircraft radio station license; f ) If it carries passengers, a list of their names and places of embarkation and destination; g) If it carries cargo, a declaration of the cargo.

I. Safety Assurance An aircraft on an international flight passes over geographical, legal, and political borders easily, even if there are different regulatory requirements or legal systems on the ground. This raises important questions about how to provide assurance about the safety of the flight, the aircraft, and its operating crew. Responsible for the safety and well-being of their citizens, States wish to assert and maintain control over who enters their airspace and the nature and extent of safety assurances required.

Where mandatory documents, such as a Certificate of Airworthiness, have been issued by one contracting State, those documents shall be recognized as valid by other such States. Recognition is required only where the documents have been issued against requirements that meet or exceed the minimum standards established pursuant to the Convention (Article 33). Mutual recognition of this sort enables the safe and orderly operation of the international aviation system. Certificate of Registration An aircraft has the nationality of the contracting State in which it is registered (Article 17), and may be registered only in one such State (Article 18) in accordance with that State’s laws and regulations (Article 19). Section 7 of Annex 7 to the Convention requires each contracting State to maintain and keep up to date a register of aircraft registered by that State. Each aircraft has a unique signature, comprising two elements: its nationality mark and its registration. The information to be included in a register of aircraft and in the Certificate of Registration of an individual aircraft is specified in Section 8 and Figure 1 of Annex 7:

II. The Paperwork The framework established by and pursuant to the Chicago Convention 1944 and its 19 Annexes (“the Convention”) relies on mutual commitments made by contracting States. Civil aircraft from one contracting State will be permitted to fly to and land in another such State on the understanding that the aircraft, the aircraft operator, the personnel on board, and the applicable national regulatory regime meet standards established pursuant to the Convention. The tangible currency of contracting States’ mutual commitments is “the paperwork”: documentary evidence that internationally agreed standards have been applied in practice. Where trustworthy, accurate, and robust evidence is provided and can be verified, a contracting State can be assured that a flight by an operator or aircraft regulated by another contracting State can be completed safely.

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Article 29 of the Convention (Documents carried in an aircraft) provides as follows:

the nationality mark; the registration mark; the identity of the aircraft manufacturer; the manufacturer’s designation of the aircraft; the aircraft’s serial number; the name and address of the aircraft owner.

The Certificate of Registration must also include text that confirms that the aircraft has been entered into the relevant national register in accordance with the Convention and any other applicable regulations. Annex 7 does not prescribe that the certificate be issued in a particular form. Implicit in the regime originally established is the expectation that there would be a physical

Every aircraft of a contracting State, engaged in international navigation, shall carry the following documents in conformity with the conditions prescribed in this Convention: a) Its certificate of registration; b) Its certificate of airworthiness; c) The appropriate licenses for each member of the crew;

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aircraft documentation  65 register of aircraft and that an entry on the register would be evidenced by the issue of a hard copy certificate, which would be carried in an aircraft. This approach reflects the time at which the Convention was first adopted, but the terms of the Convention do not and have not prevented contracting States from making use of technological developments in subsequent decades. Many contracting States now provide online access to their aircraft registers: see, for example, IAA Current Aircraft Register and Monthly Changes. Additionally, some have provided that their aircraft register may capture the required information in both legible and non-legible form, so long as the non-legible form can be reproduced legibly: see for example Article 25(2) of the UK Air Navigation Order 2016. Certificate of Airworthiness Article 31 of the Convention requires that a civil aircraft engaged in international flight has a Certificate of Airworthiness (CofA) issued or rendered valid by the contracting State in which the aircraft is registered. An aircraft is airworthy if it “conforms to its approved design and is in a condition for safe operation” (Annex 8, Part I, Definitions). Importantly, the airworthiness standards in Annex 8 (and the associated operating limitations covered in Annex 6, Part I) are the minimum acceptable level of airworthiness that enable mutual recognition. ICAO’s Airworthiness Manual (ICAO Doc 9760) provides extensive guidance materials and the Convention anticipates that contracting States will also provide further detail in their national frameworks. The Convention does not prescribe the material on which a CofA must be issued. Paragraph 3.3 of Chapter 3 of Annex 8 specifies the information to be contained in and the format of a CofA. The information required is: ● ●

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State of Registry; aircraft nationality and registration marks; aircraft manufacturer and manufacturer’s designation of the aircraft, including the type and model; aircraft serial number; the categories of operation.

A CofA must also state that it has been issued pursuant to the Convention and is valid for a specified period of time or remains valid pursuant to specified continuous airworthiness requirements. Crew Licenses Article 32(a) of the Convention requires that the pilot and operating crew of an aircraft engaged in international flight have certificates of competency issued or rendered valid by the contracting State in which the aircraft is registered. Chapter 5 of Annex 1 sets out the specifications for crew licenses. No specific format or layout is prescribed, but each license must use the specified numbering and number format. Unlike the certificates of registration and of airworthiness, Annex 1 currently states (in paragraph 5.1.2) that a personnel license must be issued in hard copy, “on first quality paper or other suitable material, including plastic cards.”

IV. Other Documentation The list of documents in Article 29 of the Convention is not exhaustive. Additional documents are specified elsewhere in the Convention and its Annexes and may also be required by a contracting State. It is common for national and regional aviation authorities to specify details of the documentation required to fly into their territories. For example: ●

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the list of documentation required for operation in the European Union (EU) can be found in in Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No. 216/2008 of the European Parliament and of the Council: CAT. GEN.MPA.180 Documents, manuals, and information to be carried; US requirements can be found in Part 129 Operations: Foreign Air Carriers and Foreign Operators of US-Registered Aircraft Engaged in Common Carriage sets out the requirements: Part 129 Subpart A and Part 129 Subpart B; requirements for Australia can be found in Part 129 CASR. kate staples

66  elgar concise encyclopedia of aviation law Broadly speaking, the following documents, information, and manuals will be required to provide evidence of compliance with requirements established by or pursuant to the Convention:

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the aircraft flight manual, or equivalent document, that details the limitations within which an aircraft is considered airworthy – Annex 6, Chapter 6, 6.2.3 (b); the certificate of registration – Annex 7; the certificate of airworthiness – Annex 8; the noise certificate – Annex 6, Chapter 6, 6.13 and Annex 16; a copy of the air operator certificate – see Annex 6, Chapter 4, 4.2.1 and Appendix 6 and Attachment D; the operations specifications relevant to the aircraft type, issued with the AOC – Annex 6, Chapter 6, 6.1.2, and Appendix 6, Section 3; any aircraft radio license; the third-party liability insurance certificate(s); the journey log, or equivalent, for the aircraft – Annex 6, Chapter 11, 11.4; the aircraft technical log, which provides information about each flight made by an aircraft, the aircraft’s certificate of release to service, a statement as to the aircraft’s current maintenance status, information about all outstanding defects that have not yet been rectified, and any appropriate guidance on maintenance support; details of any filed air traffic services flight plan – Annex 2, Chapter 3.3.3; current and suitable aeronautical charts for the route of the proposed flight and all reasonable diversion routes – Annex 6, Chapter 6, 6.2.3 (c); procedures and visual signals information for aircraft interception – Annex 6, Appendix 2, 2.1.32; easily accessible information about search and rescue services for the area of the intended flight – Annex 6, Chapter 3, 3.1.7; easily accessible and current parts of the operations manual that are relevant to the duties of the crew members – Annex 6, Chapter 4, 4.2.3. and Appendix 2; the Minimum Equipment List – Annex 6, Chapter 6, 6.2.1 and Attachment E;

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appropriate notices to airmen, aeronautical information service briefing documentation, and meteorological information; any cargo or passenger manifests; mass and balance documentation – Annex 6, Chapter 4, 4.3.1 and Appendix 2, 2.2.6; any operational flight plan used to monitor the progress of the flight and make sure that the aircraft will reach its destination on time and with sufficient fuel on board – Annex 6, Chapter 4, 4.3.3; notification of any special categories of passenger or any special loads.

Requirements relating to continuing airworthiness, designed to ensure that an overall picture of the airworthiness of an aircraft is always available, are set out in Annexes 6 and 8. Section 7.8 of Chapter 7 of ICAO’s Airworthiness Manual provides extensive and helpful guidance on the information to be recorded and, importantly, the manner in which it may be recorded. Attachment B to Chapter 7 provides specific guidance on the acceptance of electronic aircraft maintenance records.

V. New Technologies and Business Practices The availability of information and documentation in electronic form has assumed great importance following the COVID-19 pandemic. Some aviation authorities have provided guidance and information on the form that mandatory documentary evidence must or may take: ●

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in April 2021, the Civil Aviation Authority of New Zealand issued Advisory Circular AC00-6 on Electronic Signatures, Electronic Recordkeeping, and Electronic Manuals: Advisory Circular AC00-6; on 2 December 2021, the Australian Civil Aviation Safety Authority (CASA) published a Plain English Guide to CASR Part 91: General Operating and Flight Rules. Rule 91.100 provides that any document that is required to be carried on a flight may be carried as a copy in electronic form. CASA noted,

aircraft documentation  67

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however, that other States may not accept mandatory documents provided in electronic form; on 16 December 2021, EASA published guidance on the carriage of electronic documents on board aircraft. EASA highlighted that although Commission Regulation (EU) No 965/2012 (see above) refers to “original” certificates of registration, and of airworthiness, to the “original” aircraft radio license and to a “certified true copy” of the air operators certificate, no distinction is drawn between paper and electronic documents. Accordingly, EASA concluded that nothing in the applicable EU rules prevented operators from carrying documents in electronic form.

Contracting States to the Convention may well have laws and regulations that govern electronic signatures, documents, and e-commerce generally. Contracting States have not yet agreed a uniform and generally applicable approach to the use of electronic documents in an aviation context; ad hoc amendments are being made. Accordingly, national provisions on the use of electronic documentation remain relevant to understanding how to demonstrate compliance with applicable aviation requirements. ICAO’s focus on digitization and modernization is noteworthy, however. In addition to the recent adoption of a number of digital air cargo technical specifications, the ICAO Council has approved amendments to Annexes 1 and 7. During its 225th session in March 2022, the ICAO Council adopted amendment 178 to Annex 1. The amendments allow electronic pilots licenses, including a new common format designed to make license verification easier and quicker. “In developing these Standards, care has also been taken to ensure that countries intending to implement electronic licenses will also have to realize systems for their simplified offline verification,” noted ICAO Council President Salvatore Sciacchitano. The amendments took effect on 3 November 2022. In the same session, the Council also adopted amendment 7 to Annex 7. In respect of aircraft registration, the amendment will change the Certificate of Registration: it will be issued to either the aircraft owner, the aircraft operator, or other person,

reflecting commercial practices where an aircraft is operated other than by the aircraft owner. The amendments will also introduce a requirement to issue a Certificate of Deregistration of aircraft. Currently, the format and information in a notification or certificate of deregistration issued by many States is not standardized, which delays reregistration. Amendment 7 to Annex 7 adapts the template of the Certificate of Registration and introduces a template of the Certificate of Deregistration. Amendment 7 to Annex 7 is due to take effect on 2 November 2023, and the provisions related to the Certificate of Registration are scheduled to apply from 26 November 2026. Kate Staples

References Advisory Circular AC00-6 on Electronic Signatures, Electronic Recordkeeping and Electronic Manuals issued by the Civil Aviation Authority of New Zealand, available at https://www​.aviation​.govt​.nz​ /assets​/rules​/advisory​- circulars​/ac000​- 6​ .pdf, accessed on 1 April 2022. Annex 1 to the Convention on International Civil Aviation, Personnel Licensing, 13th Edition, July 2020, available at https:// store​ . icao​ . int ​ / en ​ / a n nex​ -1​ - person nel​ -licensing, accessed at https://www​ .bazl​ .admin ​ . ch ​ / bazl ​ / en ​ / home ​ / specialists ​ / regulations​-and​-guidelines​/ legislation​-and​ -directives​/anhaenge ​-zur​-konvention​- der​ -internationalen​-ziv​illu​f tfa​h rtorgani​.html on 1 April 2022. Annex 2 to the Convention on International Civil Aviation, 10th Edition, July 2005, available at https://store​.icao​.int​/en​/annex​ -2​-rules​-of​-the​-air, accessed at https://www​ .bazl​.admin​.ch​/ bazl​/en​/ home​/specialists​/ regulations​-and​-guidelines​/ legislation​-and​ -directives​/anhaenge ​-zur​-konvention​- der​ -internationalen​-ziv​illu​f tfa​h rtorgani​.html on 1 April 2022. Annex 6 to the Convention on International Civil Aviation, 11th Edition, July 2018, available at https://store​.icao​.int​/en​/ annex​ - 6 ​ - operation​ - of​ - aircraft​ - par t​ - i​ -international​ - commercial​ -air​- transport​ -aeroplanes, accessed at https://www​ .bazl​.admin​.ch​/ bazl​/en​/ home​/specialists​/ regulations​-and​-guidelines​/ legislation​-and​ -directives​/anhaenge ​-zur​-konvention​- der​ kate staples

68  elgar concise encyclopedia of aviation law -internationalen​-ziv​illu​f tfa ​h rtorgani​.html store​ . icao​ . int​ /en​ /airworthiness​ - manual​ on 1 April 2022. -doc​ -9760, accessed at https://www​ .bazl​ Annex 7 to the Convention on International .admin ​ . ch ​ / bazl ​ / en ​ / home ​ / specialists ​ / Civil Aviation, 6th Edition, July 2012, regulations​-and​-guidelines​/ legislation​-and​ available at https://store​.icao​.int​/en​/ -directives​/anhaenge ​-zur​-konvention​- der​ annex​ -7​ -aircraft​ -nationality​ -registration​ -internationalen​-ziv​illu​f tfa​h rtorgani​.html -marks, accessed at https://www​ .bazl​ on 1 April 2022. .admin ​ . ch ​ / bazl ​ / en ​ / home ​ / specialists ​ / ICAO Newsroom Reports, available at https:// regulations​-and​-guidelines​/ legislation​-and​ www​ . icao​ . int​ / Newsroom​ / Pages​ / ICAO​ -directives​/anhaenge ​-zur​-konvention​- der​ -Council​-adopts​-amendments​-supporting​ -internationalen​-ziv​illu​f tfa ​h rtorgani​.html -electronic​-pilot​-licenses​-flight​-operations​ on 1 April 2022. -continuing​ - airworthiness ​ - responsibili​ Annex 8 to the Convention on International .aspx and https://www​.icao​.int​/ Newsroom​ Civil Aviation, 12th Edition, 2018, /Pages​/ Latest​-digital​-air​-cargo​-innovation​ available at https://store​.icao​.int​/en​/annex​ -will ​ - accelerate ​ - global ​ - recovery​ . aspx, -8​-airworthiness​-of​-aircraft, accessed at accessed on 1 April 2022. https://www​.bazl​.admin​.ch​/ bazl​/en​/ home​ Irish Aviation Authority Aircraft Register, /specialists​ / regulations​ - and​ -guidelines​ / https://www​.iaa​.ie​/commercial​-aviation​/ legislation​-and​- directives​/anhaenge​-zur​ aircraft​-registration​-2​/ latest​-register​-and​ -konvention​-der​-internationalen​-ziv​illu​ftfa​ -monthly​-changes-1, accessed on 1 April hrtorgani​.html on 1 April 2022. 2022. Carriage of Electronic Documents on Board Part 129 of CASR, available at https://www​ Aircraft, available at https://www​ .easa​ .casa​ . gov​ . au​ / search​ - centre​ / rules​ / part​ .europa​.eu​/downloads​/134895​/en, accessed -129​- casr​-foreign​-air​-transport​- operators​ on 1 April 2022. -certification​-and​-operating​-requirements, Consolidated text of Commission accessed on 1 April 2022. Regulation (EU) 965/2012 of 5 October Part 129 Subparts A and B, available at 2012 laying down technical requirements https://www​ . ecfr​ . gov​ /current ​ / title ​ -14 ​ / and administrative procedures related to chapter​-I​/subchapter​-G​/part​-129​/subpart-A air operations pursuant to Regulation (EC) and https://www​.ecfr​.gov​/current​/title​-14​/ No 216/2008 of the European Parliament chapter​-I​/subchapter​-G​/part​-129​/subpart​-B​ and of the Council, available at https:// #subpart​-B, accessed on 1 April 2022. eur​-lex​.europa​.eu​/ legal​- content​/ EN​/ TXT​/ Plain English Guide to CASR Part 91, PDF/​?uri​= CELEX​:02012R0965​-20190925​ available at https://www​.casa​.gov​.au​/sites​ &from​=EN, accessed on 1 April 2022. /default​/files​/2021​- 08​/plain​- english​-guide​ Convention on International Civil Aviation -part​-91​-new​-flight​-operations​-regulations​ (Chicago, 7 December 1944), 9th -interactive​-version​.pdf, accessed on 1 April Edition, available at https://www​.icao​.int​/ 2022. publications​/pages​/doc7300​.aspx, accessed UK Air Navigation Order 2016, available at on 1 April 2022. https://www​.legislation​.gov​.uk​/uksi​/2016​ ICAO Doc 9760, Airworthiness Manual, /765​/article​/25​/made, accessed on 1 April 4th Edition, 2020, available at https:// 2022.

kate staples

20. Aircraft Financing (Dry and Wet Lease)

European air carrier could wet lease its aircraft to an Asian air carrier for the period around Chinese New Year, as this is usually a period of increased business in Asia. This benefits the European carrier, as during the wet lease the aircraft generates income it would not have been able to generate while flying in Europe and the crew continues to make its flying hours. The Asian air carrier benefits because it is able to accommodate the increased demand while not having to acquire additional aircraft and employees for only a short duration of increased demand. Another example of a reason for wet leasing is political. In 2017, States surrounding Qatar closed their airspace for aircraft registered in Qatar, thus effectively banning air carriers from Qatar from flying in their airspace. As a wet-leased aircraft remains on the air operator certificate of the wet lessor, the wet leasing of aircraft could be used to overcome the closure of airspace. Benefits of wet leasing are:

Frequent travelers will likely have experience in booking a flight with one air carrier, only to board a flight on an aircraft with the livery and crew of another air carrier. This is due to wet leasing, in which two air carriers agree that the aircraft of one air carrier (wet lessor) will be operating under the air operator certificate of the wet lessor on the routes of the other air carrier (wet lessee). The wet lessor retains operational responsibility and usually provides the aircraft, crew, maintenance, and insurance (ACMI). Wet leases are thus also known as ACMI leases. The air carrier that leases the aircraft only has to provide the fuel and pay for the airport fees, as well as other fees agreed under the wet lease agreement. According to the Federal Aviation Authority (FAA), a wet lease is “any leasing arrangement whereby a person agrees to provide an entire aircraft and at least one crew member.” The term “damp lease” is usually used to refer to a wet-leased aircraft that includes a cockpit crew, but not the cabin attendants. A dry lease is a lease under which the owner of the aircraft provides the aircraft to the lessee without any crew. Dry leases usually take the form of an operating lease as described in the entry on Aircraft Financing (Finance and Operating Leasing). The lessee exercises the operational control of the aircraft and bears the legal responsibility relating thereto under a dry lease. Wet leasing should not be confused with the practice of chartering flights. An important difference is that in the case of chartering, the lessor/charterer will operate the chartered flight on its own route, whereas in wet leasing the wet-leased aircraft will operate on the routes of the lessee. In that sense, chartering is more a method of selling seats than it is a method of leasing. The reason for wet leasing is often found in capacity. Wet leases are mostly short term and therefore provide an air carrier with overcapacity, a means to provide its aircraft to an air carrier in need of more capacity. For example, a European low-budget air carrier likely has more demand in the busier European summer months, which could result in some of its aircraft being less economically feasible in the slower winter months. The

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financial: a wet lessor can operate its aircraft in times where it would not be able to in its home market, thus increasing fleet effectivity. In addition, a wet-leased aircraft requires less capital expenditure from the wet lessee than an aircraft leased under a dry or finance lease; flexibility: a wet lessee can increase its capacity for the short term, without having to enter into long-term arrangements and without having to employ additional crew. For a wet lessor, wet leasing may provide an opportunity to quickly cut economic losses during unforeseen events; geographical: wet leasing enables air carriers to fly routes they would otherwise not be able to.

As over half of all commercial aircraft in the world are currently leased under operating leases and a large part of the rest is subject to finance leases, as described in the entry on Aircraft Financing (Finance and Operating Leasing), due consideration has to be given during the negotiation of a leasing arrangement to the terms governing subleases, of which a wet lease is an example. It could be argued that a wet lease should be subject to less stringent terms than other subleases because the air carrier operating the aircraft under the head lease retains operational control of the aircraft during the wet lease. 69

70  elgar concise encyclopedia of aviation law In negotiating the wet lease agreement itself, the following items are especially relevant: ●

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flight hours: the wet lessor and wet lessee will have to agree on whether there will be a minimum guaranteed number of block hours per period. What happens when the guaranteed hours are not actually flown and who will bear responsibility for that? price: what is the price per block hour? Will this price be affected by flying less hours, for example, due to reduced maintenance costs? term: how long will the wet leasing arrangement remain in place and are there possibilities for an extension? Will the wet leasing be a recurring seasonal arrangement between the parties? Due attention should be paid to regulatory restrictions on the length of wet leasing in the relevant jurisdictions; changes to the flight schedule: the wet lessor will want to limit changes to the flight schedule as much as possible and include an obligation to notify it of a flight schedule change as far in advance as possible, while the wet lessee wants to have maximum flexibility; availability: does the wet lessor guar­ antee availability of the aircraft and is it under the obligation to provide a replace­ ment aircraft in case of unavailability? Is the wet lessor liable for consequential losses?

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grounds for termination: what level of non-performance by either party authorizes the other party to terminate the wet leasing arrangement?

As with any other contractual arrangement, other commercial and legal interests relevant in the context should also be assessed in the wet leasing arrangement. In general, wet leasing arrangements will be more expensive than dry leasing arrangements and the wet lessor, being the operator, will retain more control of how and where the aircraft is deployed than under a dry leasing arrangement. In addition, the wet lessee has less control over its customer experience, as the aircraft and crew are not its own. Nonetheless, wet leasing is vital in today’s global air travel market and provides both the wet lessor and the wet lessee with substantial benefits that are often not available under other types of leasing arrangements. Sam Jonkeren

References Federal Aviation Authority at https://fsims​ .faa​ .gov​ / wdocs​ / 8900​ .1​ / v03techadmin​ / chapter 13/03​_013​_004​​.htm (last accessed 2 May 2022). Hanley D P, Aircraft Operating Leasing, A Legal and Practical Analysis in the Context of Public and Private International Air Law (2011) https://scholarlypublications. universiteitleiden.nl/handle/1887/18146. Mendes de Leon P, Introduction to Air Law (10th edition, Wolters Kluwer 2017).

21. Aircraft Financing (Finance and Operating Leasing)

its obligations, or provides for such transfer upon exercise of a purchase option against payment of a nominal amount, low enough for it to be clearly in the lessee’s interests from the start of the lease to exercise, or the lease term may be for a substantial period of the expected economic life of the aircraft, such that it is not expected to be redeployed for return by the lessor elsewhere afterward. In On Demand Information plc v. Michael Gerson (Finance) plc [2003] 1 AC 368 at 158, Robert Walker LJ of the English Court of Appeal accepted the following explanation by the Institute of Chartered Accountants of the difference between a finance and an operating lease:

I. Finance Leases The importance of aircraft leasing has grown dramatically between 1970, when a negligible number of aircraft was leased, and 2020, by which time over half of all commercial aircraft were leased on operating leases rather than owned by their operators, and many of the remainder are subject to secured financing, including the use of finance leases. Most leases, whether finance or operating leases, will be stated to be governed either by the laws of England and Wales or by the laws of the State of New York. Although finance and operating leases may be similar in form, they differ greatly in effect. A finance lease is, essentially, comparable to a loan secured by a mortgage, where the finance lessor is the lender, and the finance lessee is the borrower. The finance lease may be used in place of or in addition to other more traditional forms of security, such as a mortgage over the aircraft or a pledge of shares over the special purpose entity set up for the sole purpose of buying the aircraft and leasing it under the finance lease. Two points that distinguish a finance lease from a traditional secured loan are (1) the ability of non-bank lenders to provide financing since the loan is in the form of the lease of an aircraft rather than a loan of cash and (2) ownership is kept ab initio in the finance lessor until full repayment of the debt due, thus avoiding the risk of inability to enforce the security in the future upon the occurrence of a default. See entry Aircraft Financing (Purchase of Aircraft). Under a finance lease, rent payable is treated as repayment of the principal amount of the loan and interest thereon under what is, in effect, the loan, and, as the finance lessee pays down the principal, it increases its equity in the aircraft. For accounting, tax, and legal purposes, the finance lessee is treated as the beneficial or economic owner of the aircraft, and the finance lessor as simply a secured creditor. The finance lease may provide for automatic transfer of ownership by the lessor to the lessee at the end of the leasing period, provided the lessee is in compliance with all

Leases can appropriately be classified into finance leases and operating leases. The distinction between a finance lease and an operating lease will usually be evident from the terms of the contract between the lessor and the lessee. An operating lease involves the lessee paying a rental for the hire of an asset for a period of time which is normally substantially less than its useful economic life. The lessor retains most of the risks and rewards of ownership of an asset in the case of an operating lease. A finance lease usually involves payment by a lessee to a lessor of the full cost of the asset together with a return on the finance provided by the lessor. The lessee has substantially all the risks and rewards associated with the ownership of the asset, other than the legal title.

This acceptance was expressly followed in the English High Court by Hamblen J in Celestial Aviation Trading 71 Limited v. Paramount Airways Pvt Ltd [2010] EWHC 185 (Comm) at 58, holding that the lease at issue was an operating lease, and thus refusing equitable relief to the lessee from forfeiture by the lessor for non-payment of rent, since the lessee had no equitable interest in the aircraft to lose: In the present case, by contrast, Paramount only has a right to possess the Aircraft for a proportion of its economic life. As such Celestial retains a very real interest in the Aircraft themselves, including their proper maintenance, the extent of their use, their condition, and their rental and resale value. Possession of the Aircraft will revert to it at a time when the bulk of their economic life is still to run, and there are detailed terms addressing the return of the Aircraft and their required redelivery condition. Celestial therefore retains many of the risks and rewards of ownership.

71

72  elgar concise encyclopedia of aviation law Moreover, Rent was not calculated on the basis of recouping the cost of the Aircraft together with interest and profit.

II. Operating Leases If a lease is not a finance lease, it is an operating lease. An operating lease may be a dry or a wet lease, although, it may be argued that, given that the wet lessor retain physical possession of the aircraft under a wet lease, a wet lease is not a lease at all. See § III International Law Conventions and entry “Aircraft Financing (Dry and Wet Leasing).” It is common practice for a lessee to sign an acceptance certificate upon delivery of the aircraft to it under a lease, and for the lease to provide that, upon signing and delivering such acceptance certificate, all risk of loss passes to the lessee for the duration of the lease period and the lessee waives any and all warranties, express or implied, to which it may be entitled in respect of the aircraft by law or contract, and unconditionally and irrevocably accepts delivery of the aircraft. Such practice was upheld by the English Court of Appeal in Olympic Airlines SA (in special liquidation) v. ACG Acquisition XX LLC [2013] EWCA Civ 369. However, the lessor retains the residual value risk of the aircraft provided that the lessee is in compliance with all its lease obligations. Thus, the lessee will be liable to the lessor for any diminution in value of the aircraft as a result of breach by it of its lease obligations but not for any market downturn in the value of the aircraft and similar aircraft generally. In addition to periodic, typically monthly, payment of rent, many, if not most, lessees will also have to pay a security deposit to the lessor, in most cases equivalent to a number of months’ rent, as security for the performance by it of its lease obligations, as well as maintenance reserves, as security for the performance by its of its scheduled maintenance obligations under the lease. The security deposit may be refunded upon redelivery of the aircraft to the lessor at the end of the leasing period and the maintenance reserves may be refunded upon satisfactory performance of the scheduled maintenance. To protect such amount from the lessee’s liquidator upon a bankruptcy, the lessor should provide for a grant by the lessee of a security interest to it thereover and ensure donal patrick hanley

such security interest is perfected so as to be enforceable against third parties, including the liquidator. Alternatively, the security deposit and maintenance reserves may be described as a non‑refundable commitment fee and additional rent, respectively, with a separate obligation to make equivalent payments, but not refunds, to the lessee upon the occurrence of the stated events. The purpose, of course, is to avoid a claim by the liquidator. Sometimes, a lessor will accept, instead of cash, a standby letter of credit issued by a bank acceptable to it. Maintenance reserves are typically paid in respect of the airframe, the engines, and their life limited parts, the auxiliary power unit, the landing gear, and, where relevant, the propellers. Even for those lessees not paying maintenance reserves, they will have to make a maintenance contribution to the lessor at the end of the lease in respect of those components that it is not returning fresh from an overhaul as required by the lease and the lessor should have those funds available to compensate the next lessee of the aircraft for not receiving those components fresh from such overhaul. Prior to redelivery of the aircraft to the lessor, the lessee, having exclusive possession, accepts all operational risk in respect of the aircraft and must maintain hull and liability insurances as required by the lease and applicable regulations.

III. International Law Conventions There are three main international law conventions dealing, inter alia, with the leasing of aircraft, the Convention for the Unification of Certain Rules Relating to the Precautionary Attachment of Aircraft done at Rome on 29 May 1933 (the Rome Convention), the Convention on the International Recognition of Rights in Aircraft done at Geneva on 19 June 1948 (the Geneva Convention), and the Convention on International Interests in Mobile Equipment and the Protocol thereto on Matters specific to Aircraft Equipment both done at Cape Town on 16 November 2001 (together, the Cape Town Convention). The Rome Convention exempts from precautionary attachment, meaning any act for the benefit of a creditor, owner, or lienholder, where the claimant cannot invoke

aircraft financing (finance and operating leasing)  73 a prior judgment and execution, or where the applicable law gives the creditor the right of detention, subject to certain exceptions: ●

●

●

aircraft assigned exclusively to a government service; aircraft actually put in service on a regular line of public transportation and indispensable reserve aircraft; and any other aircraft assigned to transportation of persons or property for hire, when it is ready to depart for such transportation.

Thus, where the Rome Convention applies, a lessor cannot exercise any remedy of precautionary attachment or ex parte detention of an aircraft if one or more of the above exemptions applies. The precise interpretation of these exemptions is somewhat unclear and the Rome Convention only remains in force in nine States. The Geneva Convention is a conflict of laws treaty providing for recognition by States party thereto of: ● ●

●

●

rights of property in aircraft; rights to acquire aircraft by purchase coupled with possession of the aircraft; rights to possession of aircraft under leases of six months or more; and mortgages, hypotheques, and similar rights in aircraft that are contractually created as security for payment of indebtedness.

provided that such rights have been constituted in accordance with the law of the State of registration of the aircraft at the time of their creation and are regularly recorded in a public record of such State. It is remarkable that, in the case of leases, whether finance or operating leases, it is the lessee’s rather than the lessor’s interest that is protected. The Cape Town Convention is also a private international law convention but goes beyond being a mere conflicts of laws treaty, creating a sui generis international interest, ranking in priority by date of registration on the electronic international registry provided for thereunder, in qualifying aircraft objects. The international interest includes an interest: ●

granted by the chargor under a security agreement;

●

●

●

vested in a person who is the conditional seller under a title reservation agreement; vested in a person who is the lessor under a leasing agreement; or of a purchaser under a contract of sale.

where, at the time of the conclusion of the agreement creating or providing for the international interest, the chargor, conditional buyer, lessee, or seller, as appropriate, is situated in a contracting State, or, with respect only to a qualifying aircraft object which is an airframe or helicopter, but not an aircraft engine, the aircraft object is registered on the aircraft register of a contracting State. The Cape Town Convention does not distinguish between finance and operating leases and, unlike the Geneva Convention, does not protect the interests of lessees. It does, however, extend only to dry, not wet leases, since it defines a leasing agreement for the purposes of the Cape Town Convention as: an agreement by which one person (the lessor) grants a right to possession or control of an object (with or without an option to purchase) to another person (the lessee) in return for a rental or other payment.

Qualifying aircraft objects, excluding those used in military, customs, or police services, include: ●

●

●

airframes type certified by the competent aviation authority to transport (1) at least eight persons, including crew; or (2) goods in excess of 2,750 kilograms; aircraft engines (1) in the case of jet propulsion aircraft engines, having at least 1,750 lbs. of thrust or equivalent; and (2) in the case of turbine-powered or pistonpowered aircraft engines, have at least 550 rated takeoff shaft horsepower or equivalent; and helicopters type certified by the competent aviation authority to transport (1) at least five persons, including crew; or (2) goods in excess of 450 kilograms.

The Cape Town Convention provides for contracting States to choose to apply or to disapply provisions dealing with such matters as remedies upon insolvency and otherwise as well as recognition of the parties’ choice of law, dispute resolution, and meaning of donal patrick hanley

74  elgar concise encyclopedia of aviation law default, and, thus, it is important to have regard to the relevant declarations made by contracting States. For qualifying aircraft objects, with respect to rights or interests covered by the Cape Town Convention, the Rome Convention, unless otherwise stated in the relevant declaration, the Geneva Convention, and the UNIDROIT Convention on International Financial Leasing done at Ottawa on 28 May 1988 shall, for States party thereto, all be superseded by the Cape Town Convention. One of the remedies under the Cape Town Convention that a State may adopt in its declaration is the international deregistration request and export authorization (IDERA), a sui generis authorization granted by a lessee to enable a lessor to deregister and to export the aircraft without its further consent upon the occurrence of an agreed event of default under the lease. Even with successful repossession of the aircraft and all its records by a lessor, placing the aircraft in revenue service with another operator had been hampered in some jurisdictions previously by the refusal of the aviation authority of the State of registration to deregister the aircraft without the lessee’s consent coupled with the ban on multiple aircraft registrations under Article 18 of the Convention on Civil Aviation done at Chicago on 7 December 1944 (the Chicago Convention). Another potential treaty-based tool for lessors to avoid the risk of being unable to deregister an aircraft from a lessee’s State of registration is provided for in a 1980 amendment to the Chicago Convention, Article 83 bis, which provides that, when an aircraft registered in a contracting State is operated pursuant to a lease or similar arrangement by an operator with its principal place of business in another State, the State of registration may, by agreement with such other State, transfer to it all or part of its functions and duties as State of registration in respect of that aircraft under Articles 12 (rules of the air), 30 (aircraft radio equipment), 31 (certificates of airworthiness), and 32(a) (licenses of personnel), and the State

donal patrick hanley

of registration shall be relieved of responsibility in respect of the functions and duties transferred pursuant to an agreement drawn up between these States. Thus, if both States agree, the State of the operator may assume safety oversight responsibility in whole or in part while the aircraft remains registered in the State of the lessor. The Cape Town Convention has contributed greatly to the growth of aircraft leasing and financing as it provides confidence to lessors and financiers that States thereto will respect their legal rights and now has an established place in international air law. Donal Patrick Hanley

References Aviation Working Group. Available at: http:// www​.awg​.aero/, accessed 26 August 2023. Bunker D H, International Aircraft Financing (2 volumes, 3rd edition updated by Hanley D P, International Air Transport Association, 2023). Cape Town Convention Academic Project. Available at: https://ctcap​ .org/, accessed 26 August 2023. Cape Town Convention Journal. Available at: https://ctcjournal​ .net, accessed 26 August 2023. Correia V and Grigorieff C-I (co-editors), Le droit du financement des aéronefs (Bruylant, 2017). Global Aircraft Trading System. Available at: https://e​-gats​.aero/, accessed 26 August 2023. Goode R, Official Commentary on the Convention on International Interests in Mobile Equipment and the Protocol Thereto on Matters Specific to Aircraft Equipment (5th edition, Unidroit, 2022). Hanley D P, Aircraft Operating Leasing, A Legal and Practical Analysis in the Context of Public and Private International Air Law (3rd edition, Wolters Kluwer, 2021). International Registry of Mobile Assets. Available at: https://www​.int​erna​tion​alre​ gistry​.aero, accessed 26 August 2023. Murphy R, Aircraft Financing (5th edition, Bloomsbury, 2022).

22. Aircraft Financing (Purchase of Aircraft)

by the seller should be replaced by nominees of the purchaser. The corporate entity may be structured as a special purpose entity whereby it holds the aircraft as its sole asset and has no liabilities whatsoever other than its obligations as seller under the purchase agreement. There is no change in the legal owner of the aircraft, which both before and after transfer remains the same corporate entity. In the case of a trust, the aircraft is owned by a trustee who holds the aircraft in trust for the benefit of the seller on the terms set out in a trust agreement between them. As with the case of corporate ownership, there is no change in the legal owner of the aircraft, which both before and after transfer remains the trustee. Rather, the beneficial interest of the seller under the trust agreement is transferred to the purchaser such that, from the time of the transfer, the trustee holds the aircraft for the benefit of the purchaser rather than the seller. For new aircraft, the airframe manufacturer and the engine manufacturer will grant certain warranties with respect to the new airframe and engines to the purchaser pursuant to one or more warranty agreements. For used aircraft, for any remaining warranties, these should be assigned, with the consent of the manufacturers, where required, by the seller to the purchase pursuant to one or more warranty assignment agreements. Where the aircraft being sold is subject to a lease in favor of a lessee who is granted quiet enjoyment of the aircraft pursuant to its terms, in addition to the transfer of title to the aircraft itself, the issue of the transfer of the lessor’s rights and obligations under the lease must be dealt with. Most such leases will be stated to be governed either by the laws of England and Wales or by the laws of the State of New York. In either case, a tripartite agreement will be required, although the mechanism is different in either case. For leases governed by the laws of England and Wales, a novation agreement will be entered into among the purchaser, the seller, and the lessee of the aircraft. The leasing of the aircraft by the seller to the lessee under the lease comes to an end and is replaced, with effect from the time of transfer, by a new lease by the purchaser to the lessee mutatis mutandis on the same terms of the old one. For leases governed by the laws of the State of New York, a lease assignment, assumption, and amendment agreement will be entered

I. Purchasing an Aircraft The buyer of an aircraft may choose to buy an aircraft from a seller using its own resources or by using one more form of financing from a creditor. To buy an aircraft, a purchaser will usually enter into a purchase agreement with the seller setting out the terms of the purchase and everything which is required to be done in order for the seller to transfer title to the aircraft to the buyer. For new aircraft, the form of purchase agreement will be that of the manufacturer, and for used aircraft it will be that of the seller, with the latter typically being more negotiable than the former. Once the conditions set out in the purchase agreement have been satisfied or waived as appropriate, title to the aircraft is then transferred by the seller to the buyer and this may be achieved pursuant to one or more legal devices. The most straightforward device is transfer of title by transfer of physical possession to the aircraft together with a bill of sale in respect of the aircraft executed by the seller. In States that have an owner-based rather than an operator-based system of aircraft registration under the Chicago Convention on international civil aviation (1944), details of such bill of sale may need to be registered with the relevant aviation authority of the State of registration in its required form. There may be one bill of sale in respect of the aircraft as a whole or there may be separate bills of sale in respect of the airframe and each engine, but, together, they should convey title not only to the aircraft as a whole, but also to any temporarily removed parts and all documentation relating to the aircraft and all its parts. Alternatives to using a bill of sale include transfer of corporate ownership and transfer of beneficial interest under a trust. In the case of corporate ownership, the aircraft is owned by a corporate entity and ownership of that corporate entity is transferred by the seller to the purchaser, thus passing effective control of the aircraft to the purchaser. In addition to the transfer of the shares of the corporate entity from the seller to the purchaser, the directors of the corporate entity appointed 75

76  elgar concise encyclopedia of aviation law into among the purchaser, the seller, and the lessee of the aircraft. The leasing of the aircraft under the lease remains in place but the rights of the seller are assigned to the purchaser, which assumes the obligations of the seller, and the lessee releases the seller from its obligations thereunder. To ease the documentary burden involved, especially for lessees, in transferring interests in aircraft leases, the Global Aircraft Trading Scheme was developed by the Aviation Working Group, which represents the largest commercial aircraft and aircraft engine manufacturers, lessors, and financiers, as a voluntary electronic system of using transfers of interests in trusts such that bills of sale and novation agreements or lease assignment, assumption, and amendment agreements are not required, with the voluminous documentation that they entail, with any necessary lease amendments being replaced instead with a system of notifications to the lessee in accordance with the lease provisions. Aircraft may also be purchased on a sale and lease back basis where the purchaser acquires title to the aircraft from the operator of an aircraft pursuant to a purchase agreement, but does not immediately take physical possession of the aircraft, instead immediately leasing the aircraft back to the seller pursuant to a separate but related lease agreement. This enables an aircraft operator to retain possession of an aircraft but to raise funds by way of selling its ownership interest and undertaking, instead, lease obligations. A sale and lease back arrangement may also be made for new aircraft where the seller has entered into a purchase agreement with a manufacturer and sells its right to acquire title to an aircraft thereunder to a purchaser, with the purchaser taking title to the aircraft on the delivery date and immediately leasing the aircraft to the seller pursuant to a related lease agreement.

II. Financing the Purchase of an Aircraft The purchaser may pay cash for an aircraft from its own equity or may borrow money on an unsecured basis from a lender in order to do so. To reduce its cost of acquisition, it may choose to borrow on a secured basis granting security over the aircraft in favor of its lender. For new aircraft, the manufacturer will require staged pre-delivery payments to be donal patrick hanley

made by the purchaser, and the purchaser may opt to avail of pre-delivery financing in order to fund such payments. Such pre-delivery financing is repaid in full on delivery of the aircraft. For secured lending, the purchaser may choose to enter into a loan, or loan facility, agreement with a bank or syndicate of banks. Alternatively, it may choose to issue bonds, which are then bought by investors. Specialized forms of bond issuance include securitizations, which are popular with aircraft lessors, and equipment trust certificates, which are popular with airlines. Export credit financing may be available from the country of the manufacturer of new aircraft in order to encourage exports. Such export credit financing typically involves a State guarantee in favor of the purchaser’s commercial lenders, thus reducing their credit risk and consequently enabling them to charge a lower rate of interest. Under the terms of the Aircraft Sector Understanding of the Organisation for Economic Co-operation and Development, there are minimum charges that must be made in return for such guarantee, which minimum charge may be lowered where the aircraft operator is based in a Cape Town Convention jurisdiction and has made the so-called qualifying declarations, or more creditor-friendly elections, thereunder. See § III International Law Conventions below. Whatever form of financing is chosen, the lenders will be concerned to ensure that they do not lend too high a loan-to-value ratio in respect of the aircraft, especially where they lend on a basis where their recourse is limited to their security over the asset with no recourse to the borrower for any shortfall, and also to ensure that they can swiftly enforce their security over the aircraft in the event of a default by the borrower. The primary form of security for a lender is a mortgage over the aircraft, together with an assignment by way of security of the benefits of any airframe and engine warranties. Where the borrower is an aircraft lessor, the lenders will also want an assignment by way of security over the lessor’s rights, but not its obligations, under the lease agreement between the lessor and the airline operator lessee. The mortgage should be perfected as required under applicable laws to ensure its enforceability. The English High Court in PK Air Finance US Inc v. Blue Sky Two Limited

aircraft financing (purchase of aircraft)  77 and others [2010] EWHC 631 (Comm) at 201 that an English law mortgage over aircraft registered in Armenia was not enforceable as the English governing law required application of the lex situs rule. Thus, for an aircraft located in the Netherlands at the time of the creation of the mortgage, English law looked to Dutch law but only to Dutch domestic law, and not to rules of Dutch private international law. Beatson J held: In the case of a transfer of title to tangible moveables, such as the aircraft in this case, the reference to the lex situs is to the domestic law of the place where the aircraft are situated on the relevant date, and not to its entire law including its choice of law rules; that is the doctrine of renvoi does not apply.

As the mortgage was not validly constituted under Dutch domestic law, the English High Court refused to enforce it. Since the adoption by the United Kingdom of the Cape Town Convention, this situation should not recur so long as the mortgage is registered as an international interest on the international registry provided for thereunder. See § III International Law Conventions below. In addition to, or in place of a mortgage, lenders may therefore also seek additional security by use of a finance lease. See entry Aircraft Financing (Finance and Operating Leasing). Lenders may further manage their risk by having the borrower place ownership of the aircraft into a special purpose company, incorporated in a jurisdiction in whose judicial system the lenders have confidence, and whose business is limited strictly to holding the aircraft as its sole asset and its debt to the lenders as its sole liability. The borrower grants a pledge of its shares in favor of the lenders, who can then, in addition to or as an alternative to seeking to enforce the mortgage upon a default, enforce the pledge of shares, thereby gaining effective control of the aircraft through taking control of its owner.

III. International Law Conventions There are two main international law conventions dealing, inter alia, with the purchase of aircraft, the Convention on the International Recognition of Rights in Aircraft done at Geneva on 19 June 1948 (the

Geneva Convention) and the Convention on International Interests in Mobile Equipment and the Protocol thereto on Matters specific to Aircraft Equipment both done at Cape Town on 16 November 2001 (together, the Cape Town Convention). The Geneva Convention is a conflict of laws treaty providing for recognition by States party thereto of: ● ●

●

●

rights of property in aircraft; rights to acquire aircraft by purchase coupled with possession of the aircraft; rights to possession of aircraft under leases of six months or more; and mortgages, hypotheques, and similar rights in aircraft which are contractually created as security for payment of an indebtedness.

provided that such rights have been constituted in accordance with the law of the State of registration at the time of their creation and are regularly recorded in a public record of such State. It is remarkable that, in the case of leases (whether finance or operating leases), it is the lessee’s rather than the lessor’s interest that is protected. The Cape Town Convention is also a private international law convention but goes beyond being a mere conflicts of laws treaty, creating a sui generis international interest, ranking in priority by date of registration on the electronic international registry provided for thereunder, in qualifying aircraft objects. The international interest includes an interest: ●

●

●

●

granted by the chargor under a security agreement; vested in a person who is the conditional seller under a title reservation agreement; vested in a person who is the lessor under a leasing agreement; or of a purchaser under a contract of sale.

where, at the time of the conclusion of the agreement creating or providing for the international interest, the chargor, conditional buyer, lessee, or seller, as appropriate, is situated in a contracting State, or, with respect only to a qualifying aircraft object that is an airframe or helicopter, but not an aircraft engine, the aircraft object is registered on the aircraft register of a contracting State. The Cape Town Convention does not distinguish donal patrick hanley

78  elgar concise encyclopedia of aviation law between finance and operating leases and, unlike the Geneva Convention, does not protect the interests of lessees. Qualifying aircraft objects (excluding those used in military, customs, or police services) include: ●

●

●

airframes type certified by the competent aviation authority to transport (1) at least eight persons, including crew; or (2) goods in excess of 2,750 kilograms; aircraft engines (1) in the case of jet propulsion aircraft engines, having at least 1,750 lbs. of thrust or equivalent; and (2) in the case of turbine-powered or pistonpowered aircraft engines, have at least 550 rated takeoff shaft horsepower or equivalent; and helicopters type certified by the competent aviation authority to transport (1) at least five persons, including crew; or (2) goods in excess of 450 kilograms.

The Cape Town Convention provides for contracting States to choose to apply or to disapply provisions dealing with such matters as remedies upon insolvency and otherwise as well as recognition of the parties’ choice of law, dispute resolution, and meaning of default, and, thus, it is important to have regard to the relevant declarations made by contracting States. For qualifying aircraft objects, with respect to rights or interests covered by the Cape Town Convention, the Geneva Convention shall,

donal patrick hanley

for States party thereto, be superseded by the Cape Town Convention. Donal Patrick Hanley

References Aviation Working Group. Available at: http:// www​.awg​.aero/, accessed 26 August 2023. Bunker D H, International Aircraft Financing (2 volumes, 3rd edition updated by Hanley D P, International Air Transport Association, 2023). Cape Town Convention Academic Project. Available at: https://ctcap​ .org/, accessed 26 August 2023. Cape Town Convention Journal. Available at:  https://ctcjournal​ .net, accessed 26 August 2023. Global Aircraft Trading System. Available at: https://e​-gats​.aero/, accessed 26 August 2023. Goode R, Official Commentary on the Convention on International Interests in Mobile Equipment and the Protocol Thereto on Matters Specific to Aircraft Equipment (5th edition, Unidroit, 2022). Hanley D P, Aircraft Operating Leasing, A Legal and Practical Analysis in the Context of Public and Private International Air Law (3rd edition, Wolters Kluwer, 2021). International Registry of Mobile Assets. Available at: https://www​.int​erna​tion​alre​ gistry​.aero, accessed 26 August 2023. Murphy R, Aircraft Financing (5th edition, Bloomsbury, 2022).

23. Aircraft Ownership and Registration

While aircraft operation turns on nationality, so too does eligibility for registration turn on nationality. In the United States, as an example, an aircraft’s eligibility for US registration turns on the nationality of the owner (individual or corporate). Stated otherwise, US regulators will register an aircraft only if it is not registered in another State and it is owned by:

I. Definition The purchase and sale or, more often, lease or financing, of aircraft involves multiparty, multi-jurisdictional transactions that implicate a wide range of legal issues, from taxation to property to contract (warranty) law. This is so whether the airplane at the center of a transaction is a “general” aircraft (“GA”) fully owned and operated by a single person or entity for recreational, private, and non-commercial use; an aircraft partially acquired by fractional stakeholders; or a modern jetliner owned by a multinational corporation and serviced by a full crew and serviced by a staff of mechanics, repairman, and overhaulers for us on commercial passenger and cargo flights. The ownership and registration of any aircraft is complicated by the fact that airplanes are mobile assets. (Russia’s seizure of hundreds of commercial airplanes in retaliation for global sanctions imposed against it for its invasion of Ukraine in 2022 aptly illustrates the vulnerability of securing an aircraft as an asset.) Consequently, the need for courts, regulators, and creditors around the world to align with respect to the possession, alienability, and whereabouts of aircraft is critically important. In the foregoing context, airplanes of nearly every type and category, as distinct from the engines, avionics, and other components of an airplane, must be registered in accordance with the provisions of the Convention on International Civil Aviation of 1944 (henceforth, the “Chicago Convention”) pursuant to which owners of civil aircraft must register their aircraft in a register of a State, following the procedures of that State. The relationship between nationality and registration are universally important. That is, in many if not all States, registration is a legal pre-condition for the operation of the aircraft. For example, an aircraft registered with the Japanese Civil Aviation Bureau is considered to have Japanese nationality, while aircraft without a nationality cannot be operated in Japan. Likewise, in the United States, all civil aircraft operating therein are and must be registered with the Federal Aviation Administration—Aircraft Registration Branch (“FAA”).

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a US citizen as defined in 14 C.F.R. § 47.2; a resident alien (foreign individual lawfully admitted for permanent US residence); a US governmental unit or subdivision; or a non-citizen corporation lawfully organized and doing business under the laws of the United States or one of the States as long as the aircraft is based and primarily used in the United States (i.e., 60% of all flight hours must be from flights starting and ending within the United States).

If the qualifications for aircraft ownership and recordation are met, applicants must then complete a specific application and follow documentation procedures for registration. In the United States, for example, aircraft registration involves advising central authorities with a formal description of an aircraft, its registered owner, and its “airworthiness.” This is also the procedure in numerous other jurisdictions, including Australia, Belgium, Brazil, Germany, Hong Kong, New Zealand, and Singapore. Once satisfied that they have the proper information and supporting documentation about the aircraft for which registration is sought, aviation authorities around the world then generally assign a serial number prefix to the airplane at issue. Aircraft registration numbers, in turn, are recorded in an online registry, which shows detailed information about the airplane. (For a US example see “Aircraft Inquiry,” https://registry​.faa​.gov​/ aircraftinquiry/.) Unique letter prefixes correspond to the nation in which an aircraft is registered. So, for example, N in the United States (e.g., Aircraft N123AA), I for Italy, G-UA for South Africa, VH for Australia, etc. In addition to serving an identifying function, an aircraft’s registration prefix also signals to creditors the stability, or not, of the national financing and 79

80  elgar concise encyclopedia of aviation law tracking system in which an aircraft’s title exists. An N-registration is closely associated in the minds of creditors with the stable legal system and financial apparatus in the United States. In addition to aircraft registration, States offer myriad different regimes for recording other indicia of aircraft ownership, including mortgages, leases, and other security instruments. For example, only aircraft mortgages can be registered in the Register of Mortgages maintained by the Isle of Man Aircraft Registry. Aircraft mortgages are not registered on the Australian Civil Aircraft Register, by comparison. Meanwhile, aircraft leases cannot be registered in Japan, Bermuda has no register of aircraft leases, and aircraft leases can be registered in Spain for the purpose of obtaining a Spanish mark for the aircraft. The registration of security interests in Canada, meanwhile, is governed by provincial law and the approaches differ according to whether registration occurs in the common law provinces or in Quebec. Suffice it to say that the procedures to register an aircraft and otherwise demonstrate evidence of aircraft ownership have many common elements across the world, but also unique attributes that must be followed assiduously.

II. Cape Town Convention Under the auspices of the United Nations International Institute for the Unification of Private Law, nations from around the globe have produced a Convention that establishes an international legal regime for the creation, perfection, and priority of security, title retention, and leasing interests in such equipment. More specifically, in November 2001, a Convention governing these matters was adopted by 53 states, at Cape Town, South Africa (and thus is commonly referred to as the “Cape Town Convention”). (See International Registry of Mobile Assets at https://www​.int​erna​tion​alre​ gistry​.aero​/ir​-web/.) The Cape Town Convention is designed to address three types of equipment: aircraft equipment, railway rolling stock, and outer space assets. The benefits of which were touted in testimony before the US Senate Foreign Relations Committee: As a general matter, the Convention adopts the asset-based financing practices already widely

timothy ravich

used in the United States and weaves them into an international agreement. Specifically, the Convention establishes an “international interest” which is a secured credit or leasing interest with defined rights in a piece of equipment. These rights consist primarily of (1) the ability to repossess or sell or lease the equipment in case of default; and (2) the holding of a transparent finance priority in the equipment. Priority will be established when a creditor files, on a first-in-time basis, a notice of its security interest, in a new high-technology international registry. Once an international interest has been filed by a creditor and becomes searchable at the international registry, that creditor’s interest will have priority over all subsequent registered interests and all unregistered interests, with a few exceptions. The Federal Aviation Administration (FAA), which currently operates an aircraft registry, will serve as the authorized entry point into the International Registry.

The Cape Town Convention establishes the Civil Aviation Registry as the Authorizing Entry Point and recognizes the International Registry as an additional place for the filing of interests, including prospective interests, in certain airframes, helicopters, and aircraft engines. Furthermore, it establishes the right for owners of aircraft to grant an Irrevocable De-Registration and Export Request Authorization (IDERA) to a secured party. It reduces from 750 to 550 rated takeoff shaft horsepower the size threshold for aircraft engines eligible to be recorded as collateral in security instruments. What is more, pursuant to the Cape Town Convention, aircraft and aircraft engines eligible for international registry recording include airframes that are type certificated to transport: at least eight persons including crew; or goods in excess of 2,750 kilograms (6,050 pounds); helicopters that are type certificated to transport: at least five persons including crew; or goods in excess of 450 kilograms (990 pounds); jet propulsion aircraft engines with at least 1,750 pounds of thrust or its equivalent. In addition, turbinepowered or piston-powered aircraft engines with at least 550 rated takeoff horsepower or its equivalent are eligible for registration under the Cape Town Convention.

III. Recordation In tandem with the Cape Town Convention, the laws of individual States play a principal

aircraft ownership and registration  81 role in the legal ownership and registration of aircraft. In the United States, for example, the interplay of federal and State laws is as significant as a legal matter as it is challenging to navigate as a practical one. Specifically, the laws of each State determine the “priority” of interests in aircraft, though recordation with the federal government is a prerequisite of all State priority regimes ( Philko Aviation v. Shacket, 462 U.S. 406, 1983). According to the US Supreme Court in Philko Aviation, federal law provides that every aircraft transfer must be evidenced by an instrument, and every such instrument must be recorded before the rights of innocent third parties can be affected. Furthermore, because of these federal requirements, State laws permitting undocumented or unrecorded transfers are preempted, for there is a direct conflict between federal law and such State laws, and the federal law must prevail. The court noted, moreover: state law does not require any documentation whatsoever for a valid transfer of an aircraft to be effected. An oral sale is fully valid against third parties once the buyer takes possession of the plane. If the state law allowing this result were not preempted by § 503(c), then any buyer in possession would have absolutely no need or incentive to record his title with the FAA, and he could refuse to do so with impunity, and thereby prevent the “central clearing house” from providing “ready access” to information about his claim. This is not what Congress intended.

In this context, “[a]lthough state law determines priorities, all interest must be federally recorded before they can obtain whatever priority to which they are entitled under state law.” Consequently, practitioners representing sellers or buyers of aircraft in the United States must not understand federal and international aircraft registration schema, but also that of any applicable State. Importantly, many States are not signatories to the Cape Town Convention (e.g., Japan), and caution must be exercised in this respect.

IV. Model (Recreational) and Unmanned Aircraft As a final matter, alongside the registration and ownership laws and processes relating to traditional fixed-wing aircraft detailed above,

lawmakers around the world also are working on revamping, or in some cases creating entirely new regulatory registration schemes to account for the exponential increase in the ownership and use of uncrewed airplanes— formally and informally referred to as “drones,” unmanned aerial vehicles (“UAVs”) or unmanned aerial systems (“UASs”). In Europe, for example, not all drones must be registered. In any case, registration of drones is an exercise done State by State and owners and operators should consult the respective national aviation authorities: https://www​.easa ​ .europa ​ .eu ​ /domains ​ /civil​ -drones​/naa. In the United States, meanwhile, all drones must be registered, except those that weigh 0.5 pounds or less (less than 250 grams) and are flown exclusively under an Exception for Recreational Flyers. As such, traditional aircraft registration is required under 14 C.F.R. Part 47 for UAVs that weigh 55 pounds or more. Additionally, registration is required for UAVs owned by a trustee under a trust agreement, and/or when the owner uses a voting trust to meet US citizenship requirements (described above). Registration for UAVs, moreover, is available for drones that need N-number registration to operate outside the United States; when public recording is desired for a UA’s loan, lease, or ownership documents. Relatedly, registration is required for Government UA in that all aircraft owned by agencies, offices, or subdivisions of the United States (other than aircraft of the US Armed Forces), the States, the District of Columbia, or a territory or possession of the United States must be registered in accordance with 14 C.F.R. Part 47 or Part 48. To register a new UAV, i.e., one that came to the owner essentially new in-the-box from the manufacturer or retailer and has not been registered anywhere, or other UAV under 14 C.F.R. Part 47, an owner must provide the FAA with the following information: ●

a completed Aircraft Registration Application: An original Aircraft Registration Application, AC Form 8050-1 must be used. When a Limited Liability Corporation (LLC) is the applicant to register a UA it also must provide information regarding its organization, how management authority timothy ravich

82  elgar concise encyclopedia of aviation law

●

●

●

is held, and how it meets the definition of a US citizen for aircraft registration; a Notarized Affidavit that: a) Establishes the required description of the UA, including manufacturer or builders; model designation and serial number; class (i.e., airplanes, airship, rotorcraft, glider, hybrid lift, ornithopter); maximum takeoff weight, etc.; (b) establishes the ownership of the UA by the applicant; (c) establishes (by affidavit) that the UA isn’t registered in another country; an N-number to be assigned to the registered aircraft. If a special N-number was reserved in advance by the UA owner for this registration, this number will be assigned if it is entered on the forms in the indicated blanks. Otherwise, a random N-number will be assigned at no cost; a $5.00 registration fee by check or money order made payable to the Federal Aviation Administration. This fee is waived when the applicant is a federal, State, or local government office, agency, or institution.

FAA, Aircraft Registration (Unmanned Aircraft (UA), https://www​.faa​.gov​/licenses​ _certificates​/aircraft​_ certification​/aircraft​ _registry​/UA/): while registration for drones weighing more than 55 pounds is a paperbased process, registration is also available online for small UAS, that is drones weighing less than 55 pounds and 55 pounds at: https:// faadronezone​.faa​.gov/#/. Finally, effective 16 September 2023 all drone pilots required to register their drones

timothy ravich

must also operate their drone in accordance with the ‘Remote ID,” a technical capability required by law that drones have the ability to provide identification and location information that can be received by other parties. FAA, Remote Identification for Drone Pilots, https://www​. faa​.gov​/ uas​/getting​_ started​/ remote​_id​/drone​_pilots/. Timothy Ravich

References Aircraft Registration and Recordation Processes, available at https://www​.faa​.gov​ /licenses​_certificates​/aircraft​_certification​ /a i r c r a f t ​ _ r e g i s t r y ​ / m e d i a ​ /A i r c r a f t​ %20Registration​%20and​%20Recordation​ %20Processes​.pdf. Leo W. Nelson, An Overview of Registration, Recordation, Ownership, and Secured Interests of Aircraft under the Federal Aviation Act of 1958, 53 J. Air L. & Com. 933 (1988). National Business Aviation Association, Aircraft Registration & Transactions, available at https://nbaa​.org​/flight​-depar tment​-administration​/aircraft​-registration​ -transactions/. Sean D. Murphy, Cape Town Convention on Financing of High-Value, Mobile Equipment, 98 AM. J. INT’L L. 852, 852– 53 (2004). Timothy M. Ravich, Notice to Airmen: Florida’s Aircraft Mechanics’ Lien Statute, 75 U. Miami L. Rev. 1117 (2021). Timothy M. Ravich, Aircraft Lien Law, Florida Bar Journal, November/December 2020,  https://www​ . f loridabar​ . org​ / the​ -florida​-bar​-journal​/aircraft​-lien​-law/.

24. Aircrew

the crew to protect the safety of the aircraft, or the persons and property therein. There are also international bodies that aim to protect aircrew rights around the world, provide legal assistance and employment law information, such as the Association of Flight Attendants (“AFA”) and the Cabin Crew Union (“CCU”).

I. Introduction The term “aircrew” comprises the entire staff working on commercial flights, the staff responsible either for flying the aircraft (pilot, co-pilot, navigator) or for attending to the passengers (cabin crew). Research indicates that 3.6 million aircrew are employed by airlines, with the aviation industry generating 11.3 million direct jobs. Several jurisdictions regulate the professional activities of aircrew personnel, whether from an employment law or from a regulatory perspective. Training is mandatory for each and all aircrew positions since every member is responsible for the safety of passengers onboard an aircraft.

3. The Montreal Convention (1999) In addition to the Chicago Convention (1944) and Tokyo Convention (1963), the Montreal Convention (1999), which addresses the liabilities of air carriers, provides, in Article 30, that “if an action is brought against a servant or agent of the carrier arising out of damage to which the Convention relates, such servant or agent, if they prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under this Convention.”

II. International Law

III. Aircrew Regulators

1. Convention on International Civil Association – the Chicago Convention (1944) The International Civil Aviation Organization (ICAO) and David Crocker’s Dictionary of Aviation defines “aircrew” as “the pilot, navigator and other crew members of an aircraft.” Also, Article 32 provides that “pilot and other members of the operating crew of every aircraft engaged in international navigation shall be provided with certificate of competency and licenses issued or rendered valid by the State in which the aircraft is registered.” ICAO provides for guidelines on operational safety, including competence-based training and assessment, human performance, safety of passengers, management of aircrew fatigue, minimum requirements for cabin crew etc., in accordance with Annex 1 and its amendments to the Convention on International Civil Association – the Chicago Convention (1944), which applies standards and recommends practices that must be met by each State; otherwise, a notification to the Council is compulsory to report the impossibility of complying with such standards.1

For instance, in the United States, the Federal Aviation Administration (FAA) is the governmental branch responsible for regulating aircrew member requirements and licenses. In the European Union, such responsibility is vested in the European Union Aviation Safety Agency (EASA). In Brazil, it is the National Civil Aviation Agency (ANAC) that regulates aircrew member requirements and licenses. In the context of the foregoing, each State has its own requirements on the minimum amount of each essential aircrew category required for each type of flight and/or number of passengers onboard based on ICAO Annex 1 (as explained). Those requirements are usually supervised by a national aviation agency.

IV. Personnel Licensing – Annex 1 of ICAO Since there are no specific ICAO or international licenses, each State has its own set of requirements, training, licenses, and exams for each specific category of aircrew member, which must be aligned with Annex 1 of the Chicago Convention (1944). Foreign-registered licenses can be validated by contracting States based on bilateral and multilateral agreements or fulfillment of domestic law requirements, and there is also the possibility of converting a foreign license

2. Tokyo Convention (1963) Furthermore, the Tokyo Convention (1963) sets out the pilot’s responsibilities while onboard, authorizing measures to be taken by 83

84  elgar concise encyclopedia of aviation law observing the local regulation. In Australia, for example, for converting an international license, a foreign pilot must observe a few steps, summarized as follows: (1) obtain an aviation reference number; (2) show proficiency in English; (3) professional documentation to be translated into English; (4) certify the authenticity of the documentation; (5) obtain authorization from the overseas authority that issued the license; (6) do security checks and clearances; (7) conduct a medical check; and (8) submit the respective application form. In Europe, Annexes I to IV of Commission Regulation (EU) No. 1178/2011 of 25 November 2011 regulates the conversion of the civil aircrew licensing procedure. The European Union and the United States signed on 19 November 2020 new Annexes to the Agreement on Cooperation in the Regulation of Civil Aviation Safety (ASA), “expanding its areas of application to allow the conversion of pilot licences and to reduce duplication in the oversight of flight simulators.” Following Brexit, EASA aircrew licenses can no longer be accepted for license holders operating UK-registered aircraft once they are validated by the UK Civil Aviation Authority, and no conversion of an European license to UK license shall be recognized after 31 December 2022.

restrictions in air transportation, which period also saw the termination of employment agreements of airport staff with overworked and unpaid aircrew and staff. Thus, it is important to encourage quick labor negotiations in the airline industry since the adverse impacts to the community arising from aircrew and staff strikes are huge due to the importance of air public transportation for social mobility, economics, and tourism.

V. Relevant Labor Issues

VI. Brazilian Law

1. Strikes Before the 1990s, the airline industry saw many strikes, especially among US airlines, and negotiations of airline employee employment agreements have been gaining prominence. As research states: “For the 236 contracts that the major passenger airlines negotiated since 1978, available data suggest that the median time taken to negotiate contracts has risen substantially since 1990, although this varies among the different carriers. In addition, 75 percent of strikes occurred prior to 1990. By comparison, all presidential interventions and all identified non-strike work actions (such as sickouts or refusals to work overtime) occurred after 1990.” More recently, aircrew strikes in Europe (since June 2022) have impacted thousands of flights and passengers as a result of the sharp increase in the number of passengers after the liberalization of the COVID-19 pandemic

1. Overview Insofar as Brazil is concerned, the Brazilian Aeronautical Code (Law No. 7,565/86, as subsequently amended) contains, in Articles 156–173, general rules for: (1) crew composition – in Brazil, foreign crew members are allowed provided that the number does not exceed one-third of the flight attendants on board the same aircraft; (2) licenses and certificates that a crew must obtain must be in accordance with the specific regulation – ANAC’s Brazilian Civil Aviation Regulations (“RBAC”) numbers 121 (subparts M, N, O, P, and Q), 135 (subparts E, F, G, and H), and 117 (requirements for risk management of human fatigue); and (3) captain’s liabilities.

2. Technological Advances Following technological advances in the airline industry, unmanned aircraft systems (UAS) and autonomous aircraft have stood out in aircrew labor relations. ICAO’s Circular N. 328-AN/190 addressed such topic and stated: “Removing the pilot from the aircraft raises important technical and operational issues, the extent of which is being actively studied by the aviation community. Many of these issues will be identified in this circular. (…) The remotely located pilot with the fundamental responsibilities of pilot-in-command is a critical element in reaching this status. It is possible that States may be able to accommodate UA which are not remotely-piloted through use of special provisions or in segregated airspace; however, this accommodation is not equivalent to integration.”

2. Labor Law Developments in Brazil Furthermore, in 2017 the new “Aeronauts Law” – Law No. 13,475/2017 became effective, which regulates the activities to be performed by aircraft pilots, flight attendants,

neil montgomery, drielle amate matta, and larissa paganelli

aircrew  85 and flight mechanics. The changes introduced by the Aeronauts Law include limitation of flight hours and working hours, as well as an increase in hours of rest. These changes have prevented Brazilian airlines from flying longer international routes. As a result, foreign companies will be forced to provide such services and remuneration of Brazilian crew members will be limited. Finally, it was concluded that the new Aeronauts Law proposed measures for minimizing the impacts that lead to crew member fatigue, in accordance with RBAC 117 of ANAC. It is important to note that there is a Brazilian Aeronauts’ collective bargaining agreement contemplating additional labor rights and entitlements to crew members in Brazil, such as wage floor, mandatory annual salary adjustments, and daily meals. At the end of 2020, ANAC launched a program called “VOO SIMPLES,” which led to several measures to reduce red tape for flight crew and encourage the entry of new agents in the airline industry, such as: (1) pilot licenses will no longer have an expiration date; (2) it will be possible to take theoretical tests in 50 locations (instead of 13 current locations); (3) digital documents will be allowed, linked to improvements in the process of updating registration data with ANAC; and (4) for professionals who operate aircraft that require constant simulator training, the period for periodic training on this equipment will be extended from 12 to 24 months, reducing costs and increasing pilot availability. The training requirements for co-pilot qualification will be updated, along the lines of what is already applied by the FAA.

VII. Social and Governance in Labor Relations Finally, an increased concern for social policies applicable to aircrew has been noted as a result of the application of “ESG (Environmental, Social, Governance) principles.” The social element is a critical point for the aeronautical sector and labor issues, quality, and safety in the services provided are always a concern for the industry. Therefore, diversity and inclusion measures, especially those relative to more women, blacks, and transgender individuals have been demanded by the sector and society.

VIII. Conclusion In view of the above, aircrews play a fundamental role in the aviation industry and their rights and duties are fundamental to ensure the safety of daily operations. To achieve that goal, international standards and rules must be implemented locally and enforced by each State. Neil Montgomery, Drielle Amate Matta, and Larissa Paganelli

Note 1.

https://www​.icao​.int ​/safety​/airnavigation ​/pages​/ peltrgfaq​.aspx​#anchor08.

References ‘Aircrew – Flight Crew Licensing’ accessed on 08 August 2022. ‘Airport Planning Manual: Part 1: Master Planning’, International Civil Aviation Organization. 2nd ed. Montreal, 1987. (Doc. 9184 AN/902). ‘Convention for the Unification of Certain Rules for International Carriage by Air’ accessed on 08 August 2022. ‘Convention on International Civil Aviation’ < ht t ps://www​ . icao ​ . int ​ / publ ications ​ / Documents​/7300​_cons​.pdf> accessed on 22 March 2022. ‘Convention on Offences and Certain Other Acts Committed On Board Aircraft, Signed at Tokyo, on 14 September 1963 (Tokyo Convention)’ accessed on 22 March 2022. ‘Conversion of an EASA Flight Crewlicenceto a UK Part Equivalent Licence’ < https:// www​ . caa ​ . co ​ . uk ​ /commercial ​ - industry​ / pilot​-licences​/non​-uk​-licences​/conversion​ -of​ -an​ - easa​ -flight​ - crew​ -licence​ - to​ -a​ - uk​ -part​-equivalent​-licence/> accessed on 08 August 2022. ‘Converting an Overseas Flight Crew Licence’ accessed on 08 August 2022. Crocker, David. Dictionary of Aviation, 2nd ed. London: A&C, 2005.

neil montgomery, drielle amate matta, and larissa paganelli

86  elgar concise encyclopedia of aviation law ‘Employment’, Aviation Benefits Beyond .aspx​#anchor08> accessed on 08 August Borders  ‘Súmula n. 447 do TST’ 23 February 2022. accessed on 23 February 2022. accessed on 23 ‘Unmanned Aircraft Systems (UAS)’ accessed on 23 February 2022.

das Regras da Aviação Geral’ Eduardo Mariz, ‘Briefing: Beyond the EU, What Other Sustainable Taxonomies Do (Or Could) Include Aviation?’ (Ishka, 10 August 2022) Eduardo Mariz, ‘ESG Extra: Airports Become Climate Battlegrounds, Amsterdam to Cut Flights’ (Ishka, 11 July 2022) Francesca Street, ‘100  Years Ago: The First Scheduled International Passenger Flight Departed’ (CNN Travel, 26 August 2019)

ICAO, ‘Future of Aviation’ ICAO 41st Assembly Working Paper, ‘How Airports can Support the Decarbonization of the Aviation Ecosystem – A Holistic Approach’ (A41-WP/502). ICAO 41st Assembly Working Paper, ‘Fundamental Rights of Passengers at International Airports’ (A41-WP/442).

ajay kumar and saachi juneja

Klaus Schwab, ‘The Forth Industrial Revolution: What it Means, How to Respond’ (World Economic Forum, 14 January 2016) Maria Niestadt, ‘The Future of Regional Airports: Challenges and Opportunities’ (European Parliament, February 2021)

Marina Bylinsky, Airport Carbon Accreditation – Empowering Airports to Reduce Their Emissions, Chapter 4 Climate Change Mitigation: Technology and Operations, ICAO Environmental Report 2019 2019 Environmental Report (icao.int) Mirjam van den Boggard, ‘Technology and Innovation: Indispensable for the Airport of the Future’ (International Airport Review, 25 May 2021) Ruwantissa Abeyratne, Aviation in the Digital Age: Legal and Regulatory Aspects (1st edn, Springer 2020). ‘The World’s 10 Oldest Airports’ (Airport Technology, 23 January 2020)

29. Airport Ground Operations Ground handling is an integral part of airline operations. These services are essential both for the correct functioning of air transport and for the appropriate use of airport infrastructure. Airport ground operations are performed at airports by servicing entrepreneurs called ground handling agents. In principle, these operate on behalf of and for the benefit of air carriers: their aircraft, passengers, cargo, and crews. This handling may be subject to particular economic regulation to ensure non-discriminatory treatment of carriers and other service recipients as well as competition between these, and to ensure that selfhandling is offered. We are currently lacking a uniform, globally recognized definition of ground handling services as well as uniform regulations at the international level. The existing ICAO and OECD definitions are not the same, which hampers the unification of regulations. According to the ICAO definition laid out in SARPs (Annex 6 to the Convention on International Civil Aviation), these are “services necessary for an aircraft’s arrival at, and departure from, an airport, other than air traffic services.” Meanwhile, according to the OECD: “ground handling is generally understood to include services necessary for an aircraft’s arrival and departure from an airport, but excludes those provided by air traffic control.” Due to the differing perceptions of the operations and category of ground handling, as well as the different approaches to the industry’s economic development, ground handling may be subject to both general regulations regarding trade in services and more specialized regulations regarding aviation (air law). Council Directive 96/67/EC of 15 October 1996 on access to the ground handling market at European Union (EU) airports sets the legal framework for the performance of ground handling at EU airports. Member States were obligated to implement its provisions in their national legislation. This harmonization was meant to promote the opening up of the ground handling market. Directive 96/67/EC, and many national regulations that followed,

enumerates 11 categories of ground handling services. Although the services within particular categories were further divided, it is still difficult to unequivocally determine the scope of each category. Ground handling encompasses the following categories of services performed at airports for the benefit of air carriers and other aircraft users: (1) ground administration and supervision; (2) passenger handling; (3) baggage handling; (4) freight and mail handling; (5) ramp handling; (6) aircraft services; (7) fuel and oil handling; (8) aircraft maintenance; (9) flight operations and crew administration; (10) surface transport; (11) catering services. These categories resemble the catalog created by the International Air Transport Association (IATA). There are two ways of performing ground handling operations: for one’s own benefit and for the benefit of third parties. The former applies to situations where the airport user (air carrier) performs self-handling, i.e., performs ground handling services for themselves. This may be categorized as in-house service performance, i.e., within an organization, as opposed to outsourcing. Ground handling for the benefit of other entities is performed by an external entrepreneur that manages an airport, including an organizational unit appointed by the entrepreneur, but also the airport user (air carrier) themselves if they perform ground handling operations not for their own but for another air carrier’s benefit. This type of ground handling is based on a particular agreement, typically the Standard Ground Handling Agreement (SGHA) or the Standard Level Agreement (SLA), the models of which are available in IATA’s Airport Handling Manual (AHM). The Standard Ground Handling Agreement is amended every five years, which helps stabilize the legal relationships between contracting parties. The manager of a public-use airport is obligated to make available the equipment and space of the airport, on conditions that are not discriminatory and do not limit fair competition, to entities performing ground handling operations for the benefit of other users and to users handling their own flights. The manager of a public-use airport or other entity that administers the elements of a centralized infrastructure should manage this infrastructure in a way that makes it available for use by the airport manager, ground handling agents, and airport users.

103

104  elgar concise encyclopedia of aviation law Both entities that perform ground handling operations for the benefit of third parties and air carriers performing self-handling of aircraft, crew, passengers, luggage, freight, or mail have free access to the ground handling market. However, there may be limitations to the number of entities providing ground handling services. In Poland, for example, such limitations with regard to services provided to third parties may be introduced by the head of the Civil Aviation Authority at airports where in the year that preceded the introduction of the limitation the annual traffic was equal to or greater than 2 million passengers or 50,000 tons of freight, or by the airport manager at the remaining airports where airport management is to be optimized. Limitations to the number of air carriers performing selfhandling of aircraft, crews, passengers, luggage, freight, or mail may be introduced by the head of the Civil Aviation Authority at airports where in the year that preceded the introduction of the limitation the annual traffic was equal to or greater than 1 million passengers or 25,000 tons of freight, or by the airport manager at the remaining airports where airport management is to be optimized. Ground handling for the benefit of third parties requires approval by a public authority that is independent from the airport manager (typically, this will be the head of the Civil Aviation Authority). Entities approved for the performance of ground handling operations involving aircraft, freight, passengers, and their luggage are authorized to provide services at a particular airport for the benefit of air carriers and other aircraft users. The head of the Polish Civil Aviation Authority may, by way of an administrative decision ex officio or at the request of the manager of an airport with a limited area or capacity, limit the number of approvals for ground handling agents or the number of users performing selfhandling. In some cases, certificates will be required (e.g., for air carrier handling involving dangerous goods). EU Member States are free to decide whether this requirement concerns the entity performing ground handling for the benefit of third parties, the airport user performing selfhandling, or both. In other words, the basic procedural obligations of ground handling agents include, first and foremost, having a valid approval for business activity at public-use airports involving airport management or ground anna konert

handling of aircraft, freight, passengers, and their luggage, and, in the case of air carriers performing self-handling, having a valid license for conducting business involving the air transport of passengers, mail, and/ or freight for remuneration on conditions specified in the license. Moreover, separate accounts must be kept in relation to ground handling operations. Finally, there is a qualityrelated obligation: the agent must ensure an adequate level of services, insurance, safety, and protection of devices, aircraft, equipment, persons, and the environment, confirmed by a certificate issued by the appropriate Civil Aviation Authority. Anna Konert

References de Bournonville D., Groundhandling at European Airports. An Update Over the New Rules Proposed by the European Commission, The Aviation & Space Journal, April/June 2013, Year XII, no. 2, pp. 17–23. Deselaers W., Liberalisation of Ground Handling Services at Community Airports, Air & Space Law 1996, 21(6), pp. 260–266. Łuczak K., Reglamentacja wykonywania obsługi naziemnej w portach lotniczych, Katowice 2016. Łuczak K., Zarządzanie bezpieczeństwem przez agenta obsługi naziemnej, in: Łuczak K. (ed.): Zarządzanie bezpieczeństwem w lotnictwie cywilnym, Katowice 2016. Łuczak K., Świadczenie usług obsługi naziemnej w świetle dyrektywy 96/67/ WE oraz projektu rozporządzenia o świadczeniu usług naziemnych w portach Unii ‒ analiza prawnoporównawcza, in: Biskup K., Bukowski Z. (eds.): Prawne, administracyjne i ekonomiczne uwarunkowania działalności lotniczej w Polsce, Bydgoszcz 2014, pp. 135–147. Mazur P., Regulacyjne uwarunkowania świadczenia usług obsługi naziemnej w portach lotniczych w dobie dualizmu regulacji WTO i ICAO wobec postępującej liberalizacji sektora w Europie [unpublished doctoral dissertation], Lazarski University 2019. Schmidberger S., Bals L., Hartmann E., Jahns C., Ground Handling Services at European Hub Airports: Development of a Performance Measurement System for Benchmarking, International Journal of

airport ground operations  105 Production Economics 2009, 117(1), pp. 104–116. Tomova A., Trigna L., Novak Sedlackova A., Ground Handling Business at NonEuropean Biggest World Airports as a Problem of Market Structures, Business

Management and Education 2015, 13(2), pp. 321–335. Żylicz M., Prawo lotnicze. Komentarz, Wolters Kluwer, Warszawa 2016.

anna konert

30. Airport Managing Body I. Definition Since there is no uniform international definition of Airport Managing Body (AMB), EU Directive 2009/12 reflects, at least in part, the current definition: “airport managing body” means a body which, in conjunction with other activities or not as the case may be, has as its objective under national laws, regulations or contracts the administration and management of the airport or airport network infrastructures and the coordination and control of the activities of the different operators present in the airports or airport network concerned.

II. The Nature of the Rules Governing the Matter From the wording of the definition some elements emerge, which, upon closer analysis, reveal key aspects that characterize the subject matter, in particular the reference to national laws and to contracts, namely, to the domestic nature of a large part of the applicable legislation and the most common legal instruments for entrusting the management of the airport. The field of investigation does not find complete regulation either in public international law or in a set of rules harmonized at a macro-regional level, as in the case of the European Union. On the one hand, the Chicago Convention on International Civil Aviation (1944), henceforth also referred to as the Convention, offers only a few basic framework rules to some extent relevant for the present purposes, such as the fact that each airport of a contracting State open to public use by its national aircraft shall be open under uniform conditions, also in terms of charges, to the aircraft of all the other contracting States (Art. 15) and that each of the latter may designate the airports that can be used for international air services (Art. 68). In addition, technical requirements and minimum standards are dictated by the Annexes to the Convention, such as Annex 14 on Aerodromes and Annex 19 on Safety Management. On the other hand, European legislation focuses on compliance with competition

within the airport area, as attested by the Council Directive 96/67/EC of 15 October 1996 on access to the ground handling market at Community airports, as well as the mentioned Directive 2009/12/EC on airport charges. However, the EU institutions have taken action in relation to other aspects, although not yet through hard law instruments, such as the Communication Commission EC No. COM (2006) 819 final, 24 January 2007, entitled “An action plan for airport capacity, efficiency and safety in Europe.” This is the reason why the definition refers to the national laws: it is precisely within the scope of the latter that the ownership and management of airports have not yet been regulated at the EU level. Hence, attention will be paid to the main airport management models that have found greater diffusion, also in consideration of the three different macro categories into which the activities that can be entrusted to the AMB can be divided, i.e., the technical activities essential to the performance of transport services; such as flight assistance and runway maintenance, the commercial activities, unrelated to the air carrier’s performance, such as those concerning parking and catering; and the ground handling services, rather than to the detailed domestic rules, considering the specific peculiarities of each legal system. Among the activities indicated, there are some, such as those relating to safety, including limitation and control of obstacles on airport property, which, due to the technical nature that characterizes them, must be provided exclusively by the AMB, which, therefore, carries them out under a monopoly regime. However, as regards other services, especially ground handling services, the AMB can provide them directly, or, in turn, assign the performance of the same to third parties, through sub-concessions or contracts, in compliance with the principle of separation, at least accounting, of the management activities of the infrastructure from those of ground handling, expressly stated in Art. 4. of the Directive 96/67/EC.

III. The Evolution of the Figure and Role of the Airport Managing Body The 21st century witnessed an evolution, regulatory and at the same time technological,

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airport managing body  107 which has affected the law of air transport and air navigation, and which has led to the abandonment of the static conception of the airport, understood as a mere complex of structures, buildings, and assets, in favor of a dynamic conception. In this new perspective, the assets of the aeronautical state property are considered not only in themselves but also, and above all, as functionally connected to the performance of a public service. Therefore, they are relevant for the activity that can be carried out on them and with them, i.e., for their management, to the extent that the latter is closely connected with the air transport service. This new approach, which shifts attention from the aeronautical state property to the airport activity as a whole, involves the identification of new figures committed to the airport organization and, consequently, the emergence of various problematic profiles, connected with each other, concerning the identification of the subjects actually responsible for the management, the title of their liability, and the link between the respective obligations. In this perspective, the AMB is no longer entrusted with the exercise of mere coordination functions of the activities carried out in the airport, but it is assigned a much more important role, that of guarantor of both the correct functioning of the airport infrastructure and the quality of the services performed there, also in terms of continuity and safety, and, more generally, of the efficiency of the entire system. In a nutshell, the AMB is increasingly taking on a role that combines and integrates social responsibility and business.

IV. The Main Airport Management Models and the Airport Charter The different possible forms of airport management are due to a plurality of factors of a social, political, and economic nature. The choice that a State makes as to which of them to adopt for a specific airport is driven by at least four determinants: safety, security, efficiency, and economic sustainability. Furthermore, in this scenario, although the concepts of ownership and management of the airport property are to be kept distinct, they nonetheless remain closely interrelated, to the point, at times, that they interpenetrate,

without the possibility of being able to examine them in a truly separate manner. That said, there are two macro typologies of airport management, one based on public ownership and management, which, although increasingly less frequent, still exists in some States, and one based on the more or less marked participation of private entities. In the first, government direct control and management, in turn, can be exercised through a civil aviation administration or a ministerial department or through a specific body, whether governmental or in the form of a corporation with wholly public participation, endowed with a degree of financial and operational autonomy. In this case, public interest tends to prevail over profit considerations, albeit without forgetting the need to pursue best commercial practices. The second entails the involvement of private entities, by means, depending on the circumstance, of management contracts, leases, concessions, public-private partnerships (or “PPP”), transfers of minority ownership, and full private sector ownership and control. Clearly in this model the strategies and actions adopted, and the activities undertaken by the AMB, are driven more by a goal of economic efficiency, without, however, ever forgetting the interests of the community to which the airports are intended to respond. Whatever the model adopted, airport management can concern both a single airport and an airport system (understood as “two or more airports grouped together as serving the same city or conurbation,” as defined, lastly, by Art. 2, letter m, of the Council Regulation (EEC) No. 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, no longer in force and repealed by Regulation (EC) No. 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community), and an airport network (“a group of airports duly designated as such by the Member State and operated by the same import managing body,” as per Art. 2, para. 5, of Directive 2009/12/EC). The organizational structure of the airport is regulated by the charter of the latter, or by a similar document, that describes the various functions, activities, services, and areas entrusted to the responsibility of the airport entity and whose operability massimiliano musi

108  elgar concise encyclopedia of aviation law must be guaranteed. They can vary considerably depending on, inter alia, the type of traffic, the size of the infrastructure, and its geographical location, and they usually include aircraft handling and parking areas, passenger terminals, cargo and hangar facilities, and air traffic control and communications as well as, sometimes, meteorological services. The charter also defines the governing structure of the airport entity and, therefore, the presence or absence and the prerogatives and responsibilities of a general manager, a CEO, and a board of directors and the scheme of the decision-making chain, also indicating which subjects the management must ultimately report.

V. The Phenomenon of Privatization The progressive transformation of airports from mere transport infrastructures to true entrepreneurial realities has for some time been gradually bringing the world of airport management closer to that of entrepreneurship, through the multiplication of privatization experiences that began in the mid-1980s in the United Kingdom. Since then, it has been gaining ground in numerous States, albeit not immediately, but in stages. This development, even though criticized by some, highlights the essential nature of airport management, which is precisely that of a public service of general interest, and one that is also important for the maintenance of internal and external national security. Upon closer analysis, it emerges that it would be more correct to use the expression “private participation” rather than the term ‘privatization,” since, except in cases that are still quite rare in which the ownership of the airport infrastructure is placed entirely in the hands of a private entity (the so-called full privatization); the latter is more frequently involved in or is entirely entrusted with the management of the (predominantly) publicly owned airport (known as “partial privatization”). The increasingly evident success of privatization is attributed to multiple positive aspects it brings with it, among which we can mention that it increases competition in the relevant market; gives more space to entrepreneurial ideas, including innovative ones, which, on the one hand, allow development massimiliano musi

paths of the activities directed toward the efficiency and improvement of operations, maintenance, and customer service and, on the other, a depoliticization of the decisionmaking process; facilitates easier access to private capital and less dependence on tax levies; and shifts onto the shoulders of private entities the risks deriving both from the collection and allocation of the necessary capital investments and from the execution of operations. In essence, privatization, in its broadest semantic meaning, consists, in a defined reference context, in the entrustment to the private sector of all or part of the responsibilities, functions, control, management, and sometimes even ownership. It can take many forms and degrees, depending on the level of participation that is required of private operators: the most relevant ones are described below, in increasing order of private involvement. 1. Management Contracts The management and operation of the parking areas, the terminal facilities, or even the entire airport can be contracted out to private entities for a defined period, upon payment of a management fee, often made up of a fixed annual amount, to which is added a variable sum based on the achievement of certain performance levels, in terms of financial and operational efficiency. However, the determination of the development strategies of the airport remains the prerogative of the owner, who continues to establish the policies to be followed and to assume the risks deriving from capital investments. 2. Lease or Concession Agreements The public owner can entrust the full management, control, and development of the airport to a private entity through a lease or a concession agreement, which can be of short-, medium-, or long-term duration, upon payment of a fee, whose characteristics can vary considerably according to the specific case. In this way, although the lessee or the concessionaire is burdened with the overall responsibility for the growth of the airport, the owner would still be able to maintain a certain control, having established the basic conditions to be respected in the contract and in the relevant documentation.

airport managing body  109 3. Public-private Partnerships for Financing and Operation Public-private partnerships (PPPs) are agreements between public and private entities intended to combine the best capabilities of the two sectors, for the financing, design, construction, improvement, maintenance, and management of public facilities. In the airport field, various types of PPPs can be observed, which involve different degrees of risk, responsibility, and control for the airport owner, but which have as a common denominator of making the developer bear the economic risk deriving from the investment and from the management of the infrastructure while, however, offering a revenue stream that allows him to repay the costs incurred and obtain a profit. The main models of PPPs that can be observed in relation to airports are the following: ●

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Build Operate Transfer (BOT): the contractor builds a facility in compliance with the owner’s specifications and acquires the operating rights for a defined period of time, after which the facility is transferred to the owner; Build Transfer Operate (BTO): an agreement that differs from the BOT in that the transfer of the facility to the airport owner occurs immediately after the completion of its construction; Design Build Operate Transfer (DBOT): compared to the first two models described, the contractor also deals with the design of the facility; Design Build Operate Maintain (DBOM): is similar to the above project delivery methods, except that the airport owner always maintains ownership as well as an incisive role in supervising operations; Design Build Finance Operate (DBFO): the contractor is also required to finance the project; Lease Renovate Operate Transfer (LROP): an existing facility is entrusted for a certain period of time to a private entity in order to be renovated and operated, and then transferred again to the owner;

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Build Own Operate (BOO): is a project delivery method less frequently used, considering the reluctance of the public party to conclude an agreement of this type, in which there is, in substance, a complete privatization of the facility, which is financed, built, and operated by a contractor who retains ownership.

4. Sale of Minority Ownership or All Ownership and Control Under a trade sale or an IPO, a part of the shares or the entire share package of the airport is transferred to a private entity, which, therefore, acquires ownership as well as management.

VI. Concluding Remarks For some time, the airport management sector has been experiencing a period of marked changes and renewals, in an increasingly competitive and constantly evolving market. Therefore, AMBs are called to the difficult task of finding a balance between overcoming the traditional forms of management and the need to continue to respond to the primary needs of users, not forgetting the nature of public service, with strong political and social relevance, of the airport management. Massimiliano Musi

References Abeyratne, Ruwantissa, Law and Regulation of Aerodromes (Springer 2014). Comenale Pinto, Michele M., Francesco Morandi and Laura Masala (eds), Le gestioni aeroportuali. Privatizzazione del Sistema e sicurezza del trasporto aereo (Giuffré Editore 2005). Ernico, Sheri, Bruce Boudreau, Dan Reimer and Steve Van Beek, Considering and Evaluating Airport Privatization (National Academies Press 2012). Masutti, Anna, Il diritto aeronautico (3rd edn, Giappichelli Editore 2020) 51–69. Peeters, Maarten, ‘The European Commission’s Airport Package’ (2008) XXXIII(3) Air and Space Law 244–276. Peeters, Maarten, ‘Recent EU Legislative Action on Airports’ (2009) XXXIV(3) Air and Space Law 189–213.

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31. Airport Security Air transport is central to global economic development, it facilitates movement of goods, people, and mail between States. At the same time, it has always been an attractive target for terrorists and other criminals. Airports, the entryways into a State, are no exception despite being one of the most regulated and controlled public areas. Aviation security is a combination of measures and human and material resources in order to safeguard civil aviation against acts of unlawful interference (Annex 17 of the Convention on International Civil Aviation) by addressing the threats posed to the aviation industry and preventing acts of unlawful interference. Airport security refers to the methods and techniques used to protect those who use airports, including passengers, staff, and aircraft, from any harm, criminal activity, threats, or potential threats. The aim of airport security is to prevent any threats or potentially dangerous situations from arising or entering the country and to provide assurance to the traveling public that they can safely and securely move from country A to country B.

I. Legal Framework The cornerstone of civil aviation security is the International Civil Aviation Organization (ICAO) Annex 17 of the Chicago Convention, which provides the Standards and Recom­ mended Practices (SARPs) to safeguard international civil aviation against acts of unlawful interference. Annex 17 was first adopted in March 1974 and the current edition is the 12th edition of July 2022. Guidance material to assist Member States on how to apply Annex 17 is provided in the ICAO Aviation Security Manual (Doc 8973), which is a classified document, meaning that its contents are not accessible to the general public. Annex 17 and Doc 8973 are constantly being reviewed and amended commensurate with new evolving threats to the security of air transportation and technological developments that diminish and weaken the effectiveness of existing security measures. In addition, every ICAO contracting State has the duty and responsibility to have a national civil aviation security oversight system to create a security regime that

effectively prevents acts of unlawful interference without unduly impeding the growth of civil aviation, imposing excessive costs, or creating unnecessary operational inconveniences. The Aviation Security Oversight Manual (Doc 10047) provides guidance material to assist States in the establishment and management of a State’s national civil aviation security oversight system. During the late 1960s and early 1970s there were many terrorist attacks on airliners and airports. ICAO responded with three main Conventions dealing with unlawful acts against civil aviation. The 1969 Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention) was drafted to specifically deal with crimes on board aircraft, and particularly crimes that jeopardize the safety of the aircraft, passengers, and crew. The 1971 Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention) aimed at combatting the offense of hijacking, and the 1973 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (The Montreal Convention) broadened the scope of the Hague Convention to include the crime of sabotage. Even though the conventions focused on hijacking, sabotage, and criminal acts committed onboard aircraft, terrorists moved through airports to gain access to, embark on aircraft and carry out their attacks. A separate Protocol in 1988 extended the convention to specifically include crimes at international airports. As a result of a number of threats and attacks at international airports, the 1988 Montreal Protocol included offenses involving acts of violence at international airports. The Conventions established security measures appropriate to the threats and resulted in many ICAO recommendations for the enforcement of additional and stricter security measures at airports, many of which were adopted by a number of national civil aviation authorities. Driven in part by the 11 September 2001 attacks and the international community’s desire to review the effectiveness of existing aviation security conventions and address new and emerging threats to aviation, the 2010 Beijing Convention (Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation) and Beijing Protocol were adopted. These new treaties make it a criminal offense to, inter alia, use aircraft as a weapon and to transport via civil

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airport security  111 aircraft extraordinarily dangerous materials, such as biological, chemical, and nuclear weapons and related material, for illegal purposes. Clearly, it is not possible to eliminate all security risks at airports and therefore the goal is to reduce, as far as is practicable and reasonable, the possibility of a security breach and to reduce the negative consequences that may occur as a result. To this end, a Security Management System (SeMS) provides an entity with a framework of operating principles and guidance that enable it to enhance security performance by proactively managing risks, threats, and issues where there are gaps and vulnerabilities. An inherent part of a SeMS is a risk management system to assess risks and to then implement riskbased security measures.

II. Unlawful Interference There is no single universally accepted definition of aviation terrorism; however, many acts of terrorism are incorporated in the list of unlawful interference found in Annex 17, which are defined as, “acts or attempted acts such as to jeopardize the safety of civil aviation, including, but not limited to: ● ● ●

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unlawful seizure of aircraft; destruction of aircraft in service; hostage-taking on board aircraft or on aerodromes; forcible intrusion on board an aircraft, at an airport or on the premises of an aeronautical facility; introduction on board an aircraft or at an airport of a weapon or hazardous device or material intended for criminal purposes; use of an aircraft in service for the purpose of causing death, serious bodily injury, or serious damage to property or environment; and communication of false information such as to jeopardize the safety of an aircraft in flight or on the ground, of passengers, crew, ground personnel or the public, at an airport or on the premises of a civil aviation facility.”

The first terrorist airport attack took place in 1970 when three terrorists attacked El Al passengers in a bus at the Munich Airport, killing one passenger and wounding

another 11. Other attacks include, inter alia, the 1973 attack at the Rome Airport when five terrorists killed two people in the terminal lounge with weapons concealed in their luggage; the 1985 attacks at the ticketing counters at Rome’s Leonardo da Vinci Airport and Vienna’s Schwechat Airport, resulting in the death of a total of 16 people and the injury of another 105; the 1986 bombing at Seoul’s Kimpo Airport, killing five people and injuring 29; the 1996 ETA bomb exploding at Tarragona International Airport in Reus, Spain, wounding 35 persons. Recent attacks include the 2014 attack at the Jinnah International Airport, Karachi, by ten militants wearing Airport Security Force uniforms, resulting in the death of 36 persons, including the attackers and injuries to another 18; the 2015 explosion in the apron area of the Sabiha Gökçen International Airport, Turkey, killing a cleaner and injuring another; the 2016 Atatürk Airport attack, when gunmen armed with automatic weapons and explosive belts launched a simultaneous attack at the international terminal of Terminal 2, resulting in the death of the three attackers and 45 bystanders and injuring over 230 people; the 2016 coordinated attacks when two suicide bombs went off at Brussels Airport in Zaventem and another one at the metro station, resulting in the death of 35 people, including the three attackers and over 300 people being injured. The above cases of airport attacks illustrate that, despite security measures being in place, there are vulnerabilities and gaps resulting in security breaches and attacks at airports, airfield infrastructure, runways, terminals, aprons, and landside that includes parking lots and access roads. The airside is a restricted and controlled area, and it includes all areas that are accessible to aircraft, including runways, taxiways, and ramps, that can be accessed only by authorized personnel passing through security checkpoints and is therefore better protected. As the landside is generally accessible, it is the most vulnerable area and the more challenging to secure, which is mainly carried out by surveillance, screening, and monitoring. One of the greatest threats today is the use of improvised explosive devices (IEDs) to attack terminals, parking areas, and other openly accessible areas. sofia mateou and andreas mateou

112  elgar concise encyclopedia of aviation law After the 2016 Brussels Airport attack, many EU governments and national authorities increased their security measures landside at airports and other key locations. However, this may, in fact, result in shifting the target to a different area instead of securing it. As the Airports Council International (ACI)-Europe, noted, “the possible adoption of additional security measures such as checks on persons and goods entering airport landside spaces is likely not only to be disruptive but could actually create new security vulnerabilities by collecting passengers and airport visitors into spaces not designed for that purpose.” Airport security measures and controls need to be in place to effectively screen and secure cargo, mail, checked baggage, passengers, and hand luggage and to secure all access areas. Airfield operations should be tightly controlled and secure; however, terrorists and other criminals can potentially pass through airports with dangerous objects and weapons that kill, injure, and destroy airport infrastructure and aircraft in flight or on the ground. Initially, the main focus of security measures was designed to scan passengers with magnetometers, which use an electromagnetic field to detect metal objects such as concealed handguns, and to body search passengers exhibiting suspicious behavior to prevent them from getting on an aircraft carrying weapons or explosives. Passenger carry-on baggage was also scanned through X-ray machines. As a result of the increased security measures and screening, hijackings were increasingly replaced by acts of sabotage to aircraft with explosive devices placed in checked baggage, leading to the ICAO recommendations toward the end of 1990 that all hold luggage should be screened for explosive and dangerous devices. Additional security measures were imposed in the operational areas of airports, including security fences, controlled access gates, and increased surveillance by closed-circuit television. Despite the increased security measures, a vulnerability in the airport security system existed as the magnetometers could not detect plastic weapons or plastic explosives, something that was exploited by terrorists. On 22 December 2001 Richard Reid boarded American Airlines Flight 63 scheduled to fly from Paris to Miami with over 100 grams of the plastic explosives TATP and PETN concealed in the sofia mateou and andreas mateou

hollowed soles of his shoes. He sat near the window and attempted to light his shoes with a match. Crew members and passengers noticed and restrained him. He was arrested when the aircraft landed, pleaded guilty, and is serving a life sentence. As a result of this attempted terrorist attack, passengers are required to remove their shoes and put them through the X-ray machine when going through airport security screening. On 22 December 2009, a passenger onboard Northwest Airlines Flight 253 from Amsterdam to Detroit, Michigan, attempted to detonate plastic explosives that he had hidden in his underwear. He went through security screening but managed to board the aircraft with two high explosives, (again, PETN and TATP), which were to be detonated with a syringe containing other chemicals. Passengers and crew noticed his attempt to ignite the explosives and managed to restrain him. He too is serving a life sentence. Each terrorist innovation has added another security procedures, as illustrated by the security measure to screen passenger’s shoes. After the 11 September 2001 attacks, a number of security measures were created and enhanced. The ICAO strongly condemned the use of aircraft as weapons. ICAO was called on to establish a security audit program. Annex 17 was amended, and enhanced security measures were imposed regarding both hand baggage and checked baggage. Screening of aviation personnel and deployment of enhanced technology and X-ray equipment to detect metal items inside baggage or concealed in clothing was accelerated, and electronic detection systems were deployed to detect traces of explosive materials. In response to a foiled 2006 terrorist plot to bomb airlines using liquid explosives, restrictions were placed on the amount of liquids that passengers could carry onboard. The 2009 underwear bomb led to airports installing full-body scanners, which use light doses of radiation to scan through a passenger’s clothes in order to detect any hidden improvised explosive devices. In 2010, joint intelligence efforts prevented a terrorist attack attempting to sabotage airliners using bombs concealed in two printer ink cartridges. A similar attempt was prevented in 2012 with intelligence information that terrorists were attempting to conceal improvised bombs in laptops.

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III. Conclusion Using airports as a target for terrorist and other criminal activity is not new; however, despite the shift from a reactive to a more proactive airport security system, the aviation industry struggles to foresee and keep one step ahead of security threats. In addition to the traditional threats, new threats are continuously emerging, and criminals are increasingly devising improvised methods of attack and innovative ways of concealing weapons, explosives, and other objects used as weapons. In addition, the COVID-19 pandemic has presented additional challenges for airport security, such as observing physical distancing at airports, face masks that hinder the identification and profiling of passengers, longer queues at airport security checkpoints, and slower procedures. Effective security measures require clear and timely legislative solutions, uniformity, the commitment of all stakeholders, a positive safety culture, cooperation and sharing of available information and intelligence, layered screening measures, and the deployment of advanced technology, such as, e.g., nextgen body scanners and biometric technology. To ensure airport security measures are effective, a combination of technology and human involvement is necessary. Additionally, it’s important to balance security measures with

the growing number of passengers while maintaining a positive airport experience for passengers. Sofia Mateou and Andreas Mateou

References Dettmer, J. ‘Spotlight on Aviation Security Following Brussels Attacks’ (2016). Available at https://www​.voanews​.com​/a​ /spotlight​- on​-aviation​-security​-following​ -brussels​-attacks​/3250771​.html Accessed 5 April 2022. ICAO Annex 17, 11th ed 2020 which on 30 July 2020 supersedes previous editions. ICAO Aviation Security Manual (Doc 8973), 12th Edition, 2020. ICAO Aviation Security Oversight Manual (Doc 10047), 2nd Edition, 2021. Office of the Historian, Bureau of Public Affairs, US Department of State. ‘Significant Terrorist Incidents, 1961–2003: A Brief Chronology’ (2003). Available at https://irp​.fas​.org​/threat​/terror​_chron​.html Accessed 5 April 2022. Szymankiewicz, Ł. ‘Evolution of Aviation Terrorism – El Al Israeli Airlines, Case Study’. Journal of Strahategic Security, 15(1), 106–125. (2022). Available at https://www​.jstor​.org​/stable​/48652013 Accessed 1 April 2022.

sofia mateou and andreas mateou

32. Airports and Aerodromes I. Introduction

Ground handling may also be provided by third-party suppliers or self-handling airlines. The revenues of airport operators come primarily from aeronautical charges, which are paid by airlines for the use of airport infrastructure. These airport charges include landing, parking, as well as passenger service charges and should cover the total cost of providing the infrastructure. Government taxes are not airport charges. Airport operators may also generate non-aeronautical revenues, such as car parking fees or rents paid by retailers. Managing airport capacity is essential to ensure efficient access to airport infrastructure and services – in terms of the number of flights (runway capacity) and passengers (terminal capacity) that can be accommodated. Capacity may also be subject to regulatory limitations, for example, night curfews or noise restrictions. Airport slots are a way to manage airport capacity, especially at heavily congested airports. Slot coordination aims to provide the most efficient declaration, allocation, and use of airport capacity. Global slot rules are provided by the Worldwide Airport Slot Board, which consists of representatives from airports, airlines, and coordinators. According to the ACI, the continued growth of air traffic means increasing numbers of airports are congested or unable to meet future demand. The ACI Airport Carbon Accreditation program brings together airports worldwide to reach net zero CO2 emissions by 2050.

Airports provide the essential infrastructure for air carriers to provide air transport services, which require the availability of runways, passenger terminals, and ground handling services. There are over 40,000 airports around the world, differing from small grass fields to large multi-modal hubs. Airports are primarily defined by the nature of their route network and the destinations they serve. Regional airports are intended to serve short- and medium-range routes, between point-to-point destinations. Hub airports are intended to serve a network, including long-haul routes, allowing for the transfer of passengers to a connecting flight to any destination within the network. Airport connectivity measures the overall level to which an airport is connected to other destinations, either by direct flights or by indirect connections via other airports. The socioeconomic benefits of connectivity are recognized by authorities and reflected in aviation policies. The size of an airport is generally measured in terms of passenger numbers or aircraft movements. The world’s airports handled close to seven billion passengers in 2022 (still 73.8% of 2019 levels) and 89 million aircraft movements in the same year (82.5% of 2019 lev- II. International Civil Aviation els). The largest airport in the world is Atlanta Organization (ICAO) (93.7 million passengers and 724,000 aircraft The International Civil Aviation Organization movements in 2022) – according to the industry association Airports Council International (ICAO) provides for safety, environment, and (ACI). From the top 10 airports globally, five operating standards for airports, based on the are in the United States. They are all hub air- Chicago Convention on international civil aviation (1944), henceforth referred to as the ports with significant domestic markets. The ownership and management of air- Chicago Convention. The Chicago Convention requires States ports may be organized in different models. Airports are traditionally public entities, to provide airports for serving international but they have become increasingly privat- traffic as part of their air navigation faciliized; more than 500 airports worldwide have ties. States should designate international airsome form of private sector participation ports, defined as “any airport designated by in their ownership or management. In this the contracting state in whose territory it is case, governments often grant a concession situated as an airport of entry and departure agreement for the operation of an airport, for international air traffic, where the formaliwhich may entail private investments in the ties incident to customs, immigration, public health, agricultural quarantine and similar infrastructure. Airport operators provide the infrastruc- procedures are carried out.” ICAO recommends that States estabture and services for the operation of aircraft lish autonomous entities to operate airports. and the processing of passengers and cargo. 114

airports and aerodromes  115 Even if airports are (partially) privatized, States remain ultimately responsible for safety, security, and economic oversight of these entities – as defined by Standards and Recommended Practices (SARPs) laid down in ICAO Annex 14 on Aerodromes (see below). States are required to certify airports, based on the SARPs for the design and operation of aerodromes (Annex 14), which refer to “a defined area of land or water (including any buildings, installations and equipment) intended to be used either wholly or in part for the arrival, departure and surface movement of aircraft.” Every airport open for public use by national aircraft shall be open under uniform conditions for aircraft coming from other States (Article 15 of the Chicago Convention). ICAO policies on charges for airports establish the general principle that, where airports are provided for international use, the users shall ultimately bear the full and fair share of the cost of providing the airport. States are encouraged to incorporate the four key charging principles of non-discrimination, cost-relatedness, transparency, and consultation with users into their legislation and air services agreements to be complied with by airport operators.

III.

European Union

The European Union (EU) has liberalized air transport since the 1990s, providing more routes and destinations from airports. The internal market for aviation is now governed by the Air Services Regulation (1008/2008/ EC). Access to airports is regulated by the Slot Regulation (95/93/EC, as variously amended), the Airport Charges Directive (2009/12/EC), and the Ground Handling Directive (96/67/EC). The Ground Handling Directive contains a definition of “airport.” It has been defined in Article 2(a) to mean “any area of land especially adapted for the landing, taking-off and manoeuvres of aircraft, including the ancillary installations which these operations may involve for the requirements of aircraft traffic and services including the installations needed to assist commercial air services.” The above definition differs from the one provided in Air Services Regulation 1008/2008, which contains the rules on the licensing of EU air carriers and their rights to conduct intra-EU air services. As the Air

Services Regulation 1008/2008 focuses on commercial point A to point B transportation, the place of departure and arrival are both extremely relevant, so it contains a definition of the term “airport.” It means, as defined in Article 2(7), “any area in a Member State especially adapted for air services.” As with ICAO, the EU safety rules have also opted to deviate from the use of “airport.” The aviation safety regulations use the term “aerodrome,” which is defined in Article 3(16) of EU Regulation 2018/1139 as “a defined area, on land or on water, on a fixed, fixed offshore[,] or floating structure, including any buildings, installations[,] and equipment thereon, intended to be used either wholly or in part for the arrival, departure[,] and surface movement of aircraft.” Alternatively, the EU’s legislation on aviation security – as found in EU Regulation 300/2008 – does not define the term “airport.” Instead, it makes a distinction between “airside” and “landside, thus giving the term an additional layer of depth. The European Court of Justice has decided in Aéroports de Paris (C-82/01), and in other rulings, that a publicly owned airport operator is subject to the application of competition rules. The European Commission (EC) has also adopted guidance on the public funding of airports, the so-called 2014 Aviation State Aid Guidelines. Under the guidelines, the economic viability of airports is linked to their size: operating aid may be granted to airports with no more than 3 million passengers per annum during a ten year transition period (until 2024) (mppa, while investment aid may be granted to airports with no more than 5 mppa). Smaller airports display the greatest proportion of public ownership, and most often rely on public support to finance their operations. The charges of these airports tend not to be determined with regard to market considerations and, in particular, sound ex ante profitability prospects, but essentially having regard to local or regional considerations. Under normal market conditions, the profitability prospects of commercially run airports also remain highly dependent on the level of throughput, with airports that have fewer than 1 mppa typically struggling to cover their operating costs. Consequently, the vast majority of regional airports are subsidized by public authorities on a regular basis. The EC concluded that smaller airports remain

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116  elgar concise encyclopedia of aviation law structurally unprofitable, while airports up to 1 mppa may continue to need operating aid beyond 2024. Where public support constitutes State aid, the Commission considers that, under certain conditions, certain categories of aid to regional airports and airlines using those airports can be justified, in particular, to develop new services and contribute to local accessibility and economic development.

IV.

Other Terms

There are subcategories of airports that need to be considered. For example, Annex 14, Volume II contains SARPs for “heliports.” ICAO has defined the term as an “aerodrome or a defined area on a structure intended to be used wholly or in part for the arrival, departure and surface movement of helicopters.” The EU has adopted this definition in Annex I of Regulation (EU) 2017/373. The term “vertiport” has appeared within the scope of Urban Air Mobility (UAM), but it is not defined at an international level or in any primary EU law or secondary source. However, EASA’s Special Condition does provide a working definition. Despite not being enshrined in an EU Regulation, the Special Condition comprises part of the certification process, so it has limited legal effect. Further, the same definition can also be found in the Vertiport Manual. The Vertiport Manual provides that “‘[v]ertiport’ means an area of land, water, or structure that is used or intended to be used for the landing, take-off, and movement of VTOL-capable aircraft.” National law also has an important role to play in defining and regulating airports. Therefore, if the discussion falls within a national law context or when the EU has not exercised its competencies in the field of air transport, recourse to the relevant law of the EU State is required. For example, within the United States, “airport” has been defined to mean “an area of land or water that is used or intended to be used for the landing and takeoff of aircraft, and includes its buildings and facilities, if any.” Here, also, the United States has defined “heliport,” “vertiport,” and “vertistop.”

V. Concluding Remarks While the term “airport” has found its use in EU provisions, the context, such as with respect to licensing procedures or the

provision of ground handling services, is relevant, because the term is defined to fit the specific context, whereby the term cannot and should not be separated from its context. This matter is further complicated as the term “aerodrome” is more prevalent at an international (i.e., ICAO) level, which focuses on aviation safety. The EU has also followed this approach in specified regulations. Finally, subcategories also exist, giving layers to the term. All of this must be considered as there is not a single, uniform definition used across the world to define “airport.” Bastiaan de Bruijne and Benjamyn I. Scott

References Commission Implementing Regulation (EU) 2017/373 of 1 March 2017 Laying Down Common Requirements for Providers of Air Traffic Management/Air Navigation Services and Other Air Traffic Management Network Functions and Their Oversight, Repealing Regulation (EC) No 482/2008, Implementing Regulations (EU) 1034/2011, (EU) 1035/2011 And (EU) 2016/1377 And Amending Regulation (EU) No 677/2011, as Amended, OJ L 62, 8.3.2017, pp. 1–126, at Annex I. Communication from the Commission, Guidelines on State Aid to Airports and Airlines, 2014/C 99/03, https:// e u r​ - l ex ​ . e u r o p a ​ . e u ​ / l e g a l ​ - c o n t e n t ​ / E N ​ / T X T ​ / H T M L / ​ ? u r i ​ = C E L E X​ :52014XC0 4 0 4(01)&f rom=EN# nt r8 C_2014099EN.01000301-E0008. Council Directive 96/67/EC of 15 October 1996 on Access to the Ground Handling Market at Community Airports, OJ L 272, 25.10.1996, pp. 36–45. EASA, Special Condition, ‘Vertical Take-Off and Landing (VTOL) Aircraft’, Doc. No: SC-VTOL-01 Issue 1, 2 July 2019. EASA, ‘Vertiports Prototype Technical Specifications for the Design of VFR Vertiports for Operation with Manned VTOL-Capable Aircraft Certified in the Enhanced Category’, PTS-VPT-DSN, March 2022. FAA, ‘FAA Releases Vertiport Design Standards to Support the Safe Integration of Advanced Air Mobility Aircraft’, https:// www​ . faa​ . gov​ / newsroom ​ / faa​ - releases​ -vertiport​- design​-standards​-support​-safe​ -integration​-advanced​-air​-mobility.

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airports and aerodromes  117 FAA, ‘Engineering Brief No. 105, Vertiport Design’, https://www​.faa​.gov​/sites​/faa​.gov​/ files​/2022​-09​/eb​-105​-vertiports​.pdf. ICAO, Annex 14 – Aerodromes, Vol. I, 9th Edition, July 2022. ICAO, Policies on Charges for Airports and Air Navigation Services (Doc 9082). Regulation (EC) No 300/2008 of the European Parliament and of the Council of 11 March 2008 on Common Rules in the Field of Civil Aviation Security and Repealing Regulation (EC) 2320/2002, OJ L 97, 9.4.2008, pp. 72–84. Regulation (EC) 1008/2008 of the European Parliament and of the Council of 24 September 2008 on Common Rules for the Operation of Air Services in the Community, OJ L 293, 31.10.2008, pp. 3–20.

Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on Common Rules in the Field of Civil Aviation and Establishing a European Union Aviation Safety Agency, and Amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/ EU and 2014/53/EU of the European Parliament and of the Council, and Repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91, OJ L 212, 22.8.2018, pp. 1–122. USA, Title 14, Chapter I, Subchapter A, Part 1.

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33. Airspace I. Terminology The airspace discussed in this entry has been referred to by numerous titles over the last decades. Under Roman law, airspace was considered a res communis. In the Middle Ages, this doctrine was expanded (cuius est solum, eius debet esse usque ad coelum). Ownership of the land was thus considered a property associated with everything below and above it, or above it, including airspace. This principle was followed for centuries but when air navigation (balloons and airships) began to be developed at the end of the 19th century, it was necessary to establish its legal situation. In 1901, the French lawyer Paul Fauchille developed the doctrine of the freedom of the air, based on the principle of the freedom of the sea (Lee, 1913). This is how the concept of territorial airspace was created. The zone protecting public interests, according to Fauchille, should reach 1,500 m because at that time, the height was sufficient to protect States against spying by balloons or airships. Above this limit, there was free space, like high seas. Gilbert Gidel found that shipping by sea cannot be compared to air shipping (Gidel, 1934). Faucille’s concepts of freedom were also changing (Kroell, 1934). Nevertheless, today scholars generally agree that air, as a public domain (French, domanialité), is intended for use by all nations. No country can appropriate air, but has equal access to it. International conventions, proclaiming the principle of freedom of flight for foreign aircraft, regulate only the use of the international public domain. Equality in the treatment of aircraft results not only from the principle of the equality of the law of States as the principle of the law of nations (French, Droit des gens), but also from the idea of air ​​ as an international public domain (Riese, Lacour, 1951). The first International Conventions mentioning airspace sovereignty were the Paris Convention of 1919 (League of Nations Treaty Series. 13 October 1919) and the Chicago Convention of 1944 (ICAO Doc. 7300). According to Article 1 of the above Conventions, the contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.

Each State has the right to define international en route rights on commercial flights, including the right to grant or deny foreign carriers the right to operate scheduled flights. Each country has the right to decide who will use its airspace and on what terms. A State is free to dispose of its airspace, to prohibit, order, or permit flights, and to take any action provided that it is not prohibited by international law. The availability of its own airspace depends only on the willingness of a given State. The terms of using this space are regulated by the national legal order and international agreements to which the State is a party. The consent to be bound by an international agreement (multilateral or bilateral) is an act of the State’s will. As far as foreign civil aviation is concerned, it must operate in accordance with the principles defined by the domestic law of a given State. The principle has therefore become a fundamental rule in aviation law, as it breaks with the principle, commonly used for centuries, of common airspace as the heritage of humanity and the so-called principle of the open sky.

II. Air Law and Space Law There is no internationally agreed altitude limit between the airspace which requires consent from a given State and the space where such consent is not required. Within the United Nations, attempts are being made to standardize this border – the proposed distances are ​​ in the range of 30 to 160 kilometers. The International Civil Aviation Organization (ICAO), as set by the Chicago Convention in 1944, is responsible for increasing the capacity and improving the efficiency of global civil aviation navigation by developing new procedures to optimize aviation system performance (updating 19 technical annexes and other legislation). In practice, the concept of “flight space,” especially after the advent of jet aviation at the turn of the 19th and in the 20th centuries, led to many legal problems. On the one hand, it has been established that the space used for aviation purposes, and which is subject to State sovereignty, is called “airspace” or “atmospheric space” (as opposed to supraair or extra-atmospheric space). For the sake of simplicity, it was decided to consider only the Earth’s atmosphere, also known as the air space, and the extra-atmospheric (cosmic) space, ignoring the atmospheres of space

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airspace  119 bodies other than Earth. When, at the turn of the 20th century, the foundations of the doctrine of international aviation law began to be laid, there were proposals for the normative differentiation of the status of the layers of the atmospheric space rising above the land and sea territory of the State. Paul Fauchille suggested creating a lower protection zone in the atmosphere, rising to a height of 330 m and subject to State sovereignty without any restrictions, and an upper zone, within which the principle of absolute freedom of navigation for all aircraft would apply (Pépin, 1978). In 1956, John Cobb Cooper proposed the creation of an international convention (similar to the Convention on the Law of the Sea), which would establish three separate zones in the supernatural space. The first, territorial space, would extend to the height that can be reached by aircraft and would be subject to the full sovereignty of the State beneath it. The second space, extending up to an altitude of 300 miles, would be accessible to non-military flying devices of all nations. The third one, above the adjacent space, would also be open to military flying devices of all countries. The fact that the Earth’s atmosphere has a density allowing the movement of aircraft in it only up to a certain height has given rise to the conclusion that it is precisely this height that should be considered the upper limit of the extent of State sovereignty beyond which the extra-atmospheric space already extends within the meaning of international law. The second concept concerned the recognition of State sovereignty in the airspace, limited by the law of a harmless flight of a spacecraft through the airspace. The consequence of adopting this theory must be the limitation of the territorial range of State sovereignty in space only to those areas where there is air as a component of the Earth’s atmosphere, “adjacent” to the surface of land and water due to the force of gravity (Cooper, 1956). After the Soviet Sputnik was launched into space in 1957, it turned out that the principle of State sovereignty over the airspace over its territory could not be upheld with regard to space exploration. It has been noticed that obtaining the consent of an individual State to fly satellites and other devices flying into orbit more than 100 miles above the Earth’s surface would be very difficult. Therefore, after 1957, two new concepts of State air sovereignty appeared. According to the first, it was recognized that at the height of the spacecraft’s

flight path, this space was no longer subject to the sovereignty of States. This would mean that the sovereignty of States over their airspace would be limited to a certain height at which this space borders with space. However, it is difficult to say where such a border lies. The practice of States turned out to be essential for the creation of new space law. Tacit acceptance by States, without protests, of the flights over their territories of artificial satellites can be treated as the establishment of a new rule of international customary law overnight, according to which State sovereignty does not extend to the height enabling the installation of an artificial satellite in orbit. However, this consent could also only be interpreted as allowing for a harmless passage of satellites without prejudging the status of the space used by them, just as the right of the innocent passage of foreign seagoing vessels through territorial waters is recognized (Dempsey, Manoli, 2017). The launch of the first artificial satellite on Earth, which was to fly over the areas (or through the airspace) of different States, took place under the the universally binding rule of State sovereignty in the territorial airspace. Did such a flight over the territory of a foreign State without its consent violate this principle? In the run-up to Sputnik, neither the leading countries in the field of missile technology and preparations for flights in the upper atmosphere and in extra-atmospheric space, such as the United States and the USSR, nor other countries declared their position on these issues. It was even less of an internationally recognized principle (Caselli, 2012). Although more and more people spoke out in favor of special treatment of flights at high altitudes, there were no firm or even prevailing views yet, neither as to the upper limit of airspace subject to national sovereignty nor as to the permissibility of flights (harmless transit) of missile devices through the airspace of foreign countries. The recognition of the right of innocent passage of spacecraft did not deprive a State of the possibility of interfering with its fundamental rights to self-defense and to ensure the security of its territory (regardless of the height of the hazardous ship, in this so-called oblique position, over the territory of other countries). It could not also mean consent to the violation of the principles of aviation law, including those relating to the safety and order of air navigation.

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III. Airspace Limit There are two schools of thought when it comes to establishing the boundaries between air and outer space: functionalists and spatialists (Kayser, 1994). Functionalists (including Stephan Meyer and Nicolas Mateesco Matte, 1964) are opposed to the geographical division of space and believe that the basis for the division should be created by international aviation law only according to the range of the aircraft (Cheng, 1980). On the other hand, spatialists find it necessary to make such a division, because the problems of air and space are completely different and should have separate legal regimes. The norms of international agreements that make up the canon of international space law do not specify at what height above the Earth’s surface (sea level) the cosmos begins (the so-called lower limit of outer space). It is also difficult to provide in this respect a customary rule of international law (international custom) of a general nature. Only by convention is it assumed that the lower limit of the cosmos is 100 kilometers above the Earth’s surface, counting from sea level. This figure is taken into account by, inter alia, the International Aviation Federation (IAF) (Fédération Aéronautique Internationale [FAI]). In fact, no aircraft can be designed for long-term flight at an altitude of 100 km due to the risk of decompression (commercial aircraft fly no higher than 18–20 km.) On the other hand, no satellite can sustain an orbital flight close to 100 km above the Earth (United Nation Committee on Peaceful Uses of Outer Space). The lack of an agreed vertical limit on the sovereignty of States has engendered issues with the State’s responsibility for the activities of its citizens in space. As already mentioned, there are many different proposals for the demarcation between airspace and outer space. The United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) has been considering such a definition since 1967, and it has expressed doubts as to whether such a demarcation should be carried out. The arguments against the establishment of such a demarcation were as follows: ●

identifying air and space demarcations will encourage some States to impose overly broad claims on their sovereignty;

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●

●

●

the boundaries can be set so high that at times space activities could be hampered; setting the border at a low height will increase the fear of some States that their security will be threatened; the setting of the border is not advisable at this stage due to constant technical progress (Reinhard, 2007).

It should be added here, however, that defining these boundaries is not only a legal and technological sphere, but also the sphere of political interests (Fixel, 1948). The problem with defining the State’s vertical sovereignty stems from the lack of a natural boundary between air and space. Hence, many proposals have been made to extend State sovereignty to the highest altitude at which an aircraft can fly. At the second International Institute of Space Law (IISL) colloquium in 1959 in London, Michael Smirnoff proposed the following definition: space begins where helicopters and jet aircraft end their ability to fly (remaining in the atmosphere due to the reaction of the air). However, these are not practical solutions, as advanced technologies can change the maximum height (and thus stretch the State’s sovereignty too much) (IISL, 2020). In the response given by the International Civil Aviation Organization (ICAO) Secretariat in 1970 to the United Nations (UN) Secretariat it was stated that the maximum altitude is the distance from the Earth’s surface above which the flight is due to air reaction and is, according to current estimates, about 35 km; however, thanks to advances in technology, it will likely be possible for the aircraft to fly at even greater altitudes (Markoff, 1969). Therefore, a suggestion was put forward that for the legal-international demarcation of airspace and outer space, one should assume the height corresponding to the lowest perigee of the artificial Earth satellite remaining in orbit. There is even a view in the literature that the norm of customary international law on this subject has already been formed since no State has so far raised a protest against placing spacecraft in orbit around the Earth. As a result, the widespread practice of the freedom of all States to study and use the space above the Earth’s atmosphere has become established.

airspace  121 Due to the lack of a normative definition of the lower limit of the outer space in international space law, this issue is sometimes regulated by national law. In this respect, national legislators explicitly refer to the aforementioned altitude of 100 kilometers above sea level, although not always. While much has happened in space over the past 60 years, it is only recently that attention has been drawn to the upper atmosphere of the Earth, which is used by both the private and the military sectors. This region is also important for environmental reasons. However, from a legal point of view, it is not known whether the operations taking place there are covered by aviation conventions or space treaties, in particular with regard to freedom of flight, which is related to space operations. There is currently a great interest in suborbital space tourism and future hypersonic and suborbital communication; thus, it seems necessary to establish a boundary line, defining where State sovereignty ends and extraterritorial outer space begins. However, defining an additional legal regime for suborbital flights and other stratospheric activities can be complex and hamper business innovation. In this situation, the concept of a new Near Space border was born – an original proposal by the International Association for the Advancement of Space Safety (IAASS) for UNCOPUOS, inspired by the Law of the Sea from 1982 (United Nations Convention on the Law of the Sea [UNCLOS]). Thanks to this, a project was created to establish an intermediate Near Space between airspace and outer space (18–160 km) with a mixed legal regime instead of a hard border based on a functionalist or spatial approach. The purpose of this proposal was, on the one hand, to ensure security and, on the other hand, to meet the economic and military interests of States neighboring the space powers in order to control passing objects. In the near future, various types of devices will be created, e.g., suborbital vehicles, which will often use the Near Space area. Of course, the State over which such a vehicle will be placed will have the right to control it. Operations in the Near Space area are one of the most difficult, but they can bring great benefits (e.g., placing devices providing various types of telecommunications or Internet services). For now, the construction of specific

plans is hampered by the uncertain legal status of Near Space (Liu, Tronchetti, 2019).

IV. Concluding Remarks There are many definitions and concepts of airspace and its limit. By international air law, a State has complete and exclusive sovereignty over the airspace above its territory. Airspace not within any country’s territorial limit is considered international, such as “High Seas” in maritime law. However, a State may, by multilateral or bilateral agreements, assume responsibility for controlling parts of international airspace, such as those over the oceans. A State is responsible for such airspace under the ICAO. There is no international agreement on the vertical border of sovereign airspace (neither in aviation law nor in space law). In general, it may be observed that the process of departing from territorial criteria of State in favor of functional criteria of the State activity in airspace has been initiated. For practical use, the Kármán line – at an altitude of 100 km – is the boundary between the Earth’s atmosphere and outer space. This boundary between public airspace and outer space may be defined by national law. Małgorzata Polkowska

References Bin Cheng, The legal regime of airspace and outer space: The boundary problem. Functionalism versus spatialism, The major premises, ‘Annals of Air and Space Law’, 1980, t. V. Convention Relating to the Regulation of Aerial Navigation, League of Nations Treaty Series. 13 October 1919. Archived from the original on 5 July 2012. Retrieved 18 May 2012. Dean N. Reinhard, The vertical limit of state sovereignty, ‘Journal of Air Law and Commerce (JALC)’, 2007, Vol. 72. Eugène Pépin, La Conference de Paris de 1910 ou le première essai de réglementer l`aviation international, ‘Annals of Air and Space Law’, 1978, Vol. III. Gilbert Gidel, La mer territoriale et la zone contiguë, Academie de droit international, ‘Recueil des Cours’, 1934, t. 48.

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122  elgar concise encyclopedia of aviation law John Cobb Cooper, Legal problems of spacecraft in airspace, ‘Journal of Air Law and Commerce’, Vol. 23, No. 3, Art. 4, 1956. Kroell Joseph, Traité de droit international public aèrien.Vol I, L`aèronautique en temps de paix, Paris, Les Éditions internationales, 1934. Lee Blewett, The American Journal of International Law, Vol. 7, No. 3 (Jul., 1913) Cambridge University Press. Leonardo P. Caselli, Space demilitarization treaties in a new era of manned nuclear spaceflights, ‘Journal of Air and Commerce (JALC)’, 2012, Vol. 77. Liu Hao, Fabio Tronchetti, Regulating nearspace activities: Using the precedent of the exclusive economic zone as a model?, ‘Ocean Development & International Law’, 2019, Vol. 50, No. 2–3. Marco Markoff, La delimitation de l’espace extra-atmosphérique, ‘Revue Gènèrale de l`Air et l`Espace (RGAE)’, 1969, No. 4. Mateesco N. Matte, Traité de droit aérien. Ėvolution- problèmes spatiaux, Paris: Éditions A. Pedone 1964. Otto Riese, Jean T. Lacour, Précis de droit aérienne, Paris: Collection sur Persée 1951.

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Paul Steven Dempsey, Maria Manoli, Suborbital flights and the delimitation of airspace vis ā vis outer space: Functionalism, Spatialism and State Sovereignty – A Submission to the United Nations Office of Outer Space Affairs by The Space Safety Law & Regulation Committee of the International Association for the Advancement of Space Safety, OOSA/2017/19 12 September 2017; CU 2017/351(d)/OOSA/CPLA. Rowland Fixel, The Law of Aviation, Charlottesville Michie Company, 1948. The Convention on International Civil Aviation, the Chicago Convention (ICAO Doc. 7300). The International Institute of Space Law, ‘Six Decades of Space Law and its Development(s) (1960–2020)’, IISL 2020. United Nations Convention on the Law of the Sea of 10 December 1982 https://www​ .un​.org​/depts​/ los​/convention​_ agreements​/ texts​/unclos​/ UNCLOS​-TOC​.htm. Valérie Kayser, Aux confins de l’air et de l’espace. D’Accursius à l’avion spatial, ‘Annals of Air and Space Law’, 1994, t. XIX. Vol. II.

34. Airspace Sovereignty

their territories. Article 1 of the 1919 Paris Convention stated that: The High contracting Parties recognize that every Power has complete and exclusive sovereignty over the air space above its territory. For the purpose of the present Convention the territory of a State shall be understood as including the national territory; both that of the mother country and of the colonies, and the territorial waters adjacent thereto.

I. Introductory Remarks The Convention Relating to the Regulation of Aerial Navigation signed in Paris, 13 October 1919 (henceforth also referred to as the 1919 Paris Convention) and the Chicago Convention on International Civil Aviation signed in Chicago, 7 December 1944 (henceforth also referred to as the 1944 Chicago Convention) both define and give emphasis to the fundamental principle of airspace sovereignty. From a historical point of view, the origin of the principle of airspace sovereignty is military: given the proliferation of military aircraft throughout the two World Wars in the 20th century, the principle was set out as a result of the employment of destructive weapons released through air during incursions into foreign national airspaces. Before outlining the principle of airspace sovereignty, it is worth defining the concept of airspace itself as the portion of sky divided into national airspace (e.g., the area above a State’s land and its territorial waters) and international airspace (e.g., the airspace above the area that exceeds the territorial waters). Consequently, the principle of airspace sovereignty can be considered to be the most valuable legal instrument provided by international air law regulatory framework to prevent violations of national airspace.

II. Definition and Development of the Principle 1. The 1919 Paris Convention Prior to the 1919 Paris Convention, academic debates focused on contradictory positions regarding the status of the air, focusing more on the concept of air as a medium rather than its uses. Two theories were proposed: on the one hand, the thesis of the “freedom of the air” (airspace understood as res communis omnium), and, on the other, the thesis of the “air sovereignty” (in analogy with the privatefocused principle qui dominus est soli, dominus est coeli et inferorum), mitigated by the right of innocent passage. The 1919 Paris Convention was the first multilateral treaty to establish the cardinal principle of the complete and exclusive sovereignty of States over the airspace above

The general principle was also complemented by Article 2 of the 1919 Paris Convention, according to which: Each contracting State undertakes in time of peace to accord freedom of innocent passage above its territory to the aircraft of the other contracting States, provided that the conditions laid down in the Convention are observed.

Nevertheless, the “freedom of innocent passage” was subject to significant limitations provided for in Articles 3 and 15 of the 1919 Paris Convention. Specifically, Article 3 stated that each contracting State had the right to prohibit aircraft of other contracting States, for military reasons or in the interest of public safety, from flying over certain areas of its territory: (i) under the penalties provided for in its own legislation; and (ii) without any distinction between its own private aircraft and those of the other contracting States. Furthermore, Article 15 stated that aircraft of each contracting State had the right to cross the airspace of another State without landing, by following in such cases the route established by the State over which the flight is made. Therefore, in light of these two rules, the “freedom of innocent passage” was a concept almost entirely devoid of practical relevance to commercial air transport. 2. The 1944 Chicago Convention In 1944, at the end of World War II, representatives of 52 States signed the Chicago Convention in an effort to initiate the process of regulation of civil air transport and to oversee its development. Contracting States were aware that the 1919 Paris Convention had excessively accommodated the

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124  elgar concise encyclopedia of aviation law protectionist and centralizing demands of those countries that, having been victorious in World War I, were opposed to any form of multilateral recognition of traffic rights and, more generally, to any liberalist conception in the air traffic sector that conflicted with national policies. The air transport industry was preparing for a period of expansion that would lead to a considerable development of commercial air traffic within a few years. There was, therefore, the need to implement a discipline capable of giving impetus to this new industry, fostering its technical and economic growth. At the time of the drafting of the 1944 Chicago Convention, the air transport sector was characterized by the predominant position of the United States, which constituted the leading world power in international air services thanks to technology at its disposal and the considerable resources allocated to its aviation industry. Other countries, such as the United Kingdom and France, were going through a phase of reorganization in the sector and were clearly less competitive than the United States. These countries were well aware that, if a liberal choice had prevailed in the drafting of the 1944 Chicago Convention, they would have easily lost important market shares compared to their American competitor. The affirmation of a more protectionist policy – based on the principle of sovereignty over their own airspace and by the allocation of routes through bilateral agreements – was seen as a legal tool to allow the States of the international community to operate under less disadvantageous conditions compared to the United States. They were able to do so at least for the time necessary for the sector to recover after the catastrophic events of World War II. In this context, at the time the 1944 Chicago Convention was drafted, contracting States tried to achieve, precisely through the principle of airspace sovereignty, greater protection of their flag carriers and of their air traffic shares; thus, securing more favorable conditions for themselves and undermining the air traffic liberalization project sought by the United States. Therefore, it is possible to acknowledge within the 1944 Chicago Convention the definition of the principle of airspace sovereignty, contained in Article 1, as self-limitation of anna masutti

national sovereignty over airspace, which States have agreed to respect in the exercise of their sovereign prerogatives. Article 1 of the 1944 Chicago Convention states that: The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.

According to Article 1 of the Convention, each State is sovereign over the airspace above its territory and, as such, regulates, manages, and controls scheduled and nonscheduled air transport and aviation activities therein. This provision allows individual States to allocate among carriers the use of their airspace by issuing them the necessary permits and authorizations. In practice, an aircraft in navigation, in addition to being subject to the powers of the national State of registration, is subject to the exercise of the territorial sovereignty of the overflown State. Moreover, from Article 1 of the 1944 Chicago Convention, it is possible to highlight the traditional approach according to which the exercise of sovereignty over airspace is based on the necessary and indissoluble relationship between the land surface and the airspace above it. Specifically, land surface includes not only the land delimited by land boundaries, but also territorial waters and possessions that do not constitute State territory in the strict sense, such as, for example, old colonies and protectorates. In this sense, the actual purpose and scope of the principle of airspace sovereignty, as outlined in the 1944 Chicago Convention, is deepened by the definition of Article 2, which states that: The territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.

The principle of airspace sovereignty finds further and indirect recognition in the subsequent Article 6, which provides that: No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State,

airspace sovereignty  125 and in accordance with the terms of such permission or authorization.

ratio of Article 9, establishes that each contracting State may

With Article 6, the 1944 Chicago Convention refines the restrictive logic guiding the airspace sovereignty principle by introducing a more open view of the market access principle. Furthermore, Article 6 pays greater attention to issues of national security. In fact, considering the absence of borders in the airspace, air navigation stands as the means of transportation that enables the highest number of penetrations into national airspace of sovereign States. Therefore, with Article 6, contracting States at the 1944 Chicago Convention aimed at mitigating the restrictive core of the principle of airspace sovereignty through the principle of market access. At the same time, they limited access into their airspace and prevented unauthorized activities, given that, in order to perform any international air service, Article 6 requires special permission or authorization from the State concerned. The principle of airspace sovereignty is further complemented by the provision of Article 7 of the 1944 Chicago Convention, which states that:

for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engaged. Such prohibited areas shall be of reasonable extent and location so as not to interfere unnecessarily with air navigation.

Each contracting State shall have the right to refuse permission to the aircraft of other contracting States to take on in its territory passengers, mail and cargo carried for remuneration or hire and destined for another point within its territory. Each contracting State undertakes not to enter into any arrangements which specifically grant any such privilege on an exclusive basis to my other State or an airline of any other State, and not to obtain any such exclusive privilege from any other State.

The sovereignty over their airspace is, therefore, confirmed by Article 7, which recognizes a cabotage reservation in favor of each contracting State, which may thereby refuse permission to the aircraft of another contracting State to take onboard passengers, mail, or cargo in its territory in order to transport them, for commercial purposes, to another point in the same territory. Moving on with the analysis of the key manifestations of the principle of airspace sovereignty contained in the 1944 Chicago Convention, of particular relevance is the provision of Article 9 which, following the same

Therefore, from the principle of airspace sovereignty, Article 9 derives the power of each contracting State to establish restricted or prohibited zones of their airspace, as long as these limitations are motivated by military necessity or public safety reasons and as long as they are applied equally to all the airlines of the contracting States. Lastly, offering a privileged glimpse into the evaluation of the airspace sovereignty principle by the European Union (EU), the practice developed in the second half of the 20th century around the conclusion of bilateral Air Services Agreements (ASAs) shall be considered. Indeed, even though i) the EU is not formally a contracting party to the 1944 Chicago Convention (while all its Member States are) and ii) the 1944 Chicago Convention does not impose the conclusion of ASAs, with regard to the relationship between Member States and third countries, ASAs are the tools that have been used to implement the airspace sovereignty principle of the 1944 Chicago Convention, as set out in Article 6. Indeed, the permission/authorization to cross the airspace over which each Member State exercises its sovereignty has traditionally been granted by the signing of bilateral agreements, opening the national airspace and the aviation market to the provision of international air services. Hence, ASAs are the source for the regulation of international civil aviation, provide different levels of market access, and set out rules to cover traffic rights, capacity, fares, and airlines designation. anna masutti

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III. Airspace Sovereignty and Air Traffic Management (ATM) In the development of international air services, from the European point of view, the sovereignty principles proved to be an obstacle to the implementation of the Single European Sky (SES) as well as the uncertain distribution of roles between the EU institutions and bodies involved, such as the European Commission, Eurocontrol, the SESAR Joint Undertaking, and the European Union Aviation Safety Agency (EASA). Indeed, besides the definitions and declinations of the principle of airspace sovereignty, the 1944 Chicago Convention gives a prominent role to Air Traffic Management (ATM) as a fundamental component of air transport services. Article 28 of the 1944 Chicago Convention establishes that the provision of air navigation facilities is a State responsibility: Each contracting State undertakes, so far as it may find practicable, to: (a) provide, in its territory, airport, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention.

The main challenges in complying with this provision, which requires to “facilitate international air navigation,” consist in optimizing the traffic flows at the international level in order to reduce delays without compromising safety standards. These performances appeared difficult to ensure and air transport growth, promoted by several European Union initiatives, revealed the inadequacy of the European ATM system in the innovation of their infrastructures and related technologies. Therefore, the EU needed an urgent enhancement of air traffic safety standards and the improvement of ATM and Air Navigation Services (ANSs) performance. It needed to do this without losing sight of the provisions of the Chicago Convention. In this respect, efficient ATM services must ensure the separation between aircraft and balancing supply of Air Traffic Control (ATC) and flights’ demand. Nevertheless, ATM services have traditionally been managed by Member States anna masutti

in a fragmented way: this has contributed to delays and higher ATM costs borne by airspace users. In this context, the SES came into play, aiming at improving the overall performance of ATM by attributing some national competences from intergovernmental practice to the EU, leading to the loss of sovereignty by Member States in the management of traffic into their airspace. The creation of the SES culminated in the adoption, in 2004, of the first package of rules gradually establishing a framework encompassing a set of EU-wide common binding rules on ATM safety, on the provision of ATM services, on airspace management, and on interoperability within the network. The EU reconsidered the organization of the entire ATM by giving competences and functions to European agencies and moving them from national bodies to these latter. The SES initiated a process that was supposed to lead to the centralization of control systems, by overcoming the particularisms of individual Member States, in order to respond to the inefficiencies in the air transportation system, introducing at the same time limitations to the sovereignty of Member States. European Union regulatory activity has continued this process through the introduction of a second package (SES II), which aims at making European sky safer and more sustainable mainly through the introduction of a performance framework for ATM, with a quantified target setting, and through a redefinition of the Functional Airspace Blocks (FABs). This process has led to a further extension of EASA’s responsibilities on ATM and shifted rulemaking support for technical implementing rules, together with the oversight of Member States, from Eurocontrol to EASA, permanently lifting this competence from Member States’ sphere of sovereignty. Subsequently, the Single European Sky ATM Research (SESAR) project was launched in 2004 with the aim of developing and deploying what is needed to increase ATM performance. The SESAR JU was established in 2007 as a public-private partnership, and it is responsible for the modernization of the European ATM system. Although SESAR is considered to be the instrument to overcome the reluctance of Member States to fully harmonize ATM rules and optimize the airspace

airspace sovereignty  127 independently of national borders, its results fall below expectations. The EU proposed that the borders of FABs (1) would not need to coincide with national boundaries, and (2) would be created to support the provision of ATS within area control centers responsible for an optimal size of airspace in the European Upper Flight Information Region (EUIR). The FABs implementation was subordinated to the optimization of flight information regions, of the ANSPs’ governance, and of the cost-efficiency and capacity set out in the Performance Scheme (PS). However, the lack of implementation of such measures by Member States led the European Commission (EC) to launch infringement procedures to Member States for their failure to remain faithful to their commitments in realizing the SES. Although the EC initiatives have improved cooperation between Member States, such cooperation pre-dates the creation of FABs. Consequently, the sky’s fragmentation persists because of insufficient integration of air traffic control centers and a lack of common charging zones. This can only be considered the result of Member States’ unwillingness not to prejudice their sovereignty.

IV. Conclusive Remarks As it has emerged, each State enjoys a power monopoly within its own airspace, which means it has unrestricted authority over that airspace. It is a right founded on the provisions of international law that forbid a State from imposing their will on the territory of other States. The contracting States of the 1944 Chicago Convention have traditionally manifested different approaches to the implementation of the principles, from a more liberal to a more rigid view, up to practice of ASAs between EU Member States and third countries. Moreover, and in relation to the ATM, the SES has failed to register the expected progress and European skies are still fragmented. This leads to inefficient European air services in terms of delays and cancellations.

The solution to these problems lies in overcoming the structural constraints imposed by the principle of airspace sovereignty, which characterizes the current ATM system, along with establishing a harmonized system support and operational procedures. Anna Masutti

References A. Lefebvre D’Ovidio, G. Pescatore, & L. Tullio, Manuale di diritto della navigazione, Milan, 2019, 99 ff. A. Masutti, Aeronautical Product Liability Insurance and Recent Development, in Rivista italiana di Diritto del Turismo, n. 23, 2018. A. Masutti, Bilateral Agreements and Aviation Market Evolution: State of Play, in Diritto dei Trasporti, 2018, 608–627. A. Masutti, Sovereignty Pertaining to Air Traffic Management, in Behind and Beyond the Chicago Convention, The Evolution of Aerial Sovereignty, The Netherlands, 2019, 111 ff. B.F. Havel & G.S. Sanchez, The Principles and Practice of International Aviation Law, Cambridge University Press, New York, 2014, 40 ff. P. Haanappel, The Law and Policy of Air Space and Outer Space, The Netherlands, 2003, 1–3. P. Haanappel, Aerial Sovereignty: From Paris 1919, through Chicago 1944, to Today, in Behind and Beyond the Chicago Convention, The Evolution of Aerial Sovereignty, The Netherlands, 2019, 25 ff. P. Mendes de Leon, Introduction to Air Law, Eleventh Edition, The Netherlands, 2022, 9 ff. S. Hobe, Sovereignty as a Basic Concept of International Law and a Core Principle of Air Law, in Behind and Beyond the Chicago Convention, The Evolution of Aerial Sovereignty, The Netherlands, 2019, 35 ff. Worldwide Air Transport Conference (Atconf) Sixth Meeting, Montreal, 18–22 March 2013.

anna masutti

35. Airworthiness I. Definition for Airworthiness In the general interest of human and property safety an aircraft consistently needs to comply with adequate airworthiness requirements from the moment of its fabrication throughout its operational life. According to Annex 8 to the Chicago Convention, an aircraft can be considered “airworthy” only “when it conforms to its approved design and is in a condition for safe operation” (ICAO 2010, p. I-i). The mandatory requirements for an aircraft to be considered safe and allowed to fly are established by the national airworthiness authorities (NAAs). These specialized authorities are directly appointed by States and are in charge of administering the development of common standards to be applied by aircraft manufacturers, designers, and operators.

II. Airworthiness International Standards The Paris Convention put in place a system of State responsibility, which has been subsequently incorporated in the Chicago Convention via Articles 31 (“Certificates of Airworthiness”), 32 (“Licenses of Personnel”), and 33 (“Recognition of Certificates and Licenses”). The essential aim of these articles is to mandate that contracting States achieve the highest practical degree of worldwide uniformity in regulations and organizing procedures relating to aircraft, personnel, airways, and auxiliary services. Conversely, the responsibility for establishing measures to guarantee the safety of air transportation has been assigned by the contracting States to the International Civil Aviation Organization (ICAO). Under Article 44 of the Chicago Convention, one of ICAO’s objectives consists in developing the principles and techniques of air navigation to ensure the safe growth of international civil aviation. In an effort to facilitate the operations of aircraft in international air navigation, Article 33 of the Chicago Convention places the burden on the State where the aircraft is registered (State of Registry) to recognize and render valid an airworthiness certificate issued by another contracting State, subject to the condition that

the airworthiness requirements under which such a certificate is issued or rendered valid are equal to or above the minimum standards fixed by ICAO. On the same token, following Avianca Flight 052 accident, the Federal Aviation Administration (FAA) instituted in 1992 the International Aviation Safety Assessment (IASA) program, as means to determine whether another country’s oversight of its air carriers operating into the United States complies with SARP provisions on personnel licensing, aircraft operations, and aircraft airworthiness. Safety requirements for operations to the United States are also prescribed by the FAA’s Part 129 regulations. Part 129.5 states that foreign aircraft flying within the United States shall conduct their operations observing the standards described in Annex 6 and Annex 8 to the Chicago Convention. In addition to SARPs, the ICAO publishes ancillary documents, including agendasetting documentation, such as the Global Aviation Safety Plan (GASP), which, together with the Global Aviation National Plan (GANP), provides the framework in which regional and national aviation safety plans are developed, thus ensuring harmonization to improve international civil aviation safety, capacity, and efficiency. To this end, continuing airworthiness reporting represents a crucial safety data for the purpose of identifying targets and challenges to assist ICAO in settling priorities for global action and to define GASP’s objectives.

III. Primary Aviation Legislation It is of the essence that a State promulgates primary aviation legislation, such as a national civil aviation code or a civil aviation act to administer a State’s civil aviation organization. Article 12 (“Rules of the air”) of the Chicago Convention mandates that “each contracting State undertakes to adopt measures to insure that every aircraft flying over or maneuvering within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and maneuver of aircraft there in force” and adds also that contracting States shall “keep its own regulations in these respects uniform, to the greatest possible

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airworthiness  129 extent, with those established from time to time under this Convention” (ICAO 2006, p. vii). With specific regard to airworthiness requirements, the SARPs leave contracting States free to decide whether to develop their own comprehensive and detailed code of airworthiness or to accept the standards set down by another contracting State to provide a basis for the certification of individual aircraft flying over their own territory. The mandatory level of airworthiness that shall be guaranteed by a national code of airworthiness is enshrined in Annex 8, and it may be supplemented by the guidance material provided in ICAO’s Airworthiness Technical Manual (Doc 9760). This document assembles airworthiness information previously described in the Airworthiness Technical Manual (Doc 9051), the Manual of Procedures for an Airworthiness Organization (Doc 9389), and the Continuing Airworthiness Manual (Doc 9642). Under Annex 8, aircraft shall obtain both a Type Certification, which is related to a specific class of aircraft, and a Certificate of Airworthiness attesting that the aircraft complies with the project approved in the Type Certification and that, in consequence, it can safely perform the air navigation activity for which it was built. The State of Registry verifies that every aircraft on its register conforms to the approved type design in accordance with the airworthiness code adopted for the specific class of aircraft under scrutiny. The State of Registry is also deemed responsible for ensuring that every aircraft on its register is kept in an airworthy condition, as well as for checking that the necessary maintenance activities are performed exclusively by Approved Maintenance Organizations (AMOs) appointed by one or more contracting States, in line with the requirements set out in Annex 8, Part II, Chapter 6, 6.2.4, to the Chicago Convention.

IV. Structure and Content of Annex 6 and Annex 8 to the Chicago Convention Annex 6 to the Chicago Convention outlines the minimum requirements for the operation and maintenance of aircraft with the purpose of contributing to the safety of international air navigation. It is divided in three sections: Part I is dedicated to the international

commercial transport performed by aircraft; Part II deals with airplanes in International General Aviation, while international commercial in transport operations and general aviation operations in helicopters is covered in Part III. Annex 6 includes additional aircraft equipment requirements that must be met in case the airplane is intended to be used to carry out operations of exceptional scale. The same Annex comprises provisions for maintaining the aircraft in an airworthy condition during its operational life, including air operators’ maintenance responsibilities, the maintenance control manual (MCM), maintenance program requirements, maintenance record-keeping, modification and repair data approval requirements, and maintenance release requirements for qualified personnel and authorized organizations other than AMOs. These requirements are intended to ensure that an aircraft remains in a safe condition during its operational life and continues to conform to the approved design data. Annex 6 entails the duty for the air operator to monitor and assess maintenance and operational experience with respect to continuing airworthiness, provide this information as prescribed by the State of Registry, and report through a system as specified in Annex 8, Part II, Chapter 4. The air operator should also obtain and assess continuing airworthiness information and recommendations available from the organization responsible for the type design and should implement any necessary actions in accordance with a procedure acceptable to the State of Registry. Annex 8 has been divided into four parts: Part I focuses on definitions; Part II deals with procedures for certification and continuing airworthiness of aircraft and provides a standard format for the Certificate of Airworthiness; Part III includes technical requirements for the certification of large new airplane designs; and Part IV offers instructions relative to helicopters. The technical standards about the airworthiness certification of airplanes set out in this Annex are limited to multi-engined aeroplanes of over 5,700 kg maximum takeoff mass. These include requirements related to performance; flying qualities; structural design and construction; engine and propeller design and installation; operating limitations, including procedures and general information francesca berni

130  elgar concise encyclopedia of aviation law to be provided in the airplane flight manual; crashworthiness of aircraft and cabin safety; operating environment; and human factors and security in aircraft design. Annex 8 takes a holistic approach toward safety by focusing also on “anticipated operating conditions”: these are conditions that can be reasonably envisaged to occur during the operational life of the aircraft, and they also include conditions relative to the weather, terrain surrounding the aerodromes from which the aircraft is expected to operate, functioning of the aircraft, efficiency of personnel, and other factors affecting safety in flight. According to Annex 8, the minimum performance specified in its clauses shall be accomplished at all phases of flight, meaning that the aircraft must be controllable under all operating conditions without exceptional skill or strength on the part of the pilot, even in the event of failure of any power unit. Special security features have been included in Annex 8 conditioning aircraft design to maximize the resilience and protection of the aircraft in case of hijackings and terrorist acts.

V. Continuing Airworthiness A fundamental concern in airworthinessrelated procedures is the notion of “continuing airworthiness,” according to which the condition of airworthiness must be maintained at any time during the operational life of the aircraft. Regular inspections are mandated to certify that all airworthiness requirements are met, and that the aircraft is still suitable for use. Pursuant to the provisions on continuing airworthiness stated in Annex 8, Part II, Chapter 4.2.1.1(a), the State of Registry and the State that released the type certification (the “State of Design”) exchange any generally applicable information necessary for an unceasing secure operation of the aircraft (“mandatory continuing airworthiness information” [MCAI]). This kind of data includes information that identifies the methods and procedures necessary to perform the continuing airworthiness tasks identified for the aircraft; the reporting of faults, malfunctions, and defects and other significant maintenance and operational information by the type design organization; the State of Design and the State of Registry and the initiation of mandatory action to be taken in response to that analysis; the francesca berni

adoption by the operator into its maintenance program of supplemental structural inspection programs and subsequent SIP (Structural Integrity Program) requirements. A regulatory document named Airworthiness Directive (AD) serves as a common form for mandatory continuing airworthiness information. It addresses recommendations useful for improvements or corrective actions to be implemented by the holder of the Certificate of Airworthiness in order to fix an unsafe condition that exists or could develop. These directives can be issued by any NAA responsible for the regulation of design of that aircraft and its components. At the European level, conforming to Basic Regulation (EU) 2018/1139, Article 77, the European Aviation Safety Agency (EASA) is responsible for fulfilling the State of Design responsibilities of its Member States. EASA disseminates the applicable mandatory information by means of ADs, which are directly applied in EASA Member States and spread by the latter to all competent authorities of ICAO contracting States. Francesca Berni

References Brian F. Havel, Gabriel S. Sancgez, The Principles and Practice of International Aviation Law (Cambridge University Press, 2014). Convention on Civil Aviation (‘The Chicago Convention’) (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295, art 44, annex 6 and annex 8. EASA, ‘Airworthiness Directives’ https:// www​ . easa ​ . europa ​ . eu ​ /domains ​ /aircraft​ -products​/airworthiness​-directives​-ad. FAA, ‘International Aviation Safety (IASA) program’ https://www​.ecfr​.gov​/current​/title​ -14. Filippo Florio, Airworthiness, An Introduction to Aircraft Certification and Operations (Elsevier, 2016). ICAO, ‘Airworthiness Manual’, Doc. 9760 (2020). ICAO, ‘GASP’ Doc. 10004 https://www​.icao​ .int​/safety​/GASP​/ Pages​/GASP​-Doc.​-10004​ .aspx. ICAO, ‘Global Aviation Safety Plan’, Doc. 10004, (2019) Part I, Chapter 3. ICAO, ‘ICAO Requirements on Continued Validity of Maintenance Organization Approvals’   https://www​.icao​ .int ​ /safety​/

airworthiness  131 OPS​/OPS​-Normal​/ Pages​/ Requirement​-on​ -continued​-validity-​.aspx. ICAO, ‘Safety Oversight Manual, Part A: The Establishment and Management of a State’s Safety Oversight System’, Doc. 9734 (2006). International Federation of Airworthiness, ‘Continuing Airworthiness, Functions and Responsibilities’ https://skybrary​.aero​/sites​ /default​/files​/ bookshelf​/2703​.pdf.

Le Huong, Ilias Lappas, Continuing Airworthiness: Major Drivers and Challenges in Civil and Military Aviation (Aviation (Vilnius, Lithuania), vol. 19, no. 4, 2015), 165–170. Rocco Lobianco, Compendio di diritto aeronautico (Giuffrè, 2021), 301–309.

francesca berni

36. Annexes to the Chicago Convention I. Terminology The so-called Annexes are documents contemplated in the Chicago Convention on International Civil Aviation (1944), henceforth, the Chicago Convention (see specific entry), containing Standards and Recommended Practices (SARPs) adopted by the Council of the International Civil Aviation Organization (ICAO). They aim to create a set of rules and regulations for air navigation as uniform as possible. Unlike the 1919 Paris Convention, the annexes, which were included as an integral part of this Convention and which could be amended only by a qualified majority of the Commission internationale de la navigation aérienne (CINA), the Chicago Convention foresees the adoption of new SARPs, in addition to the amendments of those already existing, approved from time to time, when needed, and which are designated as Annexes to the Convention “for convenience.” Procedures for Air Navigation Services (PANS), which are applied globally, and Supplementary Procedures (SUPPS), which are applied at a regional level, are both published separately and not inserted in these technical annexes. They are merely specifications of SARPs.

register their disapproval with the Council.” The effective technical annex or amendment to it is then submitted on a suspensive condition, which is the non-dissent on the part of the majority of the ICAO Member States. The topics that may be standardized are listed in Art. 37 of the Convention. However, this list is not exhaustive, as can be clearly inferred from development of Annexes since the inception of the establishment of SARPs. There are 19 annexes in force at present, and they are as follows: ● ● ●

● ●

● ●

● ● ●

● ● ● ● ●

● ●

II. Adoption of Annexes

●

The Annexes (and their amendments) are elaborated by a branch of the ICAO, the Air Navigation Commission, made up of individuals in themselves and not representing any Member States (Malintoppi Antonio (1951), p. 278). The adoption of the Annexes “shall require the vote of twothirds of the Council at a meeting called for that purpose,” expressing the will of the organization. Said procedure of adoption, however, goes further. The Annexes shall then be submitted by the Council to each contracting State. Art. 90 affirms that “Any such Annex or any amendment of an Annex shall become effective within three months after its submission to the contracting States or at the end of such longer period of time as the Council may prescribe, unless in the meantime a majority of the contracting States

●

Annex 1 Personnel Licensing; Annex 2 Rules of the Air; Annex 3 Meteorological Service for International Air Navigation; Annex 4 Aeronautical Charts; Annex 5 Units of Measurement to be Used in Air and Ground Operations; Annex 6 Operation of Aircraft; Annex 7 Aircraft Nationality and Registration Marks; Annex 8 Airworthiness of Aircraft; Annex 9 Facilitation; Annex 10 Aeronautical Telecommu­‑ ­nications; Annex 11 Air Traffic Services; Annex 12 Search and Rescue; Annex 13 Aircraft Accident Investigation; Annex 14 Aerodromes; Annex 15 Aeronautical Information Services; Annex 16 Environmental Protection; Annex 17 Security; Annex 18 Safe Transport of Dangerous Goods by Air; Annex 19 Safety Management.

III. Nature and Efficacy of SARPs The issue of the nature and efficacy of the SARPs are dealt with in the light of the Chicago Convention and a later resolution issued by the ICAO Assembly (doc. 9902, II-3, Appendix A). Following the latter, the terms “Standard” and “Recommended Practice” (SARPs) have the following meanings: a) Standard – any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or

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annexes to the chicago convention  133 regularity of international air navigation and to which Contracting States will conform in accordance with the Convention; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38 of the Convention; b) Recommended Practice – any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is recognized as desirable in the interest of safety, regularity or efficiency of international air navigation and to which Contracting States will endeavor to conform in accordance with the Convention. Therefore, while compliance with standards on the part of Member States is deemed “as necessary” in the interest of safety and regularity of international air navigation, the adoption of Recommended Practices is seen “as desirable.” On examining the Chicago Convention, Art. 38 states as follows: Any State which finds it impracticable to comply in all respects with any such International standard or procedure, or to bring its own regulations or practices into full accord with the International standard or procedure after amendment of the latter or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by and International standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the International standard. In the case of amendments to International standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixty days of the adoption of the amendment to the International standard, or indicate the action which it proposes to take.

Given the possibility, which has been recognized, of States departing from standards, the problem of the efficacy and nature of the standards has been much debated. Some doctrine holds that the contracting States are under no obligation to conform to such standards (and recommended practices); “they merely undertake to comply with them so far as they find it practicable to do so” (Shawcross Christopher Nyholm (1984), II 12–20). Other

parts of the doctrine state that, although the legal status of SARPs is debatable, “there is a conditional binding force,” given the need for States to notify differences (Mendes de Leon Pablo, (2017), p.259), while others again, save for a few exceptions, hold that there is no obligation by any contracting State to comply with SARPs (Lattanzi Flavia (1981), p. 252; Tomas Lisa (2012), p. 119). These exceptions pertain to the rules of the air for flights over the high seas where the rules in force shall be those established under the Convention (Art.12) and journey logbook requirements (Arts. 29 and 34). Finally, according to old but authoritative doctrine, (Malintoppi Antonio (1951), p. 281 ff.) the international standards are obligatory at the international level, as the Member States are bound to uniform their own legal system to said international standards. Nevertheless, the author points out that the tenor of Art. 38 clearly grants Member States a certain margin of discretion, when it comes to the full application of said standards; the limit of this margin, however, is in the obligation to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization (in relation to aircraft, personnel, airways, and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation (Art. 37)) and, more generally, in the principle of good faith, which must be followed by the States when establishing a line of action in complying with the Convention and its technical annexes. Two cases are foreseen in the Convention whereby failure to comply with standards on the part of an aircraft or by someone operating under license, which has to be notified in accordance with Art. 39, may lead to negative consequences regarding the use of said aircraft and the operability of said license. Art. 39, lett. (a) of the Convention states as follows: “a) Any aircraft or part thereof with respect to which there exists an international standard of airworthiness or performance, and which failed in any respect to satisfy that standard at the time of its certification, shall have endorsed on or attached to its airworthiness certificate a complete enumeration of the details in respect of which it so failed. b) Any person holding a license who does not satisfy in full the conditions laid down in the international standard relating to the class of license or certificate which he holds shall maria piera rizzo

134  elgar concise encyclopedia of aviation law have endorsed on or attached to his license a complete enumeration of the particulars in which he does not satisfy such conditions.” Such differences imply that aircraft or personnel so endorsed cannot participate in international navigation, except with the permission of the State or States whose airspace is entered. ICAO standards do not preclude the adoption of more stringent obligations on the part of States than those foreseen (e.g., safety, environment). In conclusion, once a standard has come into force at the international level, ICAO Member States, exercising the above‑mentioned margin of discretion and duly limited by the observation of the principle of good faith, are bound to uniform their own legal systems and regulations to the obligation stated above. The procedure followed for the adaptation of domestic legal systems is not uniform, not having been established at international level, but depends on the norms, generally constitutional, pertaining to the legal system of each State or jurisdiction.

IV. Monitoring Implementation of ICAO SARPs According to Doc. 9735, the Universal Safety Oversight Audit Programme (USOAP) Continuous Monitoring Manual, published in August 2011, as amended, ICAO Member States are required to ascertain the status of implementation of ICAO SARPs and identify any differences that may exist between national regulations and practices and the relevant provisions in the Annexes. In this framework the States shall compile and keep the so-called compliance checklists (CC) updated. Following Art. 90, EU 2018/1139 Regulation, the European Aviation Safety Agency (EASA) is expected to assist Member States in exercising their rights and fulfilling their obligations under international agreements when dealing with matters covered by this Regulation, above all rights and obligations under the Chicago Convention. The Agency may act as a Regional Safety Oversight Organization in the ICAO framework. Moreover, in cooperation with the Commission and Member States, the Agency should include and update as necessary the following information in the repository referred to in Article 74: (a) information on compliance with this maria piera rizzo

Regulation and the delegated and implementing acts agreed on the basis thereof and of the measures taken by the Agency under this Regulation with international Stand­ ards and Recommended Practices; (b) other information regarding the implementation of this Regulation, which is common to all Member States and relevant for ICAO monitoring of Member State compliance with the Chicago Convention and international Standards and Recommended Practices. The information will be used by Member States when implementing their obligations under Article 38 of the Chicago Convention and when providing ICAO information under the ICAO Universal Safety Oversight Audit Programme. Dealings between EASA and ICAO are subject to the ICAO USOAPCMA (Continuous Monitoring Approach) by virtue of a Working Arrangement on Continuous Monitoring Activities between EASA and ICAO agreed in July 2014. In this framework, EASA transmits the annual schedule of its Standardization Inspections and any amendments to ICAO as they become available. ICAO’s Safety Standards are of fundamental importance in the bilateral framework of the Air Services Agreements (ASAs). Compliance with these Standards is a prerequisite for an aircraft to exercise traffic rights under an ASA. Member States are obliged to ensure that these Standards are respected. In accordance with Article 33 of the Chicago Convention, certificates of airworthiness and certificates of competency and licenses issued or rendered valid by the contracting State in that the aircraft is registered shall be recognized as valid by the other contracting States, provided that the requirements under which such certificates or licenses were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to this Convention. It remains to be said that States may set higher standards for their own carriers, but not for foreign carriers.1 Maria Piera Rizzo

Note 1. See the case of the British carrier British Caledonian Airways Ltd v. Langhorne Bond, US Federal Aviation Administration and others (United States Court of Appeals, District of Columbia, Decision of 2 September 1981).

annexes to the chicago convention  135

References Ballarino Tito and Busti Silvio, Diritto aeronautico e spaziale (Giuffrè, 1988). Bartsch R., International Aviation Law, second edition (Routledge, 2020). Convention on International Civil Aviation, 7300/9. Huang Jiefang, Aviation Safety and ICAO, Doctoral Thesis (2009). ICAO, Assembly Resolutions in Force as of 28 September 2007, Doc. 9902. Lattanzi Flavia, Organizzazione per l’aviazione civile internazionale (ICAO), vol. XXXI (Giuffrè, 1981, 228–265). Malintoppi Antonio, Considerazioni sugli allegati tecnici alle convenzioni internazionali relative all’aviazione civile, in Rivista di diritto della navigazione (1951, 264–289).

Masutti Anna, Il diritto aeronautico, 3rd edition (Giappichelli, 2020). Mendes de Leon Pablo, Introduction to Air Law, tenth edition (Kluwer Law International BV, 2017). Milde M. International Air Law and ICAO, third edition, Essential Air and Space Law 18, series editor M. Benko (Eleven International Publishing, 2016). Pellegrino Francesca, Sicurezza e prevenzione degli incidenti aeronautici nella normativa internazionale, comunitaria ed interna (Giuffrè, 2007). Shawcross Christopher Nyholm, Shawcross and Beaumont Air Law, vol. 2 (Butterworth, 1984). Tomas Lisa, Chicago Convention (1944), in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (University Press Oxford, 2012).

maria piera rizzo

37. Arbitration in Aviation

designated the ICAO Council as their dispute settlement body, modeling themselves after the Bermuda Type 1 agreement. Modern bilateral ASAs have replaced ICAO in that role with ad hoc arbitration, usually with three arbitrators pursuant to which each Arbitration is a dispute resolution mechanism State designates one of two arbitrators, who that involves a neutral third party. Arbitrations then jointly select the third. According to can be conducted either institutionally, mean- Luping Zhang, who reviewed a sample of ing under the administration and rules of an 709 bilateral ASAs concluded from 1941 to established arbitral institution, or ad hoc, in 2022, the overwhelming majority of ASAs which case parties have more flexibility to (623 of 709) include arbitration clauses. select arbitrators and rules based on mutual No dispute has been referred to the ICAO agreement. Council for arbitration so far, but there have Article 84 of the Chicago Convention on been seven ad hoc arbitration cases. The first International Civil Aviation (1944), hence- case United States v. France [1963] concerned forth, the Chicago Convention, established traffic rights, specifically the interpretation of a three-stage process of dispute resolution the phrase “Near East” in one of two routes between parties: (1) negotiation, (2) deci- granted to the United States under the US– sion by the Council of the International Civil France ASA. France raised objections to Pan Aviation Organization (ICAO), and (3) appeal American (Pan Am) and Trans World Airlines to either an arbitral tribunal or the International (TWA) operating two routes to Turkey and Court of Justice (Article 84). At its inception, Iran, both via Paris. The arbitral tribunal conthe Chicago Convention’s dispute settlement cluded that the mention of Turkey in the other mechanism was recognized as the first major route meant it was not included, and for Iran, incorporation of arbitration into the field of rejected the argument of the United States that international conventions. A number of other “Near East” was synonymous with “Middle multilateral aviation treaties, such as the East.” Nonetheless, the tribunal found that Convention on Offences and Certain Other France had consented to the routes’ operation Acts Committed on Board Aircraft (Tokyo for several years and thus the airlines should Convention 1963), the Convention for the not be deprived of them. Suppression of Unlawful Seizure of Aircraft United States v. Italy [1965] involved (Hague Convention 1970), the Convention for all-cargo service. The US–Italy ASA perthe Suppression of Unlawful Acts Against mitted the transport of “passengers, cargo the Safety of Civil Aviation (The Montreal and mail” between the countries, and both Convention 1971), the Convention on the countries regularly operated all-cargo flights Marking of Plastic Explosives for Detection through their flag carriers. When Pan Am (The Montreal Convention 1991), and the and TWA requested an increase in frequency Convention on the Suppression of Unlawful for their cargo flights in 1963, Italy denied Acts Relating to International Civil Aviation their request. Shortly after, TWA announced (Beijing Convention 2010), contain the same it would use jet aircraft with an upgraded three-stage process. capacity, circumventing the need to increase The Chicago Convention does not con- frequency. This triggered a dispute, and arbitain a constitutional basis for settling dif- tration proceedings commenced after negoferences arising from bilateral agreements. tiations failed. Italy contended that all-cargo This matter was addressed in the first session flights were not permitted because the right of the ICAO Assembly in 1947. Resolution to carry passengers, cargo, and mail should A1-23 authorized the ICAO Council to act be interpreted as requiring flights to carry all as an arbitral body on any difference arising three. The arbitral tribunal rejected this argubetween States over matters of civil aviation ment by two to one, finding that under the submitted to it, when expressly requested to ASA, flights could carry passengers, cargo, or do so by all parties to the difference. After mail, since it had long been common practice the United States and the United Kingdom for both States to operate all-cargo flights. succeeded in reaching a bilateral air serUnited States v. France [1978] involved vices agreement (ASA) in 1946 for the first the legality of “change of gauge” operatime, commonly called the Bermuda Type tions and the United States’s countermeasure 1 agreement, several early bilateral ASAs under international law. Pan Am proposed 136

arbitration in aviation  137 “change of gauge” operations on a route from San Francisco to Paris via London whereby remaining passengers arriving in London would be transferred to a different aircraft with the same flight number destined for Paris. France objected on the basis that this practice was not permitted under the ASA, whilst the United States disagreed. French authorities repeatedly warned Pan Am and ultimately blocked passengers from disembarking. The United States requested expeditious arbitration and, as a countermeasure, threatened to suspend Air France’s lucrative route to Los Angeles via Montreal, but an agreement was reached about expeditious arbitration and the suspension was vacated just before it was to take effect. The arbitral tribunal ruled that the ASA had implicitly allowed change of gauge operations and that therefore France had wrongfully denied Pan Am’s service in the market. Belgium v. Ireland [1981] involved the capacity clause in the Belgium–Ireland ASA. The ASA did not predetermine capacity, merely specifying that it “shall be adapted to traffic needs” and for airlines to “take into consideration their mutual interests so as not to affect unduly their respective services.” Belgium argued that there was overcapacity in the market, and Ireland responded that there was not. After negotiations on the airline and State levels failed, a sole arbitrator, Henrik Winberg, was appointed for an expeditious resolution. He determined that there was overcapacity on the route and reduced weekly frequency from ten to seven. United States v. United Kingdom [1992] concerned the standard of conduct for regulatory authorities in supervising charges set by airport operators. The US–UK ASA of 1977 contained extensive provisions about user charges. Contracting parties were required to use their best effort to ensure user charges imposed by airport authorities on the airlines of the other party were “just and reasonable.” It was also the duty of each State to use their best efforts to encourage airports and authorities to exchange information to review the reasonableness of charges. The United States contended that landing and user charges were discriminatory and excessive — the most contentious point was the inclusion of weight as a factor in calculating peak period charges, which was announced by the British in 1977. This disproportionately

affected American transatlantic aircraft. The US government repeatedly requested information that might explain the costs but to no avail. An arbitral tribunal ruled two to one that the United Kingdom had not used its best efforts to ensure operators were setting “fair and reasonable” charges at Heathrow Airport between 1983 and 1989. The British raised the procedural issue of exhausting local remedies. Australia v. United States [1993] involved fifth freedom operations between Osaka and Sydney, and, in particular, the “primary objective” clause, which requires the traffic on a fifth freedom route to primarily be based on traffic going to or coming from the airline’s country of registry. Under the ASA, a US carrier was permitted to operate fifth freedom flights to Australia. Beginning in October 1991, Northwest Airlines was the designated airline to operate the New York– Osaka–Sydney route. It became apparent that the majority of passengers (80–85%) were Japanese traveling to Sydney with no connection to the United States because Osaka is geographically a distant detour from the natural route between the United States and Australia. Hence, the traffic was closer to the seventh freedom than the fifth freedom envisaged under the ASA, likely in breach of the “primary objective” principle. In light of this, Australia severely reduced Northwest’s Osaka–Sydney fifth freedom capacity. Arbitration commenced after negotiations failed. Because Northwest did not adhere to the restrictions, the Australian government suspended its right to fly Osaka–Sydney. In retaliation, the US government restricted Qantas’s LA–Sydney operation. To end the arbitration proceedings, the United States agreed to replace New York with Detroit on the route, reduce Osaka–Sydney fifth freedom traffic by half, and conclude a new ASA. European Union v. United States [2016] concerned Norwegian Air International’s attempt to create a new route under the EU–US open skies agreement. However, this Ireland-based airline’s application was opposed by US airlines and labor unions, so the permit was not approved by the US Department of Transportation. A confidential arbitration commenced with a sole arbitrator appointed for speedy resolution in December 2016. The dispute ended with the US government giving approval. jae woon lee

138  elgar concise encyclopedia of aviation law For disputes between non-State stakeholders in the industry such as airlines and passengers, aircraft lessors and lessees, aircraft manufacturers, and purchasers and financiers, the availability of arbitration depends on whether there is an arbitration clause in the relevant commercial contract. Aviation cases between private parties, which do not involve the application of ASAs or international conventions, may be resolved through litigation in domestic courts or arbitration as stipulated in the contract, or in private air law conventions, as to which see below. As for the aviation liability conventions, both the Convention for the Unification of Certain Rules Relating to International Carriage by Air of 1929 (commonly referred to as the Warsaw Convention) and the Convention for the Unification of Certain Rules for International Carriage by Air of 1999 (commonly referred to as the Montreal Convention) expressly provide for arbitration in cargo cases. Article 34 of the Montreal Convention provides that “the parties to the contract of carriage for cargo may stipulate that any dispute relating to the liability of the carrier under this Convention shall be settled by arbitration.” However, international airlines have not chosen to include an arbitration provision in their cargo contracts of carriage (air waybills). A reform of dispute resolution in international civil aviation through various institutional approaches might leverage the advantages of arbitration. One proposal is to enable institutional arbitration within existing institutions such as the ICAO, or in the context of the Shanghai International Arbitration Center (SHIAC), the Hague Court

jae woon lee

of Arbitration for Aviation, and similar institutions. Regardless, arbitration will continue to play an important role in the future of dispute resolution in international civil aviation. Jae Woon Lee

References Bae J, ‘Review of the Dispute Settlement Mechanism Under the International Civil Aviation Organization: Contradiction of Political Body Adjudication’ (2012) 4 Journal of International Dispute Settlement 65. Balfour J, ‘Arbitration in Aviation: The Ultimate Remedy?’ in The International Bureau of the Permanent Court of Arbitration (ed), Arbitration in Air, Space and Telecommunications Law: Enforcing Regulatory Measures (Kluwer Law International 2002) 81. Dempsey P S, ‘Flights of Fancy and Fights of Fury: Arbitration and Adjudication of Commercial and Political Disputes in International Aviation’ (2004) 32 Georgia Journal of International and Comparative Law 231. Milde M, International Air Law and ICAO (3rd edn, Eleven International Publishing 2016). Whalen T J, ‘Arbitration of International Cargo Claims’ (2009) 34 Air and Space Law 417. Zhang L P, ‘How Are Disputes Resolved under Bilateral Air Services Agreements? A Typology’ (2021) 12 Journal of International Dispute Settlement 151. Zhang L P, The Resolution of Inter-State Disputes in Civil Aviation (Oxford University Press 2022).

38. Aviation Emissions: The Global and EU Approaches

application and implementation of measures regarding the reduction of aviation emissions.

III. The EU ETS Regime

I. Introduction: The First Steps Aviation is performed by aircraft, which are moving assets. Moreover, they cross borders. Thus, it is critical to identify the legislative powers, both for rulemaking and enforcement. This problem is common to all facets of air transport. Preliminary worldwide steps were taken at the ICAO Assembly in 2007, when ICAO States adopted Assembly Resolution A36-22, forming the basis for a common strategy to reduce greenhouse gas (GHG) emissions,1 which are caused by civil aircraft. In February 2010, ICAO agreed to develop international Standards and Recommended Practices (SARPs) for CO2 emissions for inclusion in ICAO Annex 16 on Environmental Protection. The ICAO actions have to be read in light of the steps which the European Union (EU) had taken in the first two decades of the 21st century. In that period, the EU Commission has chosen a market-based trade mechanism in order to combat global warning as a consequence of aircraft emissions.2 The “permit to emit” greenhouse gasses should be made subject to an Emission Trade System (ETS), which is governed by EU Regulations.

II. The Global Dimension Global concerns about climate change were framed in the Kyoto Protocol,3 which was adopted in 1997. The Kyoto Protocol4 is attached to, and enlarged the scope of, the 1992 United Nations Framework Convention on Climate Change (UNFCCC) of 1992, henceforth also referred to as the UNFCC/ Kyoto regime. The Kyoto Protocol was approved by the EU.5 This regime obliges participating States to reduce GHG pursuant to the concepts of “common but differentiated responsibilities.” The Kyoto Protocol (1997) dictates that GHG emissions should be monitored by the International Civil Aviation Organization (ICAO).6 Thus, the UNFCCC/Kyoto regime requires States to work through ICAO for the

The EU Emissions Trading Scheme (EU ETS) is the largest multinational GHG cap and trading scheme. Emissions trading is designed to produce a reduction of emissions where the cost of the reduction is lowest, thus reducing the overall cost of tackling climate change. In the context of aviation, it puts a “cap” on the total GHG emissions allowed by the aircraft operators who are subjected to this regime. This cap is converted into tradable emission allowances. Hence, when airlines operate clean and increasingly cleaner aircraft while not increasing their frequencies, they may find themselves on the “seller’s” side. Airlines that cannot afford to, or do not find it opportune to, purchase new aircraft, will be on the buyer’s side, and they have to pay for their emissions. Such allowances are allocated to airlines on the basis of a combination of free allocation of free allowances, trading, and auctions. An airline is entitled to emit 1 ton of CO2 per allowance. In terms of enforcement, participating airlines are obliged to monitor and report their emissions each year and surrender enough emission allowances to cover their annual emissions. Airlines, whose emissions exceed the CO2 caps as determined by the EU ETS, must either limit their emissions, for instance, by flying less or using “cleaner” aircraft or purchase additional permits to emit CO2, either from undertakings that have a surplus of CO2 rights or via auctions organized by EU States. The EU ETS has been set up under EU Directive 2003/87, which applied to stationary industries, such as oil platforms and pharmaceutical industries, and not to moving assets, such as ships and aircraft. This is also why the UNFCC/Kyoto regime referred the management of GHG reductions in international air transport to ICAO. However, the EU perceived ICAO as a creeping rather than running solution for the GHG problem, because it operates on the basis of global consensus. Because the EU did not want to await global consensus, the EU ETS Directive 2003/87 was amended by EU Directive 2008/101 (the ETS Directive (2008)), so as

139

140  elgar concise encyclopedia of aviation law to include aviation activities in the scheme for GHG allowance trading within the Community.7 The EU had decided that, as from 1 January 2012, all flights arriving at or departing from an airport located in an EU State should be included within the scope of the ETS Directive (2008). Hence, not only flights within the EU but also a flight from a point in a third State, for instance, Seoul, overflying Russia to a point in the EU, for instance, Rome, are subject to the provisions of the amended ETS Directive. Under the Chicago Convention (1944), the performance of intra-EU flights is regarded as international flights, as they are executed between State parties to this convention. The EU is not a party, because only States can accede to it. Moreover, certain intra-EU flights, for instance, from Lisbon to Dublin, transit through the airspace above the high seas, coming under the exclusive jurisdiction of ICAO.8 As a corollary, the intra-EU/EEA flights may, as international flights, also be subjected to the regime, which has been set up by ICAO, as to which see the following sections.

IV. The ICAO CORSIA Regime In October 2010, the ICAO General Assembly adopted a Resolution following which ICAO’s leadership on environmental issues relating to international civil aviation, including the establishment of policies and regulations regarding the emissions of GHG was reaffirmed.9 It was also affirmed that certain matters relating to neutral carbon growth, the establishment of market-based mechanisms to combat climate change, and the de minimis exception exempting operators performing international air services below a specified threshold should be referred to the ICAO Council for further study. In 2010 and 2013, the ICAO General Assembly adopted a Resolution following which ICAO’s leadership on environmental issues relating to international civil aviation, including the establishment of policies and regulations regarding the emissions of GHG, was reaffirmed. This resolution also asserted that certain matters relating to neutral carbon growth, the establishment of market-based mechanisms to combat climate change, and the de minimis exception exempting operators performing international air services between a specified threshold should be referred to the ICAO Council for further study. pablo mendes de leon

Meanwhile, the reduction of GHG is governed by the Paris Agreement of 2015.10 This Agreement does not exclude aviation as such from its scope, as the Kyoto Protocol (1997) did, but ICAO continued its work in this area, and it prepared global arrangements, named CORSIA. In October 2016,11 the General Assembly of ICAO adopted a resolution for the establishment of Global Market-Based Measures (GMBMs) to offset CO2 emissions from international aviation and contribute to carbon neutral growth from 2020 onward. Thus, an increase of emissions ought to be offset as the emitting airline should buy and surrender emission units generated by activities carried out in other economic sectors that will reduce CO2 emissions. The scheme is also referred to as the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). In the first phase, from 2021 to 2026, 65 States, including 18 out of the top 20 “emitting” States, that is, the European countries, the United States, Canada, China, Japan, Singapore, Mexico, Australia, New Zealand, and Turkey, decided to participate on a voluntary basis. Apart from several small, land-locked, and developing States, participation will be mandatory in the second phase running from 2027 and 2035.12 Since 2018, new SARPs, including those on Monitoring, Reporting, and Verification (MRV), are in the process of being drawn up and included in Chapter IV of ICAO Annex 16 on the Environment. In October 2022, the ICAO Assembly resolved that States and relevant organizations will work together, through ICAO, to achieve an aspirational global fuel efficiency improvement rate of 2% per annum from 2021 to 2050, calculated on the basis of volume of fuel used per revenue ton kilometer performed. The Assembly also agreed that these goals would not attribute specific obligations to individual States, whereas the different circumstances, respective capabilities, and contribution of developing and developed States to the concentration of aviation GHG emissions in the atmosphere should determine how each State may voluntarily contribute to achieving the global aspirational goals. ICAO’s leadership in these matters was also confirmed. Not only market-based measures (MBM), but also “innovative aircraft

aviation emissions: the global and eu approaches  141 technologies, new types of operations conducive to emissions reductions, and sustainable aviation fuels (SAF), lower carbon aviation fuels (LCAF) and other cleaner energy sources” were mentioned as tools for achieving these environmental objectives. Recalling the Preamble of the Chicago Convention (1944),13 the “No Country Left Behind” mantra ought to be acknowledged.14

V. International Repercussions of the EU ETS In light of the policy measures and resolutions adopted by ICAO, the EU’s moves in the area of ETS have met with resistance. Third States argued that the EU ETS measures affect the level playing field between the aircraft operators, whereas the argument has also been made that the EU ETS legal framework infringes international law, in particular, provisions of the Chicago Convention (1944), ICAO resolutions, and Air Services Agreements (ASAs) providing for the maintenance of a level playing field between the concerned States. As a consequence of the international policy and regulatory considerations, the EU had to limit the scope of the ETS Directive of 2008 to intra-EU flights. The reach of this directive has raised questions with respect to the territorial jurisdiction of the EU and its Member States, especially under the Chicago Convention (1944). In December 2009, three major US airlines and the Air Transport Association of America (ATA) submitted a claim pertaining to the legality of the measures, questioning the compatibility of the EU ETS Directive (2008) with provisions of the Chicago Convention (1944) and ASAs between the United States and EU States. In a rather surprising, and not very convincing decision, the CJEU decided that Directive 2008/101 did not infringe international law, including provisions of the Chicago Convention (1944) and ASAs.15 Not only the United States but also other important trading partners of the EU and its Member States have criticized these proposals, which they consider as unilateral actions infringing international law.16 Confronted with the risk of a trade war on a global scale, and retaliation measures, the EU decided on 26 April 2013 to “stop the clock,” that is, to temporarily exempt international flights (ex-EU flights) from some

of the EU ETS obligations.17 The said decision temporarily suspends the inclusion of international flights from the EU ETS, while States attempt to agree on a global marketbased system to reduce aviation emissions at the International Civil Aviation Organization (ICAO). However, the full extent of the scheme remains in place for intra-EU flights whether they are operated by EU or by nonEU air carriers. Hence, for the time being, the scope of the EU ETS Directive is limited to the operation of intra-EEA flights only, that is, flights between airports located in the territory of EEA States.18

VI. EU Policy Objectives In December 2022, the EU determined that the current scope of the EU ETS to intra-EU/ EEA flights, whether operated by EU/EEA air carriers or third country air carriers, will be maintained until 1 January 2027. In July 2026, the EU Commission intends to evaluate the progress made with respect to CORSIA, including the establishment of substantive provisions (SARPs), participation of States, and enforcement by ICAO and States. The EU aims to subject flights to third States not applying CORSIA under the scope of the EU ETS as of 1 January 2027. The same is true for all flights to all third States if ICAO has not been able to enhance its CORSIA regime pursuant to the mentioned parameters. Other conditions pertain to: ●

●

●

●

●

●

a gradual phasing out of free allocations of emission rights for aircraft operations by 2026; a reservation of 20 million free allowances for aircraft operators increasing their use of Sustainable Aviation Fuels (SAFs); the establishment of a framework for monitoring, reporting, and verification (MRV) non-CO2 emissions as of 2025; the use of revenues from auctions for the simulation of new technologies; the derogation for flights from isolated areas in the EU; transparent publication of relevant data.19

VII. Concluding Remarks The protection of the environment is a complex subject of regulations as myriad interests, technical evolution, perceptions on climate pablo mendes de leon

142  elgar concise encyclopedia of aviation law change, economic repercussions, as well as policy and legal regimes are involved in it. It has a high-ranking topic on the agenda of EU policymakers. That prime concern must be matched with existing international law provisions laying down the interests of third States, which may think differently and set priorities in another order. The target of controlling emissions has by its nature more a global than a local character, as opposed to noise reduction, which has a distinctive local disposition. While the EU had to “stop the clock” in the second decade of the 21st century, it seems that it plans to go ahead with full speed in the third decade of this century. Whether the EU actions can be aligned with global directions is a question that will be answered in the years to come. Pablo Mendes de Leon

Notes 1. Especially CO2, but also Methane (CH4) and Nitrous oxide (N2O). 2. For ICAO, see the 33rd ICAO Assembly of 2001 endorsing the “development of an open emissions trading system for international civil aviation,” and for the EC Commission, see Communication COM(2005) 459 Reducing the Climate Change Impact of Aviation. Since 2003, EASA is responsible for the certification of aircraft in the EU and for some European non-EU States. 3. It has 192 parties per February 2023. 4. See https://unfccc​.int​/ kyoto​_protocol. 5. See Council Decision 2002/358. 6. See Art. 2.2. “The Parties included in Annex I shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively.” 7. Including the States taking part in the European Economic Area (EEA), that is, Norway, Iceland, and Lichtenstein. 8. See Art. 12 of the Chicago Convention. 9. ICAO Resolution A37-17/2 containing a Consolidated Statement of continuing ICAO Policies and Practices related to Environmental Protection – Climate Change. 10. https://unfccc​.int ​/sites​/default ​/files​/english ​_ paris​ _agreement​.pdf.

pablo mendes de leon

11. See U. Erling, International Aviation Emissions Under International Civil Aviation Organization’s Global Market Based Measure: Ready for Offsetting? 42(1) Air & Space Law 1–12 (2017); R. Abeyratne, Climate Justice and COP21 – The Aviation Perspective, 65(2) Zeitschrift für Luftund Weltraumrecht 192 (2016), and F. Gaspari, Aviation and Environmental Protection after the 2015 Paris Agreement: From Regulatory Unilateralism Toward International Cooperation, 15(2) Issues in Aviation Law and Policy (2016). 12. See ICAO, Resolution A39-3 (2016): Consolidated Statements continuing ICAO policies and practices related to environmental protection – Global Market-based Measure (MBM) scheme; see also, H. Hameed, Cutting Global Aviation Emissions – How Important is a Global Market Based Measure in Mitigating Aviation’s Carbon Footprint? 63 Zeitschrift für Luft- und Weltraumrecht 518 (2014). 13. “Therefore, the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically.” 14. See, A41-21: Consolidated statement of continuing ICAO policies and practices related to environmental protection – Climate change, and A41-22: Consolidated statement of continuing ICAO policies and practices related to environmental protection – Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). 15. See CJEU in Case C‑366/10, Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United Airlines Inc. v. Secretary of State for Energy and Climate Change, decision of 21.12.2011. 16. See Pablo Mendes de Leon, Enforcement of the EU ETS: The EU’s Convulsive Efforts to Export its Environmental Values, 37(4/5) Air & Space Law 287–306 (2012) and B. F. Havel and J. Q. Mulligan, The Triumph of Politics: Reflections on Judgment of the Court of Justice of the European Union Validating the Inclusion of Non-EU Airlines in the Emissions Trading Scheme, 37(1) Air & Space Law 3–33 (2012). 17. See EU Decision 377/2013, and EU Regulation 2014/2014 amending Directive 2003/87 in view of the implementation by 2020 of an international agreement applying to a single global market-based measure to international aviation emissions. 18. EEA States are the 27 EU States plus Norway, Iceland and Lichtenstein. 19. https://euagenda​.eu​/news​/803051.

39. Aviation Insurance I. Spreading of Risk A fundamental characteristic of commercial aviation insurance is spreading the risks of unforeseen or unexpected future events that the insured passes onto the insurer through the payment of a premium. Because no single insurer has the financial ability to retain the large financial risks attendant to, for example, the operation of aircraft by a major airline or product liability exposures of aerospace manufacturers, commercial aviation risks typically are spread among different underwriting entities. Spreading the risk can be accomplished in multiple ways, the most traditional of which is through a “subscription business,” sometimes referred to as a “subscription risk,” whereby a number of insurers each take a share of the risk. Risk also can be spread through placement with a single or multiple insurers who then spread the risk through reinsurance. Lloyd’s of London, the birthplace of the aviation insurance market, is a subscription market for large commercial risks, with such risks being subscribed or written by Lloyd’s syndicates as well as companies in the London insurance market or internationally. Another common way to spread risk in the aviation market is by way of pooling arrangements. A pooling arrangement involves a pool of member companies consisting of insurers and reinsurers that collectively subscribe to a risk. Typically, the pool is managed by a company, which may or may not be an insurer itself, that underwrites on behalf of the member companies within the pool. Each insurer that underwrites a portion of the risk enters into a separate contract of insurance with the insured. Notwithstanding this, commercial aviation insurance policies typically have a “lead” insurer that acts on behalf of the following market insurers. The lead insurer’s authority is limited in that it generally cannot make decisions that would materially change the contractual terms on which the following market has agreed to participate in the risk.

II. Common Types of Commercial Aviation Insurance

multitude of risks assumed by stakeholders (e.g., airlines, manufacturers, airports, etc.) in the industry. The most common types of coverages include: (1) hull insurance; (2) passenger liability insurance; (3) third-party liability insurance; (4) products liability insurance; and (5) airport operations liability insurance. Below is a brief overview of each. 1. Aviation Hull Insurance Aviation hull insurance is designed to protect the insured owner or operator of an aircraft against physical loss of or damage to that aircraft, including the engines and other components, due to risks such as fire, theft, and collision. In airline policies, the obligation of the insurers often is expressed in the form of a general undertaking to cover the insured against “all risks” of loss, except those specifically excluded in the policy. In the event of an accidental loss of or damage to aircraft arising from covered risks (non-excluded risks in the case of all risks policies), the insurers usually undertake, “at their option,” to pay for, replace, or repair the aircraft or its damaged components. The “at their option” language in an aviation hull policy is intended to preclude the insured from abandoning the aircraft in order to claim and recover a total loss. Coverage also generally includes disappearance if the aircraft is unreported for a specified period of time after the commencement of flight. Many hull policies exclude coverage for damage or loss caused by gradual deterioration, breakdown, defect, or failure in any “unit,” generally defined as a part or assembly of parts, of the aircraft. Another common exclusion is for damage to any unit caused by anything having a progressive or cumulative effect, which is designed to address the problem of ingestion. However, there is an exception to these exclusions where the excluded perils cause an accident resulting in damage to the aircraft. The effect of these exclusions is to preclude coverage for ordinary wear and tear and the type of deterioration that inevitably takes place as a result of the normal use of insured aircraft. Aircraft engines are normally insured as part of the aircraft on which they are installed. An airline hull policy may contain special coverage provisions applicable to removed engines and spare parts or separate spares coverage may be obtained.

2. Passenger Liability Insurance There are numerous types of commercial Commercial airlines are legally required aviation insurance policies covering the to carry accident liability insurance to 143

144  elgar concise encyclopedia of aviation law compensate passengers or their next of kin, for bodily injury and property damage sustained as the result of the airline’s operations. In general, this type of passenger liability insurance requires the insurers to pay on behalf of the insured airline all sums which the insured shall become legally liable to pay as damages arising from “bodily injury” or property damage caused by an “occurrence” and arising out of or in connection with the insured’s operations. In the commercial aviation insurance context, “bodily injury” generally includes physical injuries, as well as sickness, death, shock, and mental anguish. This phrase generally does not include claims for false arrest, malicious prosecution, defamation, libel, and slander, which are dealt with separately under coverage for “personal injury.” Airline policies frequently define “occurrence” as “an accident, happening or event or a continuous or repeated exposure to conditions occurring during the policy period which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Coverage is usually provided for such bodily injuries sustained while the passenger is entering onboard, or alighting from the aircraft. Passenger liability policies may also cover the legal liability of the insured for the negligence of its employees, as well as the personal liability of such employees, while acting in the course of their employment and within the scope of their authority for their airline employer. Pursuant to the US Family Assistance Act of 1996, 49 U.S.C. § 4113, and the US Foreign Air Carrier Family Support Act of 1997, 49 U.S.C. §41313, airlines are required to take certain actions to address the needs of families of passengers involved in major aircraft accidents, including the creation of family assistance plans. As a result of these requirements, passenger liability policies frequently include provisions whereby insurers agree to indemnify the insured airline for “all reasonable expenses incurred arising out of the requirements of the U.S. Family Assistance Act or Foreign Air Carrier Family Support Act as applicable and/or other similar acts of government regulations that are or may become applicable to airlines.” These provisions formalized the prior practice of insurers paying such expenses as an accommodation to their insureds. katherine b. posner and mary dow

In 2004, Member States of the European Union adopted legislation establishing minimum insurance requirements for air carriers and aircraft operators with respect to liability for passengers, baggage, cargo, and third parties. EU Regulation (EC) No 785/2004 requires airlines operating in Member States to carry a minimum amounts of liability insurance (on a per passenger or per kilogram basis) and states that the insured risks must include “acts of war, terrorism, hijacking, acts of sabotage, unlawful seizure of aircraft and civil commotion.” Air carriers and operators must establish that their insurance policies meet the statutory requirements by submitting their insurance certificate or other evidence of valid insurance to the relevant authorities. 3. Third Party Liability Insurance Third-party liability insurance protects the insured against liability to third parties, other than passengers, who may sustain damage or injury, including death, as a result of the operation of the insured’s aircraft. In this regard, insurers generally undertake to indemnify the insured for all sums that the insured becomes legally liable to pay as damages in respect of bodily injury, whether fatal or otherwise, and damage to property caused by the insured aircraft or by any person or object falling from an insured aircraft. Exclusions commonly found in aviation third-party liability policies relate to claims for injuries, death, or losses sustained by employees, directors, and partners of the insured while acting in the course of their employment with or performing their duties for the insured; members of the flight, cabin and other crew while engaged in the operation of the aircraft; passengers; and loss of or damage to property belonging to or in the care, custody, or control of the insured. Most policies also exclude claims directly or indirectly occasioned by noise, whether audible to the human ear or not, vibration, sonic boom, and associated phenomena unless caused by or resulting in a crash, fire, explosion, or recorded in-flight emergency, necessitating abnormal operation of the aircraft. Additionally, policies generally will include a similarly worded exclusion and exception with respect to claims directly or indirectly occasioned by, happening through, or in consequence of pollution and contamination of any kind whatsoever.

aviation insurance  145 4. Products Liability Insurance Aviation products liability insurance covers the legal liability of aircraft product manufacturers to third parties for injury, including death or disease, and property loss or damage arising out of the defective design or manufacture of aircraft products, the supply of defective materials, and the failure to warn of potential harm that might flow from the use of aircraft products. The term “aircraft products” generally includes aircraft, component parts, instruments, and any ground support or control equipment used in connection with aircraft, as well as tools used in the manufacturing process. Generally speaking, products liability coverage offers protection from liability for damages arising out of the use of goods or products manufactured, sold, serviced, distributed, or supplied by the insured. The “products” in question may extend to services, training, and handling that the insured provides to the aircraft purchaser or operator. Products liability coverage applies only to goods or services that are no longer in the possession of the insured manufacturer and/or have been completed by the service provider. Aviation products liability policies indemnify the insured for damages because of bodily injury, including disease and death resulting from such injury or disease, and damage to or destruction of property, caused by an occurrence that takes place during the policy period and “arises out of” the products hazard. The “arising out of” requirement for coverage has been broadly construed by courts. Unlike the concept of “proximate cause” that applies to negligence claims, there is no particular standard of causation that an insured must satisfy in order to seek coverage. Such policies frequently provide grounding coverage as well. The grounding liability cover provides that the insurers will pay on behalf of the insured all sums that the insured becomes legally obligated to pay as damages for the loss of use of completed aircraft occurring after delivery to and acceptance by a purchaser or operator for flight operations. Traditionally, grounding clauses were drafted in fairly restrictive terms, resulting in few covered claims. However, the realities of grounding events in recent years prompted revisions to the model language used in grounding clauses. The model language now defines “grounding” to mean “a withdrawal

from all flight operations of a Certified Aircraft imposed by an airworthiness directive or mandatory order,” which is issued by an aviation regulatory authority because of an “existing, alleged or suspected condition affecting the safe operation” of the aircraft and prohibits flight operations for a minimum period of time. Grounding coverage has typically been occurrence-based, meaning that the grounding must result from an occurrence during the policy period and arise out of a products hazard for there to be coverage. However, underwriters now offer nonoccurrence grounding coverage as well. Nonoccurrence grounding coverage still requires the issuance of an airworthiness directive or mandatory grounding order, and coverage begins on the date the first airworthiness directive or mandatory grounding order takes effect. Non-occurrence grounding coverage excludes claims arising from aircraft grounded as the result of the insured’s conduct, such as the insured’s failure to timely fulfill its contractual obligations or the failure or a product furnished by the insured. 5. Airport Operations Liability Insurance Airport operations liability insurance covers the liability of entities that operate and provide facilities at airports. The liabilities of airport operators can be divided into three broad categories for insurance purposes: (1) airport premises liability; (2) products-type liability; and (3) hangarkeepers liability. A comprehensive policy may cover all three categories of risk. Premises liability insurance typically protects the insured from liability for bodily injury or property damage occurring in or about the premises specified in the policy schedule as a direct result of the services provided by the insured in connection with the business or operations specified, the fault or negligence of the insured, or a defect in the insured’s premises, ways, works, machinery, or plant used in the insured’s business. Coverage generally is excluded for property owned, leased, or occupied by the insured; or while in the care, custody, or control of the insured; or while being handled, serviced, or maintained by the insured. However, vehicles on the insured’s premises that are not the property of the insured are deemed to be covered. Such policies also tend to exclude katherine b. posner and mary dow

146  elgar concise encyclopedia of aviation law liabilities arising out of air meets, air races, or air shows and the construction, demolition or alteration of buildings, runways, or installations carried out by the insured or its contractors or subcontractors, except for normal maintenance operations. Products-type liability insurance covers the liability of airport owners and operators and other entities that provide maintenance, service, repair, and refueling facilities and supply aircraft parts at an airport. Such policies usually exclude damage to the insured’s property or to property within the insured’s care, custody, or control; the cost of repairing or replacing any defective goods or products or parts thereof; loss arising from improper or inadequate performance, design, or specification (with bodily injury or property damage arising therefrom excepted from this exclusion); and loss of use of any aircraft not lost or damaged in an accident (effectively, a grounding exclusion). Hangarkeepers liability insurance is essentially coverage for bailment liabilities. The policies cover loss of or damage to aircraft or aircraft equipment not owned, rented, or leased by the insured, while such aircraft or equipment are on the ground and in the care, custody, or control of the insured, or while

katherine b. posner and mary dow

being serviced, handled, or maintained by the insured or its employees. Liability coverage is also available to third‑party service providers that perform various functions at airports, such as ground handling, baggage handling, cargo handling, catering, cleaning, check-in services, and airbridge operations. Ground handler liability insurance provides coverage of risks associated with the airside handling of aircraft, which includes ramp turnaround, baggage handling, aircraft cleaning, and aircraft marshaling. Katherine B. Posner and Mary Dow

References Aviation Insurance Clauses Group, Model Clauses (available at http://www​.aicg​.co​.uk​ /AICG​/ Products​/AICG​_Web​/AICGClauses​ .aspx​ ? hkey​ = bd281ff7​ -2eca​ - 43b1​ - 98e7​ -939579502450) (last accessed 25 April 2022). Julian Burling, Lloyd’s: Law and Practice 5 Informa Law from Routledge (2013). Katherine B. Posner, Tim Marland, and Philip Chrystal, Margo on Aviation Insurance Lexis Nexis (4th ed. 2014). Peter J. C. Viccars, Aviation Insurance: A Planeman’s Guide, Witherby Insurance & Legal (2nd ed. 2012).

40. Aviation Law I. Sources of Aviation Law The sources of air law and aviation law are multiple. They include international law and practice, bilateral and multilateral agreements, European Union (EU) law and practice, national law and jurisprudence, jurisprudence of the European Court of Justice, international and State regulations, as well as decisions of national courts, among others. The state of the law is therefore complex and requires considerable research to render proper advice. Issues can be resolved by reference to the laws of the States involved, which invariably will have adopted under their legislation various international or regional provisions and instruments.

II. International Law The Chicago Convention (1944) on International Civil Aviation constituted a catalyst in the development of the law. It entered into force on 4 April 1947. The main four parts of the Convention are: (a) Part I, air navigation with chapters on nationality of aircraft, flights over the territory of contracting States, measures to facilitate air navigation, conditions to be fulfilled with respect to aircraft, and international Standards and Recommended Practices; (b) Part II, the International Civil Aviation Organization; (c) Part III, international air transport, including airport and other navigation facilities; and (d) Part IV, final provisions on disputes and default, and other agreements and arrangements. The Convention has numerous protocols and annexes, standards, and recommended practices of the Council. The annexes are of a technical content, covering subjects such as personnel licensing, rules of air, meteorological services, aeronautical charts, units of measurement, operation of aircraft, nationality and registrations marks, airworthiness, facilitation, telecommunications, air traffic, search and rescue, accident and incident investigation, aerodromes, information services, environmental protection, security, transport of dangerous goods, and safety management. Other incidental agreements were also signed in Chicago, such as IATA (International Air Transport Agreement),

relating to freedoms of the air and the IASTA (International Air Services Transit Agreement) again in relation to freedoms of the air. Multilateral agreements include the Paris Agreement (1956) on Commercial Rights of Non-scheduled Air Services in Europe, the Paris Agreement (1960) on Certificates of Airworthiness of Imported Aircraft, the Tokyo Convention (1963) on Offences and Certain Other Acts Committed on Board Aircraft, the Hague Convention (1970) for the Suppression of Unlawful Seizure of Aircraft, the Montreal Convention (1971) for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the Montreal Protocol (1988) for the Suppression of Unlawful Acts of Violence in Airports, the Beijing Convention (2010) on the Suppression of Unlawful Acts Relating to International Civil Aviation and its Protocol for Unlawful Seizures, the Montreal Protocol (2014) to amend the Convention on the Offences and Certain Other Acts Committed on Board Aircraft. A number of other international conventions provide for Tariffs for Scheduled Air Services, Paris Multilateral Agreement (1967), replaced by the Paris Agreement (1987) and for sharing of capacity on IntraEuropean Scheduled Air Services, Paris Capacity Agreement (1987). Air carrier liability was, and still is, in part, the 1929 Warsaw Convention providing for a compensation regime for air carrier liability in the event of accidents. It was amended by The Warsaw Convention (1955) to raise the limit of liability. New amendments were carried out by the Guadalajara Convention (1961) in order to regulate the liability of the contractual air carrier in relation to that of the actual air carrier. Four Montreal Protocols (1975) amended further the regime introducing Special Drawing Rights (SDRs). These instruments make up the “Warsaw regime.” In 1999 the Convention for the Unification of Certain Rules for International Carriage by Air was signed and is intended to modernize the Warsaw regime. It came into force on 4 November 2003. It increased carrier liability. Under this Convention, there is unlimited liability in the event of death or injury to passengers, increased liability limits in the event of delay, and an obligation for air carriers to take out insurance. Air carriers are strictly liable for proven damages up to 100.000 SDRs.

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148  elgar concise encyclopedia of aviation law For claims in excess of 113.000 SDRs (around €125.000 in 2019) the air carrier may prove no negligence on the passenger’s behalf. Air carrier liability for passenger delay is limited to 4694 SDRs (around €5.100) and for baggage delay 1131 SDRs (around €1.230), for destruction, loss, or damage to baggage, the same. The Rome Convention regime (1933 and 1952) covers liability of foreign aircraft to third parties on the ground. The Montreal Protocol (1978) and the 2009 Convention on Compensation for Damage to Third Parties expand further this regime on third-party air carrier liability. So far, these instruments have little relevance in practice. Concerning the rights in aircraft, the Geneva Convention (1948) deals with ownership financing, leasing, and mortgages of aircraft, seizure, liens priorities, and forced sales. The Convention on International Interests in Mobile Equipment/Protocol, that is the Cape Town Convention (2001), and its Protocol on Aircraft Equipment (2001) took effect 1 March 2006. As of April 2006, the Protocol had 65 contracting parties, including the European Union. The Convention recognizes an International Registry as an additional electronic registry for registration of all types of interests in an aircraft. The Convention provides a platform relating to the acquisition and financing of international mobile assets, e.g., engines for example.

III. Aviation Institutions The main institutions in the field are the following: 1. International Civil Aviation Organization, ICAO is a specialized agency of the United Nations for the codification of principles and techniques; 2. International Air Transport Association, IATA is a trade organization of scheduled airlines, pricing agreements, negotiating airport charges of safety, environment, and tariffs; 3. European Civil Aviation Conference, ECAC/CEAC, is an intergovernmental organization entrusted with harmonization of policies and practices. It focuses on safety, security environment, training, economics, and external relations. christos clerides

It works closely with the European Commission and EUROCONTROL; 4. Joint Aviation Authorities, JAA, includes mainly EU Member States, which coop­ erate on matters of airworthiness, safety, fair competition, and cost efficiency; 5. EUROCONTROL. The EUROCONTROL Convention was signed in and works from Brussels to establish a single European Sky. Its ratione materiae is cooperation for the safety of air navigation. The EU is a member. It has 41 members; 6. European Aviation Safety Agency, EASA, is an agency of the EU. It is a regulatory body for matters concerning aviation safety, environment protection, certification, and the single market.

IV. European Union Law Articles 100(2), 288, 289, 293–300 of the TFEU, inter alia, allow for the adoption of EU legislation. EU Regulation 1008/2008, amended by Regulations 2018/1139, 2019/2, 2020/696, provides for the common rules for the operation of air services in the EU. It sets down the rules on substantial ownership and effective control, on the licensing of air carriers, which must be in the hands of EU States or their nationals, and the location of the principal place of business in the State granting the Operating License. Carriers must be equipped with a technical licence, an Air Operators Certificate (AOC). The general rules of the EU Treaty in the field of competition apply to air transport. They do not apply to Air Navigation Service Providers. The EU competition rules are applied extraterritorially, see case 66/86, Ahmed Saeed Flugreisen, ECR00803 (1989). See also EU Council Regulation 487/2009 and Regulations 2019/712 and 868/2004. The State Aid EU law regime is also applicable in the field. EU Regulation 139/2004 on mergers is applicable to airline mergers. Matters of safety are mainly covered by the European Aviation Safety Agency, supra and Regulations EC No 216/2008, 2018/1139. Blacklisted aircraft are covered by EC Reg. No 2111/2005. Security matters are mainly covered by the EU Regulation 300/2008 on common rules in the field of civil aviation security. The protection of data regime is also

aviation law  149 applicable. Passenger name records are not normally revealed to third countries. Bilateral agreements may regulate the matter. Airport charges are governed by Directive 2009/12. Regulation 95/93 as amended 793/2004 provides for slot allocation. Ground handling services are regulated by Council Directive 96/67/EC intended to remove existing monopolies. Air Traffic Management is governed by the Single European Sky (SES) regime of Regulation 1070/2009 and Regulation EC 1108/2009 and EU Regulation 2150/2005, 2096/2005. See also Regulation EU 973/2017 amended by EU Reg. 2020/469. Member States must have a National Supervisory Authority. Concerning environment protection, EU law provides for control of noise and emissions. Directive 2002/50/EC provides for the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at EU airports. It was replaced by Regulation 548/2014, which provides for rules and procedures with regard to the introduction of noise-related operating restrictions of EU airports with a balanced approach. Directive 2022/49/EC provides for the introduction of operating restrictions. See also Directive 2008/101/EC amending Directive 2003/871/ EC. Member States must designate an independent responsible authority. In the field of emissions, the EU intervened with Directive 2008/101/EC regulating greenhouse gas emissions. Also, aviation bilateral agreements must conform with EU law and adapted accordingly. The EU Commission entered into Open Skies Agreements with other countries, e.g., the United States, Canada, and Brazil, and with neighboring countries, e.g., European Common Aviation Area, ECAA, with States in southeastern Europe, including the Balkan States. The EU has intervened in the field of consumer protection by adopting measures on compensation and assistance for passengers in the event of delayed boarding and of cancellation or long delays of flight, Regulation EC 261/2004. Depending on the distance between port of embarkation and destination and intra-community or not flights, compensation varies from Euro 250 to 600. It is coupled with meals, refreshments, hotel accommodation, reimbursement of the ticket, and in some cases rerouting. Delays range from two hours to four depending on distance and intra-community or not flights. The rights of disabled persons and persons

with reduced mobility when traveling by air are protected by Regulation EC 1107/2006. Unmanned aircraft systems are governed by Commission Regulation EU 2019/945, 2020/1058, 2019/947, 2020/639, and 2020/746. Contracts for travel packages are also governed by Directive 2015/2302. Regulation EU No 376/2014, 996/2010 governs matters of reporting and investigating incidents and accidents. Pilots’ regime is governed by EC Regulation 1178/2011 and engineers licensing by Commission Regulation 1321/2014.

V. National Laws States invariably have their own national legislation, that is, the national air code. Specific pieces of legislation govern specific issues coupled with subsidiary legislation and directives and circulars. Most States have acceded to the major international aviation conventions and have entered into numerous bilateral Air Services Agreements. Within the national jurisdiction, judgments of the national courts determine disputes relating to passenger, cargo, luggage, personal injuries, death, property claims, disputes as to ownership of aircraft charges, mortgages, and liens for which national provision is made. International Conventions may be directly applied or may need to be incorporated into national legislation. Jurisprudence of other countries may be used as guiding reference. Members of the European Union are bound by the judgments of the European Court of Justice at Luxembourg and are bound by Regulations of the EU, which are directly applicable with superior force of law. Directives have to be implemented by national legislation, although in some cases they may be directly applicable or have direct effect.

VI. Conclusion Aviation law is a specialized field of international law that requires specific and detailed study. Its complexity stems chiefly from the multiplicity of its sources, including international and national laws and practices. Detailed and complex regulations exist for all its aspects. Difficult issues of private international law often arise as to the applicable set of rules, both national and international, as well as forum choice. Christos Clerides christos clerides

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References The Aviation Law Review, The Law Reviews, Ninth Edition, Editor Sean Gates. Introduction to Air Law, Wolters Kluwer, Tenth Edition, Pablo Mendes de Leon. Essential Air and Space Law 22, Eleven International Publishing, Dick Van Het Kaar International Comparative Legal Guides Aviation Law 2022, GIG Global Legal Group, 10th Edition, Alan D. Meneghetti RadcliffesLeBrasseur LLP, Philip Perrotta K&L Gates LLP The Law of the Air, Stevens & Sons, Third Edition, Lord, McNair, Q.C., D.C.L., LL.D. Aircraft Leasing and Financing, Tools for Success in International Aircraft Acquisition and Management, Elsevier, Vitaly S. Guzhva, Sunder Raghavan, Damon J. D’Agostino. Aircraft Operating Leasing, A Legal and Practical Analysis in the Context of Public and Private International Air Law, Wolters Kluwer, Second Edition, Donal Patrick Hanley.

christos clerides

The Principles and Practice of International Aviation Law, Cambridge, Brian G. Havel & Gabriel S. Sanchez. Flying in the Face of Criminalization, The Safety Implications of Prosecuting Aviation Professionals for Accidents, Ashgate, Sofia Michaelides-Mateou, Andreas Mateou. International Aviation Law, A Practical Guide, Routledge Taylor & Francis Group, Second Edition, Professor Ron Bartsch. International and EU Aviation Law, Selected Issues, Wolters Kluwer, Edited by Elmar M Giemulla and Ludwig Weber. Routledge Handbook of Public Aviation Law, Routledge Taylor & Francis Group, Edited by Paul Stephen Dempsey and Ram S.Jakhu. European Aviation Law, Kluwer Law International, Paul Stephen Dempsey. A Handbook on Aviation Law, ABA American Bar Association, George McKeegan, William Ranieri. EU Legal Framework for Safeguarding Air Passenger Rights, Springer, Francesco Rossi Dal Pozzo.

41. Aviation Reinsurance Aviation insurance means the provision of insurance or reinsurance cover with respect to (1) manufacture, sale, leasing, ownership, or operation of aircraft and spacecraft; (2) the carriage of passengers or cargo by air; and (3) the provision or operation of airports, air navigation, air traffic, ground handling, maintenance, repair, or any other services relating to aircraft. Aviation reinsurance is the business and practice of insuring insurance companies against losses they incur by paying insurance indemnity to their own insured, called the “original insured,” under insurance contracts covering aviation risks. By purchasing reinsurance, the insurance company cedes some or all of the risk that it carries under insurance policies issued to its own insured to the reinsurer. For this reason the reinsured is sometimes called the “cedant.” An aviation reinsurance contract is a contract in which the reinsurer promises to compensate the financial loss of the cedant, if the cedant pays insurance indemnity to their original insured, within the term of the reinsurance contract. In consideration for the protection obtained by the reinsurance contract, the cedant is obliged to pay a reinsurance premium.

I. Basic Functions of Reinsurance Protection from losses is not the only function of reinsurance. The amount of total risk that a prudent insurer can take on is limited by its capital, retained earnings, and reinsurance coverage. By purchasing reinsurance, an insurer can sell more insurance and take on higher risks than what would be possible only by its own capital and retained earnings. It protects the insurer against catastrophic losses arising from a single loss, such as natural disasters. It enables the insurer to offer insurance in countries where it is not licensed to conduct business, through local licensed insurers. From the point of view of the original insured, it significantly reduces the risk of default and insolvency by the insurer. 1. Treaty Reinsurance and Facultative Reinsurance There are two basic types of reinsurance: One is treaty reinsurance, where a reinsurer agrees

to pay reinsurance indemnity to the cedant for its losses arising from all or certain defined groups of risks. For example, a reinsurance contract may cover all aviation policies sold by the cedant within a certain period, without identifying each and every policy. Treaty insurance is sometimes called “obligatory reinsurance” because the parties are not at liberty to exclude individual policies from the treaty. The reinsurer is obliged to take on risks by all policies within the scope of the treaty, issued by the reinsured. Likewise, the reinsured is obliged to cede risks from all policies they issue within the scope of the treaty. The other basic type of reinsurance is facultative reinsurance, where a reinsurer agrees to pay reinsurance indemnity to the cedant for its losses arising from an individually identified primary insurance policy or policies. Facultative reinsurance is sometimes called “optional reinsurance.” As distinct from treaty reinsurance, the reinsured is at liberty whether or not to cede an individually identified risk (and premium) to the reinsurer, and the reinsurer is likewise at liberty whether or not to reinsure a specific primary policy.

II. Proportıonal Reinsurance and Excess of Loss Reinsurance In proportional reinsurance, the reinsurer is obliged to pay reinsurance indemnity covering a certain percentage of all losses incurred from primary insurance contracts. The percentage is agreed in advance and it applies to premiums earned, as well as risks shared. The reinsurance indemnity payable is limited to the “gross limit.” Any losses exceeding the share of the reinsurer in the gross limit are not reinsured. In non-proportional or excess of loss (“XL” of “XoL” in industry parlance) reinsurance, the reinsurer is obliged to pay reinsurance indemnity for losses exceeding a pre-determined amount, which is called the “retention.” Retention is the aggregate amount of losses that the cedant must bear before the reinsurance contract kicks in and starts indemnifying the cedant for losses which exceed the retention. The reinsurance indemnity payable will be limited to the “cover limit,” any losses exceeding the cover limit are not reinsured. In both proportional and excess of loss reinsurance, it is possible for the cedant to purchase excess of loss reinsurance for losses that may exceed the gross limit or cover limit. This is called “layering.”

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III. Retrocession

V. AVN Clauses

Retrocession is insurance for reinsurers. Just like insurers insure their own risks arising from underwriting primary insurance, reinsurers can insure their own risks arising from reinsurance, with other reinsurers. This spreads risk further and deeper among several reinsurers, so that it becomes less and less likely for a single insurer or reinsurer to suffer crippling losses from a single catastrophic event, or coincidental aggregation of multiple ordinary losses occurring within a short time. If care is not taken, retrocession can be propagated until a reinsurer reinsures its own policy, so prudent reinsurers make sure they have internal compliance processes to avoid issuing retrocession policies in which they already have an underlying risk.

“AVN” is not an acronym; it is a designation by the Aviation Insurance Clauses Group (AICG). AVN clauses are standardized, optional clauses developed by AICG and widely used by aviation insurers and reinsurers. AICG was established in 2005 by the Lloyd’s Market Association and the International Underwriting Association of London. Often, policies incorporate these clauses by reference without reciting them in their entirety. These clauses simplify reinsurance policy negotiation and provide a standard frame of reference and transparency for insurance buyers, brokers, insurers, and reinsurers. A full list of these clauses are accessible on the AICG website www​.aicg​.co​ .uk. Some of the clauses that are characteristic of aviation reinsurance and have widespread application in case of loss under reinsurance policies are summarized below:

IV. Fronting Fronting is an arrangement where an insurer issues a policy to cover risks underwritten or otherwise managed by another insurer and cedes the entire risk of the policy to that insurer by means of reinsurance. The reinsurer becomes responsible for managing the primary policy, handling claims made under the primary policy and payment of the insurance indemnity. Although the reinsured, also called the fronting insurer, does not retain any risk, it is nevertheless liable to pay insurance indemnity to the primary insured, therefore the credit rating and solvency of the reinsurer is important for the reinsured. The reinsured is entitled to a fronting fee, even though it does not retain any risk. Fronting is useful in a number of circumstances: It may enable the reinsurer to insure risks in a country where it is not licensed, or the laws of the country require primary insurance to be placed with domestic insurers. It allows local insurers to issue policies in sectors or activities in which they do not have the requisite expertise to assess risks and fix appropriate premiums and handle claims. The majority of worldwide aviation insurance is underwritten as facultative reinsurance policies through domestic fronting insurers, because aviation risk management is very specialized and most general or domestic insurance companies do not possess the know-how and skills to prudently underwrite aviation risks at competitive rates at a level of risk acceptable to their capital providers. ali kartal

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AVN41B Reinsurance Underwriting and Claims Control Clause: This clause provides that the primary policy cannot be amended without approval from the reinsurer, and that, in the event of a loss, the reinsurer will have the sole right to appoint adjusters, surveyors, or lawyers to negotiate settlements and handle disputes; AVN67C Airline Finance/Lease Contract endorsement: Airlines insure their aircraft against loss or damage, but more often than not, they are not the owner of the aircraft that they operate. The aircraft may belong to a leasing company, which is not a party to the insurance policy. Likewise, sometimes aircraft are financed by loans, and, as security for repayment of the loan, the aircraft may be mortgaged to the financier. In both cases, the leasing company or the financier has an economic interest in the aircraft. This clause enables leasing companies and financiers to benefit from the protection afforded by the policy, even though they are not a party to it. It also allows the insurer or reinsurer to discharge their obligation to pay insurance or reinsurance indemnity under the policy by making payment to the financier or lessor directly; AVN109 Cut-Through Endorsement: This clause allows the reinsurer to

aviation reinsurance  153 discharge its obligation to pay reinsurance indemnity to the reinsured by making the payment directly to the original insured. By doing so, the reinsurer also discharges the obligation of the reinsured to pay insurance indemnity to the original insured. It must be noted that this does not entitle the original insured to claim insurance indemnity directly from the reinsurer.

VI. Subrogatıon Original insured sometimes suffers losses from negligent acts of third parties. When an insurer pays insurance indemnity to the insured as a result of losses negligently caused by a third party, the right of the insured to demand compensation from persons or entities that may have caused the loss automatically passes to the insurer. This is called “subrogation.” To protect the insurer’s material interest in subrogation, the insured has an obligation to notify the insurer as soon as possible after a loss has occurred, preserve evidence, take all necessary legal actions in a timely manner to make sure that the right to demand compensation from liable parties is not jeopardized, and provide the insurer with any and all information and documentation that will enable them to pursue a claim against the liable parties. The insured may also be required to sign and submit a “subrogation receipt” to the insurer upon payment of the insurance indemnity. This document enables the insurer to prove that they are entitled to demand compensation from the persons who or the entities that may have caused the loss. The right of the insurer to demand compensation is limited to the amount of insurance indemnity that they paid. The insured retains the right to demand the deductible, and the reduction in resale value, from the liable parties. If the actual loss is greater than the insurance indemnity, the insured is also entitled to

demand compensation for the amount that exceeds the insurance indemnity that they have received. Reinsurers are entitled to the same rights of subrogation from their reinsured. Once they pay reinsurance indemnity, they automatically acquire the subrogation rights of the reinsured.

VII. Conclusion Aviation reinsurance remains a very specialized niche area of the insurance industry. Frequency of major losses is very low but their financial consequences can be extremely high. The rapid advent of unmanned aerial vehicles and the need for insuring them against losses and liabilities is a new development both for aviation insurance/ reinsurance and for aviation law. Ali Kartal

References “A Guide to Aviation Insurance”, International Union of Aerospace Insurers, December 2012, accessed 28 April 2022. Dr. Stefan Pohl and Joseph Iranya, “The ABC of Reinsurance”, VVW GmbH, 2018. Glossary and Acronyms, accessed 28 April 2022. Product, Aviation Insurance Clauses Group, accessed28 April 2022. Terms of Reference, Aviation Insurance Clauses Group, accessed 28 April 2022.

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42. Aviation Safety I. Terminology and Historical Evolution of Aviation Safety According to the International Civil Aviation Organization (ICAO) definition, aviation safety refers to the state in which risks associated with aviation activities, related to, or in direct support of the operation of aircraft, are reduced and controlled to an acceptable level. Safety differs from security since the latter considers unlawful acts of intentional harm and/or disruption to aviation activities. To reach the optimal level of safety, a systematic approach, including the necessary organizational structures, accountability, responsibilities, and policies and procedures, has to be implemented. This requires the involvement of all interested stakeholders and the incorporation of safety in all parts of the system, including people, tools, materials, equipment, and software. The consideration of safety has accompanied the history of commercial aviation since the first relevant flights in the 1920s and statistics of safety-related episodes have been collected ever since. These have also been used to propose theoretical models designed to optimize safety rules and procedures in aviation (Fromm, 1968; Barnett, 2020). A recent study identified the main dimensions that characterized traditional ways of considering aviation safety as: (a) the analysis of what people failed to do; (b) the actions that people should have performed in order to avoid the unfavorable outcome; (c) the search for the agents responsible for the event; (d) error as a cause of trouble on the basis of an unreliable behavior; and (e) error as an acceptable conclusion of an investigation. In general, this approach was based on the reaction principle, i.e., the necessity to respond to something already happening or to an unacceptable level of risk (Karanakis et  al., 2020). However, modern safety management is normally based on the proactive principle, the need to anticipate developments and events and to continuously improve the safety procedures and rules (Netjasov and Janic, 2008; Oster et  al., 2013). In this context, it is assumed that the unintended human errors are the result of underlying problems and that systemic flaws may determine the errors that lead to a lack of safety outcomes.

Such reasons may be related to either tools or tasks or operating environments. In this context, conflicting goals, for instance, safety versus productivity, company pressures, or poor working conditions may be the determinants of poor safety performances. Consequently, shared responsibility and non-counterfactual and non-judgmental approaches should be adopted in order to improve aviation safety and to minimize the risk factors related to human behavior. Moreover, other risk factors have been surveyed by Boyd (2017). He has highlighted that those flights in degraded visibility conditions requiring the pilot to control the aircraft only through reference to instruments without outside visual cues enhance the probability of a mishap. Safety is also influenced by the geographical region, as mountains and high terrains pose a series of problems related to winds and other weather conditions. The planned flight distance is another important cause, especially in cases in which pilots aim at completing the flight even in the presence of adverse conditions. As might be expected, night-time flights have a twofold higher risk than daytime ones. Lastly, off airport landings and post-crash fires have a threefold level of risk compared to regular landings. To minimize the effects of a lack of safetyrelated events in aviation, two complementary strategies have been mainly adopted. The first aims at improving pilot performance via training given that several studies have shown that pilot errors represent the largest cause of accidents. The second method seeks to increase the probability that, in the case of an accident, pilot, crew, and passengers suffer a minimal number of injuries. This second approach is based on technology and innovation aimed at enhancing the crashworthiness of aircraft. Moreover, a stringent use of restraint systems is necessary, as past accident analyses have demonstrated that the under-utilization of these systems heightens the severity of accidents (Boyd, 2017). Lastly, post-crash survivability crucially depends on the time required to rescue. This also depends on the level of adopted technology in GPS and other localization devices.

II. Law on Aviation Safety

1. International Organizations and Regional Regulations Given the complexities arising both in the daily management of air services and in the theoretical literature (Kurzweil and Rehor, 154

aviation safety  155 2018), national and international regulatory authorities have been created and international agreements have been signed in order to implement and manage a satisfactory degree of aviation safety. The most important is definitely the Chicago Convention (1944). This Convention established the ICAO, and safety issues were also considered. Currently the ICAO has 193 Member States that are partitioned into five regional aviation safety groups (Africa, Asia and Pacific, Europe, Middle East, and Pan America). The main measure of safety adopted by the ICAO is the global accident rate, i.e., the number of accidents per million departures. In the last decade this measure has shown a remarkable degree of safety in the commercial aviation market, oscillating between two and three fatal accidents. ICAO’s implementation of the highest possible safety is achieved through a risk-based analysis that currently underlines five main safety priorities (controlled flight into terrain, loss of control in-flight, mid-air collision, runway excursion, and runway incursion – apparently the riskiest one. Consequently, ICAO’s strategy is based on five coordinated activities: policy and standardization, monitoring of key safety trends and indicators, safety analysis, specific programs to address safety issues, and implementation support. According to the ICAO general framework, a safety authority should identify aviation safety risks and should develop all possible mitigations to safety-related episodes. These may involve either regulatory responses or advice and guidance. In the case of a regulatory response, the authority would be responsible for drafting rules, issuing approvals, monitoring compliance, and taking enforcement actions. This is particularly relevant in the case of Standards and Recommended Practices (SARPs). SARPs are issued by the ICAO and are meant to assist States in the management of aviation safety risks. ICAO publishes specific documents, the Global Aviation Safety Plan (GASP) and the Global Air Navigation Plan (GANP), to facilitate and guide the development and implementation of effective policies by industry, States, and regional organizations. The 2020–2022 GASP edition updates the goals and targets contained in earlier versions and adds new tools to enable States to measure their ability to oversee the efficacy of their safety policies.

Even though the Chicago Convention and the ensuing ICAO regulations allocate responsibility for aviation safety to individual States, Regional Safety Oversight Organizations (RSOOs) can and have also been established. According to the ICAO safety oversight manual (2011, p. 24), the aims of a RSOO should be: a) prioritize the effective and efficient implementation of safety oversight; b) pool human and financial resources; c) address regional and external factors and constraints more effectively as a collective body; d) strengthen cooperation and collaboration among member States with respect to the collection, analysis and sharing of safety data and information within the region; e) supplement shortfalls in the scope of national or bilateral safety interventions; f) provide support to industry in order to ensure it demonstrates compliance with regulatory requirements; g) identify and support the development of best practices within the region; h) demonstrate as a responsible regional organization improved regional solidarity; i) ensure the objectivity and independence of inspectors; and j) develop the capability for drafting and amending civil aviation legislation and regulations, procedures and other guidance material as well as for producing clearer standards, based on the international requirements and adapted to regional environmental factors and aviation industry needs.

Currently, there are nine RSOOs; three in the Americas, four in Africa, one in Europe, and one among the 12 newly independent States that emerged in 1991 after the collapse of the Soviet Union, and one in the Pacific. Within Europe, the European Aviation Safety Agency (EASA) is the RSOO and develops all the activities of a RSOO as described in the previous paragraph. Its members, the 27 European Union States plus Lichtenstein, Norway, and Switzerland, are obliged to abide by the EASA rules. However, ICAO is still the most important regulatory body as EASA rules must be consistent with ICAO’s recommended practices and standards. The first issues covered by the EASA regulations were aircraft certification and initial and continuing airworthiness (which appear to be the only topics on which implementing rules have been issued). A first extension added licensing and operations while a second one added air traffic management and aerodromes. The basic luca zamparini and joseph szyliowicz

156  elgar concise encyclopedia of aviation law EASA regulation as stated in the EC regulation 216/2008 endows this authority with three functions: (a) rulemaking in the topics covered by the regulation; (b) issuing of certificates and approvals in those fields; and (c) standardization of national aviation authorities’ rules. EASA’s rulemaking function can lead to three types of deliverables. The first one is represented by the certification specifications adopted by the Agency. The second one refers to guidance material adopted by the Agency and the third to draft regulations that are submitted by the Agency to the Commission for adoption. The issuance of certificates can be related to parts and appliances or to environmental issues. Moreover, approvals deal with design, production, and maintenance within and outside Member States territories. Lastly, standardization requires inspections and monitoring of the application by national authorities of the EASA regulations and implementing rules. The enforcement of these rules is carried out by license action and prosecution in the cases of willful violations. Another important international organization, the International Air Transport Association (IATA), was founded a year after ICAO, in 1945 by 57 airlines in order “to represent, lead, and serve the airline industry.” It now has a membership of 290 airlines in 120 countries that account for over 80% of global air traffic. IATA has overtime focused increasingly on safety, which it now states is aviation’s number one priority. Accordingly, it has developed and implemented an explicit strategy based on leadership’s role in developing a safety culture, identifying, analyzing, and mitigating risks, and enhancing connections between airlines. Accordingly, it works actively to promote corporate and operational safety and carries out Operational Safety Audits (IOSA), which have been mandated by several countries. It also runs an electronic platform, Integrated Management Solutions (IMX), that contains a range of relevant programs. 2. National Strategies Individual States also seek to ensure the safety of their aviation systems. In the United States, the authority in charge of aviation safety is the Federal Aviation Authority (FAA). The FAA was created between the end of the 1950s and the 1960s. Aviation safety is one of the five main areas within this authority’s jurisdiction, luca zamparini and joseph szyliowicz

and it is accomplished through the so-called safety management system (SMS). SMS has been championed by ICAO and consists of four main components, based on the proactive principle mentioned above: safety policy, safety assurance, safety risk management, and safety promotion. The safety policy is based on the principle of continually improving safety through the ongoing consideration of methods, processes, and organizational structures. Safety assurance considers the effectiveness of the adopted risk control strategies and evaluates all possible hazards. Safety risk management defines the need for new or revised risk controls based on the principle of acceptable risk. Lastly, safety promotion is related to communication, training, and other activities aiming at diffusing a safety culture among all air transport personnel. Operationally, the FAA manages the implementation of an integrated SMS program by ensuring that service/office SMSs are coordinated and implemented in a timely manner, by encouraging commonality in the implementation of the constituent SMS requirements, by diffusing the main principles of the SMS, and by cooperating with the international community in the harmonization of aviation safety protocols and procedures. Moreover, States can cooperate by means of Air Services Agreements that may deal not only with safety but with all other issues related to aviation between countries. These may facilitate the enforcement of safety norms.

III. Concluding Remarks International cooperation, the diffusion of best practices, and technological innovations represent major drivers toward an eversafer aviation industry. They may also be of momentous importance in improving the international safety records of developing countries and in some segments of commercial aviation, i.e., non-scheduled flights and air taxis. This may also be important to counter the emerging hazards in commercial aviation. A publication by the National Academies of Sciences, Engineering, and Medicine (2022) has underlined five main classes of potential sources of threat. The first is the ever-increasing complexity of the global aviation network; especially for what concerns the interaction of pilots with automated tools. The second

aviation safety  157 is represented by higher rates of new vessels (e.g., drones, supersonic flights, and air taxis). The third refers to climate change and the higher frequency of severe weather events. The fourth deals with new business models that involve manufacturers and operators with limited expertise and pilots with reduced training activities. Lastly, new technologies may be implemented without a thorough understanding of their possible side effects in terms of safety. Even though a completely safe aviation system is probably not feasible, the implementation of more proactive strategies will contribute to the continuing reduction of lack of safety episodes and, most importantly, of the related fatalities. Luca Zamparini and Joseph Szyliowicz

References Arnold Barnett, ‘Aviation Safety: A Whole New World?’, 54(1) Transportation Science 84–96 (2020). Clinton V. Oster, et  al., ‘Analyzing Aviation Safety: Problems, Challenges, Opportunities’, 43 Research in Transportation Economics 148–164 (2013).

Douglas D. Boyd, ‘A Review of General Aviation Safety (1984–2017)’, 88(7) Aerospace Medicine and Human Performance 657–664 (2017). Fedja Netjasov and Milan Janic, ‘A Review of Research on Risk and Safety Modelling in Civil Aviation’, 14(4) Journal of Air Transport Management 213–220 (2008). Gary Fromm, ‘Aviation Safety’, 33(3) Law and Contemporary Problems 590–618 (1968). ICAO, Safety Ovesight Manual. Part B The Establishment and Management of a Regional Safety Oversight Organization, ICAO, Montreal, Quebec, Canada (2011). Libor Kurzweil and Vaclav Rehor, ‘Safety II and Other Recent Trends in SMS’, 6(3) Magazine of Aviation Development 6–11 (2018). National Academies of Sciences, Engineering, and Medicine, Emerging Hazards in Commercial Aviation Report 1: Initial Assessment of Safety Data and Analysis Processes. Washington, DC: The National Academies Press (2022). Nektarios Karanikas, et  al., ‘“Old” and “New” Safety Thinking: Perspectives of Aviation Safety Investigators’, 125 Safety Science 104632 (2020).

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43. Aviation Security (EU)

Another important achievement by ICAO is the development of a series of international criminal air law treaties meant to provide a multilateral legal framework for States’ measures to address threats and actual unlawful acts against international civil aviation.

I. The International Framework 1. ICAO Aviation security is defined by the International Civil Aviation Organization (ICAO) as “Safeguarding civil aviation against acts of unlawful interference. This objective is achieved by a combination of measures and human and material resources.” Initially, the Convention on International Civil Aviation (The Chicago Convention) signed in 1944, did not address aviation security matters. Subsequently, in response to the growing threats to civil aviation by unruly behavior of passengers and terrorist acts, such as hijacking occurrences, ICAO developed Standards and Recommended Practices (SARPs) to prevent and suppress acts of unlawful interference against civil aviation. The Council of ICAO adopted the first set of SARPs on aviation security in 1974 and designated them as Annex 17 to the Chicago Convention. As in other areas of civil aviation, SARPs are to be applied by all ICAO contracting States, including EU Member States, as minimum standards, thereby setting out the global baseline for aviation security. SARPs applicable to aviation security are regularly updated through amendments to Annex 17 to ensure appropriate and timely responses to the evolving threats to international civil aviation. To enhance the effectiveness of global aviation security, ICAO has put in place its Global Aviation Security Plan (GASeP) with “a set of internationally agreed priority actions, tasks and targets” outlined in the Global Aviation Security Roadmap. Furthermore, in 2002 ICAO established the Universal Security Audit Programme Continuous Monitoring Approach (USAPCMA), “to promote global aviation security through continuous auditing and monitoring of Member States’ aviation security performance, in order to enhance their aviation security compliance and oversight capabilities.” ICAO regularly audits States focusing on defined critical elements of their aviation security oversight systems and on the levels of their compliance with Annex 17 SARPs.

2. Bilateral Agreements States also routinely include articles on aviation security in their bilateral air services agreements, where they declare their adherence to the above-mentioned international criminal air law treaties and commit to the implementation of Annex 17. Furthermore, bilateral air services agreements provide for cooperation between the Parties in aviation security and allow for specific actions that may be taken by either Party in case of concerns over aviation security standards administered by the other Party.

II. The EU Framework 1. Common EU Rules Following the terrorist attacks in the United States on 11 September 2001, the European Union (EU) decided to apply its supra-national approach to the aviation security sector and adopted in 2002 specific legislation. This legislation is binding and directly applicable in all EU Member States and prevails over their national laws. The common EU rules apply also to Norway, Iceland, Liechtenstein, and Switzerland through international agreements between the EU and these close partners. Regulation (EC) No 300/2008 on common rules in the field of civil aviation security and repealing Regulation (EC) No 2320/2002 replaced the first regulation from 2002 and serves as the current basic regulation complemented by several implementing regulations and decisions, some of which are not publicly available due to the sensitivity of the measures they contain. Under the EU aviation security legislation, EU Member States are required to regularly monitor all airports, operators, and other entities applying aviation security standards and to ensure the swift detection and correction of failures. The fact that EU Member States apply common aviation security rules allows for “one-stop security,” meaning that there is no need to rescreen air passengers, their cabin baggage, hold baggage, aircraft, and air cargo while they are transferring at an EU airport after arrival from another EU airport.

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aviation security (eu)  159 The EU aviation security framework establishes three levels of quality control: ●

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internal quality control implemented by airports, air carriers, and entities with security responsibilities; national quality control implemented by the Member States; and the European Commission’s oversight regime.

2. EU Oversight The European Commission’s oversight regime has as its objective to monitor the application by the Member States of Regulation (EC) No 300/2008 and to make recommendations to improve aviation security. In other words, it covers the activities of EU Member States in setting up, maintaining, and applying an effective national civil aviation security program and an effective national civil aviation quality control program. In terms of technical and legal instruments and tools, this oversight regime relies upon on-site inspections conducted by the European Commission in respect of EU Member States’ aviation security authorities and airports; infringement procedures that may be launched by the European Commission against EU Member States; and the possibility of referral to the Court of Justice of the EU as a last resort, in cases of sustained lack of rectification of deficiencies in terms of the application of the common EU aviation security standards. In addition, an EU Member States’ appropriate authority is promptly informed by the European Commission if an inspection at an airport on its territory discloses a serious deficiency, which is deemed to have a significant impact on the overall level of aviation security in the EU. This information is also communicated to all other EU Member States, which are then required to take appropriate action regarding flights from the airport concerned, e.g., requiring the rescreening of transfer passengers. 3. Policy and Rulemaking As regards EU policy and rulemaking, the European Commission has the responsibility to make proposals on EU aviation security policy and legislation supported by the Committee for Civil Aviation Security (AVSEC Committee) comprising the

representatives of EU Member States, and by the Stakeholders’ Advisory Group on Civil Aviation Security (SAGAS) comprising industry representatives. Indeed, most of the EU aviation security legislation is discussed and developed through the “comitology” procedure allowing for the direct participation of experts from EU Member States. The common EU aviation security standards cover a wide range of areas, such as the screening of passengers, cabin baggage, and hold baggage; airport security (access control, surveillance, etc.); aircraft security checks and searches; the screening of cargo and mail; the screening of airport supplies; staff recruitment and training; cybersecurity, etc. Taking into account that most areas regulated by ICAO SARPs in Annex 17 are covered by EU aviation security legislation, the EU and ICAO have negotiated an arrangement, whereby ICAO audits of EU Member States are restricted to the limited scope of areas not covered by the EU aviation security legislation, and, instead, ICAO regularly audits the European Commission and uses information about the performance of EU Member States made available on the basis of the outcome of Commission inspections. This arrangement recognizes the high level of integration of the EU aviation security regime and avoids duplication of monitoring activities. 4. International Cooperation The EU and its Member States have been active supporters of ICAO efforts to raise the level of aviation security globally. Besides, the EU has established close cooperation with like-minded countries (United States, Canada, Australia, United Kingdom, Israel, Japan, Singapore) on a bilateral basis. This may include “one-stop security” arrangements (currently in place with the United States, the United Kingdom, Canada, Singapore, Israel, Montenegro, Serbia), allowing for the avoidance of rescreening of air passengers, their cabin baggage and holding baggage, aircraft and air cargo arriving from the airports of one partner provided that its aviation security standards are recognized as equivalent to those applicable in the other. One-stop security brings lots of economic benefits to operators, passengers, and shippers and at the same time it retains a high level of aviation security. As in other areas of civil aviation, international cooperation in aviation security, through multilateral, regional, and bilateral francesco faiulo and máté gergely

160  elgar concise encyclopedia of aviation law fora, remains fundamental to make sure that the global aviation system is as protected as possible against the ever-evolving threats of acts of unlawful interference. An important role in the broader European region has been played by ECAC, the European Civil Aviation Conference, established in 1955 as an intergovernmental organization with the objective to harmonize and promote civil aviation policies in Europe. Years before the establishment of European Union legislation on civil aviation security, ECAC had adopted Doc 30 – Part II (Policy Statement in the field of aviation security) containing detailed but non-legally binding recommendations for the implementation of aviation security standards in its 44 Member States. Based on the cooperation with the European Commission of the European Union, Doc 30, Part II – Security, reflects the content of the European Union legislation on civil aviation security.

III. Concluding Remarks EU aviation security policy was established as a response to the heightened terrorist threats against civil aviation following 9/11. As threats are ever evolving, so does the EU framework: common standards are regularly updated. Oversight by the European Commission of the implementation of aviation security standards at EU Member States level helps to ensure compliance, establishes

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the effectiveness of the measures and controls applied, and provides feedback to improve the system. International cooperation with ICAO and like-minded bilateral partners is key to maintaining a high level of aviation security within the EU. Francesco Faiulo and Máté Gergely

References Annex 17 to the Convention on International Civil Aviation: Aviation Security – Safeguarding International Civil Aviation against Acts of Unlawful Interference at: https://www​.icao​.int​/Security​/SFP​/ Pages​/ Annex17​.aspx accessed 29 April 2022. European Commission, DG MOVE on aviation security at: https://transport​ .ec​ .europa​ .eu​ / transport​ -modes​ /air​ /aviation​ -security​_en accessed 29 April 2022. MacKenzie, David (2010). ICAO: A History of the International Civil Aviation Organization. University of Toronto Press. Mendes de Leon, Pablo (2017). Introduction to Air Law. Wolters Kluwer. Regulation (EC) No 300/2008 of the European Parliament and of the Council of 11 March 2008 on Common Rules in the Field of Civil Aviation Security and Repealing Regulation (EC) No 2320/2002 at: https://eur​-lex​.europa​.eu​/legal​-content​/ EN​/ TXT​/ PDF/​?uri​= CELEX​:32008R0300​ &from​=EN accessed 29 April 2022.

44. Aviation Security (International) I. Terminology and Historical Evolution of Aviation Security Aviation security has been identified by the International Civil Aviation Organization (ICAO) as “Safeguarding civil aviation against acts of unlawful interference.” Such interference has taken many forms over the years. Chapter 1 of Annex 17 to the Convention on International Civil Aviation of ICAO provides numerous examples, including aircraft seizure, hostage taking, use of weapons, and the communication of false information. Despite its ubiquity, this definition and its examples lack the breadth and inclusiveness inherent in what is a complex multilayered concept. Yet, security has traditionally been viewed from an “isolationist approach” rather than an essential “holistic approach” (Kölle et al., 2011, p. 43). Terrorism, an important related concept, also possesses many dimensions and remains highly and widely disputed, including in international law; a condition that severely limits efforts to minimize its impact. Even if conceptual clarity can be achieved, developing and implementing holistic, proactive security policies is no simple matter given aviation’s evolution into an enormous global system comprising aircraft, airports, air navigation, logistics, and support services. Each of these factors presents numerous unique security challenges. Airports, for example, vary in their locations, operational characteristics, the number and types of flights, and their regulatory contexts. Security challenges emerged only two decades after the first passenger flight in 1914 – a hijacking occurred in 1931 and a bombing in 1933. Thereafter attacks against civil aviation proliferated rapidly, motivated largely by a desire for personal gain through robbery or holding passengers for ransom or to escape to or from a particular regime. Despite this, security received little attention until 23 July 1968 when three members of the Popular Front for the Liberation of Palestine (PFLP) hijacked an Israeli flight to highlight their cause and to obtain the release of

political prisoners. New challenges emerged in the following decades, as airports in Israel and Greece were attacked in the 1970s and in Italy, Germany, and Austria in the 1980s. In December 1988 a time bomb destroying a Boeing 747 over Lockerbie, Scotland, represented another turning point. Though the goal was also political, it was designed not only to inflict psychological and economic damage but also to sow terror. Aviation security finally began to receive serious attention. In 1990, the United Kingdom enacted the Aviation and Maritime Security Act, and the United States the more expansive Aviation Security Improvement Act, which mandated background checks and higher standards for employees and the deployment of luggage bomb detection technology. Then, in 1996, the US Federal Aviation Administration’s (FAA) Reauthorization Act required passenger profiling, explosive detection technology, passenger baggage matching, and screening company certification. The Aviation Security Improvement Act (2000), which required background checks of security personnel at major airports, followed President Clinton’s White House Commission on Aviation Safety and its report (1997), which contained 31 security recommendations based on the understanding that “aviation security should be a system of systems, layered, integrated and working together.” However, it encountered major bureaucratic and economic opposition so that few reforms were enacted. The deadly 9/11/2001 attack, however, forced dramatic change.

II. Law on Aviation Security 1. National Law Aviation security was now a major issue everywhere and States implemented policies that took distinctive forms, reflected local conditions, and yielded different results (Szyliowicz and Zamparini, 2018). The US Aviation and Transportation Security Act in 2001 nationalized the screening process and enhanced personnel and baggage screening standards. It also created a new agency, the Transportation Security Administration (TSA) under the Department of Transportation (DOT), which in 2003 became part of the Department of Homeland Security (DHS). Canada adopted a multilayered system overseen by Transport Canada. Japan, on the other hand, developed a hierarchical structure

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162  elgar concise encyclopedia of aviation law involving the government, airlines, and private security organizations. Australia and Brazil have not implemented a comprehensive risk management system, and Brazil lacks adequate investments in people and technology. Some States, such as Kenya, lacked the necessary cooperative relationship between the State and the aviation sector. Israel stands out for having developed and implemented an extremely effective system, but it is not a model that can be easily exported given national differences regarding means, ability, and culture. In Canada, for example, privacy, drone regulation, and the right to protest at airports have all been contentious. 2. International Organizations The 9/11 attacks also underlined the need for further concerted changes at the global level. The first instance of global coordination dates back to 1944 when 52 States signed the Convention on Civil Aviation (the Chicago Convention), establishing the International Civil Aviation Organization (ICAO). Its goal is the promotion of international cooperation and to “create and preserve friendship and understanding among the peoples of the world.” Security, however, remained a minor concern until a proliferation of incidents led to the Tokyo Convention (1963). It did not come into force until 1969 but was soon followed by important additional steps at The Hague (1970), Montreal (1971) and its protocol (1988), as amended (see below). In 1974, a significant step was taken with the addition of Annex 17 to the Chicago Convention, which specified that each State had to create a specific organization and adopt an explicit security program. Accordingly, ICAO enacted its 2002 Universal Security Audit Program (USAP), which was specifically designed to assess State compliance with Annex 17. Within five years, 182 audits were carried out (172 of which yielded follow-up visits to ensure that weaknesses had been remedied), and a new set of audits was promptly initiated in 2008 (Final Report., pp. 4ff.). Annex 17, ICAO’s primary security policy instrument, has been updated many times, most recently for the 14th time in 2014, thus enhancing its original focus on Standards and Recommended Practices (SARPs). Although the goal is to provide a common set of security measures across the globe, SARPs may not be joseph szyliowicz and luca zamparini

the most appropriate in this respect given that they do not possess the same legal force as treaty provisions. Furthermore, governments are obliged to work only to achieve uniformity though they may inform ICAO of any discrepancies between a SARP and how it is striving to achieve security for the particular issue. However, issues relating to passengers, cargo, or mail are beyond ICAO’s authority for it does not possess regulatory power and cannot enforce a nation’s non-compliance with SARPs. Thus, the Chicago Convention generally permits any ICAO member to take legal action against another State for its failure to comply with the security regulations provided for in Annex 17 and other annexes. This option is rarely exercised, however, given the political implications as well as the financial and other costs involved. Such considerations lead to complex and difficult negotiations in any attempt to strengthen the international legal framework as the history of the Beijing Convention and the Beijing Protocol of 2010 demonstrates. Discussions began nine years earlier and they became operational eight years later, when it had been ratified by 26 of the 35 signatory States. The missing nine to whom it does not apply include China, Germany, the United Kingdom, and the United States. Similarly, the Tokyo Convention, the Hague Convention, and the Montreal Convention all have more signatories than ratifying States. States also differ in the number of conventions and protocols (ICAO lists 48) to which they commit. Non-State actors are also active at the international level. The members of the civil aviation unions of the International Transport Workers Federation (ITF), for instance, have actively lobbied their governments at ICAO’s meetings. Other active organizations include the Airports Council International, which has a Security Standing Committee that the International Air Transport Association (IATA) cosponsors. Founded in 1947 with 57 airlines from 31 nations, IATA now has 290 from 120 States. Security is one of its priorities, and it seeks to partner with governments to enhance their ability to deal with existing and future challenges. Its major initiatives include better information sharing, adoption of new screening technologies, 100% hold baggage screening, and rapid implementation of ICAO’s Global Aviation Security Plan (GASeP) and of Security Management Systems (SeMS). At its

aviation security (international)  163 2017 annual general meeting (AGM), it called for greater government industry cooperation in implementing “risk mitigation measures that maximize the protection of passengers and crew while minimizing disruption to passengers and the economy at large.” In 2020 it launched its Security Risk intelligence portal to enhance information sharing among airlines, airports, and navigation service providers. IATA also views cybersecurity as an ongoing challenge and is working to develop an effective Aviation Cyber Security and Risk Management Program. Recognizing that cyber is but one of the security challenges that is continuing to evolve, it also hosted, in 2019, an Integrated Security Forum (ISF)-DesignThinking Blue Skies Approach to Security and is planning to continue this work. The need for such efforts is obvious. Despite all the effort, time, and money that have been expended over the years, security challenges remain. According to ICAO, 36 acts of unlawful interference took place in 2018. Sixteen of these were directed against aviation facilities; the others involved efforts to use the plane as a weapon, seizing an aircraft, and a cyberattack. 3. Regional Measures Lastly, the 9/11 attacks also influenced regional organizations, EU Regulation 2320/2002 established basic standards for how its members should interpret the provisions of international law specified in the Chicago Convention’s Annex 17. Additional regulations were subsequently adopted in such areas as liquids, aerosols, and gels, security scanners, air cargo shipments, and national control programs. In 2016 all previous regulations dealing with implementation were revised in order to ensure that all States would actually adhere to the basic security standards that cover every aspect of aviation. Furthermore, each State and its airport and carrier operators must establish a specific security program, complete with quality controls, that is administered by a single competent authority. These regulations apply not only to the 27 Member States of the European Union (EU) but also to Norway, Iceland, Liechtenstein, and Switzerland. The EU also has bilateral agreements with various States, including the United States, as to which see the EU–US “Open Skies” agreement, signed in 2007 and operational since 2008, as amended in 2010.

Despite all these efforts, the EU confronts many of the same problems as ICAO, especially how to ensure that the rules are actually implemented appropriately by sovereign States. The EU, though, has an important advantage over ICAO since it can carry out unannounced inspections and take action if a State fails to respond appropriately or if States do not necessarily react as required. In 2014, a EU Commission study reported that 81% of essential security measures met the EU regulatory standards, and that 35 airports and governments had adopted recommended measures, but 16 airports in nine States, including Germany, still possessed serious shortcomings These were not eliminated until the 2016 terrorist attacks on the airports at Brussels and Paris had highlighted the need for a truly uniform high level of security across the EU (EC​.euro​pa). Those attacks also stirred the UN to action. Later that year, the Security Council, for the first time in its history, acknowledged aviation security was a major global issue when it unanimously adopted UNSCR. It “called on all States to work with each other and the ICAO to continuously adapt measures to meet that ever-evolving global threat.” The EU has also adopted regulations to ensure that its standards prevail beyond its borders. Any airline seeking to fly in or out of the EU must meet specified standards. Air cargo has received special attention. Even if the airline is permitted to fly into an EU airport, cargo carriers that originate outside the EU have been required (since July 2014) to comply with the EU’s screening requirements or be banned. Recognizing that the security policies of some countries do meet its standards, the EU has signed bilateral agreements with the United States, Canada, and a few other countries that exempt them from such requirements. Establishing all these rules and regulations, as was the case with ICAO, often required difficult, complex negotiations especially when financing or privacy issues were involved. Another controversial issue involved safeguarding an airport’s landside sections. The Airports Council International (ACI) Europe, for example, expressed concerns about the utility of restricting access to these areas as well as the high costs that airports would incur. Another regional organization, the Organization of American States (OAS), has joseph szyliowicz and luca zamparini

164  elgar concise encyclopedia of aviation law developed a program aimed at enhancing the ability of its members to comply with ICAO’s standards. Its Secretariat is mandated to identify issues and to ensure that training and technical aid is available to the States that need it. Such training has been primarily provided by American experts though Canada, Israel, and the region itself are providing increasing assistance, including efforts to facilitate national participation in ICAO workshops. The Pacific Aviation Safety Office (PASO) confronts even more serious problems. The system that seeks to ensure compliance with ICAO regulations is so inefficient that the Pacific Island countries are essentially unable to meet ICAO standards, a situation that threatens their development. Structural and operational reforms need to be supplemented by the provision of resources and technical expertise which, unlike in the OAS case, were not being supplied by other States or organizations (Guthrie, 2010). Still, some States, notably the United States, have played an important role in attempts to strengthen the aviation security system. In addition to providing technical assistance to other States and organizations, the Transport Security Administration (TSA) also carries out numerous audits that involve assessing the degree to which foreign airports comply with Annex 17. Even though it may not be legally entitled to do so, objections are seldom raised given its economic power and, when disagreements do arise, it resorts to negotiated agreements. One such agreement with the EU, for example, concerned a very delicate subject, the sharing of passenger information; another, with Argentina, allows each State to deploy air marshals on flights between their airports.

joseph szyliowicz and luca zamparini

III. Concluding Remarks Though a totally secure system can never be achieved given the attractiveness of the targets, the complexities of the system and of its components, the terrorists’ capabilities, and the continuing evolution of new technologies, “it is essential that those responsible for protecting the aviation industry be proactive in developing and implementing strategic and tactical systems that are effective in helping to mitigate criminal and terrorist activity” (Price and Forest, p. 1). Joseph Szyliowicz and Luca Zamparini

References EC​.europa​, http://ec​.europa​.eu​/transport​/modes​/ air​/security​_en. Final Report. Study on the Legal Situation Regarding Security of Flights from Thirdcountries to the EU, November, 2010. ICAO, Annex 17, 2006, ‘Security, Safe­ guarding International Civil Aviation Against Acts of UnlawfulI Interference,’ Eighth Edition, ICAO. Joseph Szyliowicz and Luca Zamparini (eds.), Air Transport Security: Issues, Challenges and National Policies (Edward Elgar Publishing, 2018). Karina Guthrie, ‘South Pacific Civil Aviation Safety and Security through Regionalism: New Initiatives for the Pacific Aviation Safety’, 5(1) Office Journal of Policing, Intelligence and Counter Terrorism 58–73 (2010). Rainer Kölle, et  al., Aviation Security Engineering: A Holistic Approach (Artech House, 2011).

45. BASAs See entry: 12. Air Services Agreements

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46. The Beijing Convention (2010) See entries: 11. Air Piracy and Crime; 12. Air Services Agreements; 47. Bermuda Agreements

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47. Bermuda Agreements I. The Transition from the Chicago Convention to the Bermuda I Agreement The efforts made by the United States to introduce a multilateral and free competitionbased international regime for commercial aviation failed with the establishment of the 1944 Chicago Convention on international civil aviation (henceforth, the Chicago Convention). The Chicago Convention’s scope was curtailed to solve technical coordination problems and left some crucial aspects about operational and commercial freedoms without a regulatory framework. For this reason, the United States started to negotiate the liberalization of air traffic rights for its airlines serving the international markets on a bilateral basis. With the purpose of securing a minimum degree of uniformity in bilateral arrangements, the Chicago Standard Form of Agreements for Provisional Air Routes (the Chicago Standard Form) was introduced with Resolution VIII of the Chicago Convention’s Final Act. It was believed that if the basic principles of the form were incorporated into future bilateral agreements, considerable progress would have been made in clearing the path for a multilateral grant of commercial air freedoms on a worldwide scale. Nonetheless, traffic rights and other factors of economic importance were still excluded. The 1946 Bermuda I Agreement substitutes for the Chicago Standard Form. Both the Bermuda I Agreement and the Chicago Standard Form preeminently target technical and administrative issues, for instance, reciprocal air traffic concessions, the designation of specific airlines authorized to fly on established routes, the mutual recognition of airworthiness certificates between States, patents and personnel licenses, the discipline applicable to the departure, arrival, and overflight of an aircraft within the territories of the signatory States, and the specific policy to activate arbitration procedures and to amend the bilateral agreement itself. A significant progress concerning economic subjects has been reached through the Final Act to the Bermuda I Agreement and its joined Annexes where a balance was

found between the liberal approach of the United States and the protectionist approach of the United Kingdom. In fact, the United Kingdom accepted three freedoms of the air that were not initially agreed upon in the Chicago Convention: the third freedom, which is the right to collect passengers or cargo in an airline’s home country; the fourth freedom, giving the right to discharge passengers or cargo at another country’s airport; and the fifth freedom, concerning the right to collect passengers or cargo at a location outside their home country and fly them to a location outside the airline’s home country.

II. The Economic Provisions Set Out in the Bermuda I Agreement The Annexes to the Bermuda I Agreement regulated a substantial exchange of traffic rights and economic provisions between the United Kingdom and the United States. Annex I concentrated on Freedoms I–IV, while Annex II targeted tariffs and pricefixing procedures. According to paragraph (a) of Annex II, the rates and fares applicable on routes between both States became subject to a double approval principle by their respective governments. In any case, rates and fares were also negotiated within the rate conference machinery of the International Air Transport Association (IATA). The same Annex also determined the principle of “reasonableness” of tariffs, according to which the fixed tariff shall correspond to the costs of operation and allow reasonable profit in order to exclude tariffs that are too low (preventing cases of dumping) or excessive (avoiding abusive practices). Annex III, together with Annex IV, described the routes on which the rights mentioned in Annex I and the tariffs as found according to Annex II applied. Annex V ruled the change of gauge (a scheduled change of aircraft, irrespective of aircraft type, occurring one or more times en route). Due to its economic importance, the change of gauge was allowed if the carrier resulted explicitly entitled to do so. As to the volume of the transported traffic, the Bermuda package contained some regulation regarding capacity in paragraphs 3–6 of the Final Act. Capacity is normally intended as the traffic carrying ability of an

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168  elgar concise encyclopedia of aviation law airline determined by such factors as type of aircraft and frequency of flights, often based on the determination of ton kilometers. These rules provided for a “fair and equal” opportunity for the carriers of both States to operate the agreed international air services, for a proportionate relationship of offer and demand of capacity and for the obligation to take into consideration the interests of the carriers of the other State. These provisions constituted the Bermuda Capacity Principles, and they have been interpreted as an attempt to avoid cut-throat competition on the routes involving the United Kingdom and the United States, allowing the carriers of both States to maintain regular services consistent with sound economic principles. The liberal character of these clauses was strengthened by paragraph 6 of the Final Act, which can be understood as a multiple designation clause, according to which it was possible to designate as many carriers as may be consistent with sound economic principles. It can be concluded that the Bermuda I Agreement regulated all essential technical and ancillary issues related to air traffic between the United Kingdom and the United States. Furthermore, it provided for a tariffmaking system as well as for a liberal capacity clause on account of a clearly defined route catalog. It is important to stress that the Bermuda I Agreement served as model for other successive bilateral agreements that made tariff and capacity regulation their core subjects, being considered, thus, what has been called the “Bermuda type” form of agreement.

III. The Bermuda II Agreement In 1976 the Bermuda I Agreement was terminated through formal denunciation by the British Labour government of Harold Wilson. The United Kingdom complained about the low share of British airlines on transatlantic routes and asked the treaty to be revised in light of a more equitable distribution of power and fair competitiveness. According to Article 13 of the old agreement, parties had 12 months to negotiate a new agreement or terminate it without adopting any other deal. The British government expressed the opinion that the benefits to the American airlines were far greater than the benefits to the United Kingdom because the francesca berni

United States was advantaged by the fifth freedom of the air, which permitted its airlines to take British passengers from their homeland to other States. Throughout the renegotiation, the United States consistently held to the position that the status quo granted by the Bermuda I Agreement had to be maintained. The negotiators reached a new agreement ten minutes after the expiration of the Bermuda I Agreement. Under the new agreement, the UK government gained the most distinct advantages compared to the few new points gained by the United States. While obtaining significant blind sector rights, permitting American carriers to bring passengers who originate in the United States through London and beyond to any point in Europe, the United States surrendered the fifth freedom rights to 22 cities. Another major provision of the new agreement, which was intended to mitigate overcapacity problems, required that each State designated only two carriers on the New York-London and Los Angeles-London routes, while all other city pairs that include London were served by one carrier from each State. Under the Bermuda II Agreement, though neither government has an outright veto over the other country’s schedules operated by the designated air carrier(s) of the other side, the designated carriers of both sides had to file their schedules and proposals for fare charges for “rescreening” by the other government. Should the other government object, it may have then requested consultation on the matter. Finally, the major provisions of the Bermuda II Agreement for the settlement of disputes and uncertainties were the consultation provisions. Article 16 provided that either the United States or the United Kingdom may have consulted on matters concerning the interpretation, application, or amendment of the agreement. Should consultation prove unproductive, however, Article 17 of the agreement required the dispute to be referred for decision to some person or body on the agreement of both parties. If the parties failed to agree, then the request of either party would have caused the dispute to be submitted to arbitration, subject to the procedures set out in Article 17, paragraphs 2 (a) and (b). Under these sections, each party had to name an arbitrator within 30 days from the receipt of the arbitration request and in case any

bermuda agreements  169 agreement could have been reached within 60 days, the parties were then to choose a third arbitrator. If either party did not select an arbitrator or the third is not agreed upon, either party had the power to approach the President of the International Court of Justice to appoint an arbitrator within 30 days.

British colony, was transferred to the People’s Republic of China and flights between the United States and Hong Kong were consequently removed from the scope of the agreement.

IV. Amendments to the Bermuda II Agreement

The liberalization of trade, the transnational ownership of carriers, joint marketing arrangements, and other similar developments that affected the aviation sector represent some of the reasons that made the bilateral system perceived as a constraint to the completion of a genuine single market and, therefore, collapse. Bilateral open skies agreements between the United States and individual European countries began to proliferate, enabling transatlantic service to new American cities. The European Court of Justice signified its disapproval in a series of consolidated rulings in 2002, holding that EU Member States entering into such agreements infringed the rules on the division of powers between the Community and the Member States. The court extended its condemnation to the Bermuda II Agreement. On 2 March 2007 a draft agreement was reached between the European Union and the United States to drop Bermuda II’s restrictions. The new Air Transport Agreement (the Open Skies Agreement) was approved unanimously by the European Union with Decision 2007/339/EC, replacing the Bermuda II Agreement with effect from 30 March 2008 and defining an Open Aviation Area (OAA or “Open Skies”) between the two territories. Francesca Berni

The Bermuda II Agreement underwent different amendments reflecting the conflicting standpoints of its contracting parties. The first revision took place in 1981: under the original Bermuda II Agreement only a set number of US gateway cities could be served by both UK and US carriers from London Heathrow and London Gatwick; the revised agreement allowed the two countries to decide on six new US gateway cities, granting the country that nominated a new US gateway a three-year-period protection for its own airline from the competition by the other country’s carriers. After the second revision in 1992 the practice of code sharing, a commercial agreement that allows an airline to put its two-letter identification code on the flights of another airline, became possible under the agreement. The same year, at The Hague, an arbitration award was signed between the US government and the UK government to decide on user charges imposed at Heathrow Airport. Article 10 of the Bermuda II Agreement stated that user charges had to be just and reasonable, reflecting but not exceeding the cost for the aviation authority to provide appropriate facilities and providing for a reasonable rate of return on assets after depreciation. Different international airlines started to complain that the British Airports Authority was abusing a monopoly position by imposing excessive charges. After the 1992 tribunal’s arbitration award stating the failure of the UK government to comply with the Bermuda II agreement’s provision on charges and a second dissenting opinion released by Mr. Jeremy Lever the year after, the parties ordered the discontinuance of the proceeding in 1994. The third revision took place in 1995 and led to a more liberal regime by waving fare and route restrictions in favor of all airports other than Heathrow and Gatwick. In 1997 sovereignty over Hong Kong, a former

V. The Open Skies Agreement

References Andreas Lowenstein, European Air Transport within the International System of Air Regulation (Institute of Air and Space Law, McGill University 1990). Anna Masutti, Il Diritto Aeronautico (G. Giappichelli Editore 2020). Brian F. Havel, Gabriel S. Sancgez, The Principles and Practice of International Aviation Law (Cambridge University Press 2014). Eur-Lex, ‘EU-US Aviation Agreements’ https://eur​-lex​.europa​.eu​/ legal​-content​/ EN​/ TXT/​?uri​=LEGISSUM​%3Al24483. francesca berni

170  elgar concise encyclopedia of aviation law Flight International, ‘Bermuda II Revisions Create 12 New US Gateways and Agreement on Gatwick’ (1980) p. 825. Harriet Oswalt Hill, ‘Bermuda II: The British Revolution of 1976’ (1978) 44 J Air L & Com 111. Jean Christophe Cornu, ‘Business Glossary of Terms’ https://view​.officeapps​.live​ .com ​ /op ​ / view​ . aspx​ ?src ​ = https​ %3A​ %2F​ %2Fwww​.iata​.org​%2Fcontentassets​%2F0​ 4c54​ 0 0c2​ d cd4​ b 05a​ 5203​ 3 067​ 2 b13ef6​ %2Fiata​-passenger​-glossary​-of​-terms​.xlsx​ &wdOrigin​=BROWSELINK. Jennifer Skilbeck, ‘The US/UK Arbitration Concerning Heathrow Airport User Charges’ (International and Comparative Law Quarterly 1995). Julia Anna Hetlof, US-EU Air Transport: Open Skies But Still Not Open Transatlantic Air Services (Institute of Air and Space Law, McGill University 2009). Louise Butcher, ‘Aviation: Open Skies’ https://researchbriefings​.files​.parliament​ .uk​/documents​/SN00455​/SN00455​.pdf. Max Plank Encyclopedias of International Law, Air Transport Agreements, Regulation of Liability (2007).

francesca berni

Raquel T. Ruiz-Dimalanta, ‘Overview of the Bilateral and Multilateral Regulation of International Air Transport’ (2002) 18 World Bull 79. Richard Kermit Waldo, ‘Sequels to the Chicago Aviation Conference, Law and Contemporary Problems’ http://www​.jstor​ .org​/stable​/1189827. Thomas E. Bridges, ‘Bermuda II and After’ (1978) 3 Air and Space Law 11–16. Toshiyuki Onuma, ‘The Future Regulatory Scheme of the International Civil Aviation Industry’ (1998) 14 World Bull 20. United Nations, ‘Reports of International Arbitral Awards, Volume XXIV’ (United Nations, 2005). U.S. General Services Administration, ‘Codeshare Fact Sheet’ https://www​ .gsa​ .gov​ / travel ​ / plan​ - book ​ / transpor tation​ -airfare​ - pov​ - etc​ /airfare​ - rates​ - city​ - pair​ -program ​/resource​-library​/codeshare​-fact​ -sheet. Werner F. Ebke, Georg W. Wenglorz, ‘Liberalizing Scheduled Air Transport within the European Community: From the First Phase to the Second and Beyond’ (1991) 19 Transp LJ 417.

48. Brexit (Aviation) The European Union (EU) has developed a considerable body of law touching upon aviation via regulations, directives, and decisions of the Court of Justice of the EU (CJEU). Some of this is aviation specific, but there is much that, although impacting aviation, is of wider application. The United Kingdom of Great Britain and Northern Ireland (UK) was subject to this EU acquis, and thereby had access to the EU single aviation market and was a member of the European Union Aviation Safety Agency, until 11 pm GMT on 31 December 2020 (i.e., until the end of the transitional implementation period following the cessation of its EU membership on 31 January 2020 pursuant to the terms of the European Union (Withdrawal) Act 2018). Since that date of true “Brexit” (as the United Kingdom’s exit from the EU has commonly been called), the United Kingdom has had both to recalibrate its relationship with the EU in light of its new status as a third country State and also to fill the void left by the disapplication of the EU acquis.

I. The EU-UK Trade and Cooperation Agreement The post-Brexit relationship between the EU and United Kingdom has been settled by the Trade and Cooperation Agreement that was signed by both parties on 30 December 2020 and entered into force on a provisional basis on 1 January 2021 (TCA). The TCA has been treated by the EU as an EU only, as opposed to a mixed, agreement (and was thus concluded pursuant to the Treaty on the Functioning of the European Union [2016] OJ C202/1, Article 217). It has been ratified by the United Kingdom and EU Parliaments and formally entered into force on 1 May 2021; and it has been incorporated into UK domestic law by the European Union (Future Relationship) Act 2020 (FRA 2020). The TCA deals with aviation in its Part 2, Heading 2, Articles 417–458. It covers all of the principal topics relevant to an aviation relationship between two State parties, including route schedules and traffic rights; code-sharing and blocked space agreements; operational flexibility; operational authorizations and technical permissions;

operational plans; programs and schedules; compliance with laws and regulations; non-discrimination; (removing obstacles to) doing business and commercial operations; fiscal provisions; user charges, tariffs, and statistics; aviation safety; aviation security; air traffic management; and consumer protection. However, although the TCA can be said to be comprehensive in scope, it is not so in depth, especially in relation to traffic rights, ownership and control, air traffic management, and aviation safety. As Balfour put it (EU/UK Aviation Relations Following Brexit, 2021, p. 287): “the approach taken … may be seen to be somewhat mean-spirited and short-sighted.” For example, it provides only for third and fourth freedom rights for scheduled passenger services for EU and UK air carriers in respect of points between the EU and UK (in contrast, fifth freedom rights are potentially available for cargo flights on a bilateral basis between individual Member States and the United Kingdom). But the TCA does make repeated provision for cooperation between the two parties in the fields it covers (see Articles 428, 434, 436, 438, and 452) and attempts to ensure a level playing field for the carriers of both parties when flying between the two (see Articles 427, 431, and 435). Article 4 of the TCA states that its provisions and any supplementing agreement shall be interpreted in good faith in accordance with their ordinary meaning in their context and in light of the object and purpose of the agreement in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969. The TCA does not have direct effect in UK law. Its articles cannot therefore be invoked directly. However, the FRA 2020 does seek to implement the TCA to the extent that its Section 29 contains a sweeping up mechanism which provides that existing UK domestic law has effect with such modifications as are required for the purposes of implementation of the TCA in UK law. This has been held to make it clear that the process of modification applies automatically (without the need for further intervention by the UK Parliament), but it applies only insofar as is necessary, i.e., it does not modify a domestic law that is already consistent with the TCA and covers only modifications necessary for the purposes of complying with the international

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172  elgar concise encyclopedia of aviation law obligations of the United Kingdom under the agreement (Lipton v. BA City Flyer Ltd [2021] EWCA Civ 454, [2021] 1 WLR 2545). Accordingly, there may be circumstances in which the UK courts will need to interpret and apply the TCA in order to find out what the effect of UK domestic law is.

II. Application of EU Law in the UK Post-Brexit From the United Kingdom’s accession as an EU Member State, EU law had effect in the United Kingdom pursuant to its European Communities Act 1972. That Act was repealed by the European Union (Withdrawal) Act 2018 as amended (2018 Act), with the result that EU law ceased to have effect in the United Kingdom from 11 pm GMT on 31 December 2020. However, the same Act filled the resultant void by bringing into effect a new two-pronged scheme for the post-Brexit UK legal landscape commencing from that date (defined for its purposes as “IP completion day”). 1. Retained EU Legislation and Principles First, the 2018 Act provided that (with minor exceptions) any EU regulation, EU decision, or EU tertiary legislation as had effect in EU law immediately before IP completion day forms part of UK domestic law thenceforth in its English language form (and provided that there was one). It further provided that UK regulations could be made where considered appropriate to prevent, remedy, or mitigate any failure of such retained EU law to operate effectively, or any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU. In reliance upon this power the United Kingdom has introduced a large volume of statutory instruments that have amended UK legislation, and amended or revoked EU regulations, in order to determine what has been retained in UK law from the end of the implementation period. In short, all aviation-specific EU regulations then in force were retained in UK law by this route at Brexit, albeit with minor adaptation in particular to reflect their being UK instruments policed solely by UK institutions acting pursuant to UK law and with their jurisdiction being limited to that of the United Kingdom. robert lawson

The 2018 Act further stipulates that the principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after IP completion day; however, it does continue to apply insofar as is relevant to the interpretation, disapplication, or quashing of any enactment or rule of law passed or made before that date (as retained in UK law). General principles of EU law have also been made part of UK domestic law provided that they were recognized as a general principle of EU law by the CJEU in a case decided before IP completion day (and whether or not they formed an essential part of the decision in the case). Further, retained EU regulations can be modified only by an Act of the UK Parliament or any other legislation that provides the power to make such a modification, or any provision made on or after the passing of the 2018 Act by or under UK primary legislation. They therefore have a degree of future statutory safeguard. 2. Retained CJEU Jurisprudence Second, the 2018 Act provided that any question as to the validity, meaning, or effect of any retained EU law is to be decided, insofar as that law is unmodified on or after IP completion day and insofar as they are relevant to it, in accordance with any relevant case law of the CJEU rendered pre-Brexit or by a court or tribunal of the United Kingdom on point and the retained general principles of EU law (but having regard to the limits of EU competences as at Brexit). The above said, whilst lower courts are therefore bound by any such retained case law, the UK Supreme Court and the English Court of Appeal are not. Nevertheless, they can depart from it only using the same test as the UK Supreme Court would apply in deciding whether to depart from its own case law (per Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, which the Supreme Court has not considered necessary to reissue in its own name: see Austin v. Southwark London Borough Council [2010] UKSC 28, [2011] 1 AC 355, [24]-[25]). Such departures from previous case law have been relatively rare in practice and the retained pre-Brexit jurisprudence of the CJEU is therefore likely to have a relatively secure future. In contrast, the 2018 Act further provided that a UK court or tribunal is not bound by any

brexit (aviation)  173 principles laid down, or any decisions made, by the CJEU after IP completion date (and equally cannot refer any matter to the CJEU after that date). However, subject to certain qualifications it may have regard to anything done by the CJEU, another EU entity, or the EU after IP completion date insofar as it is relevant to any matter before the court or tribunal. This gives a wide element of discretion as to the weight to be placed on any decision of the CJEU made post-Brexit by a UK court or tribunal. 3. Overall Position It follows from 1. and 2. above that Brexit did not cause a significant change in terms of the substance of aviation related law applicable in the United Kingdom at that time (but did affect its form and accountability). Instead, what was created was a closely equivalent but parallel aviation universe – until such time as either party legislates in a way that diverges from this.

III. UK Traffic Rights vis-à-vis Third Countries Post-Brexit When an EU Member State, the United Kingdom enjoyed traffic rights pursuant to a number of air services agreements entered into by the EU en bloc, the most notable example being the EU-US Open Skies Agreement of 2007. Upon Brexit, UK carriers ceased to have rights under such agreements. As a result, the United Kingdom has entered into a number of replacement agreements, including the UK-US Air Transport Agreement signed in November 2020. In some instances where no such replacement agreement has been made/entered into force, flights have proceeded nonetheless on the

basis of comity and reciprocity (as indeed was the case between Brexit and the UK-US Air Transport Agreement coming into force on 25 March 2021). Robert Lawson

References European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020 and the European Union (Withdrawal) Act Exit Day Regulations 2019. John Balfour, ‘EU/UK Aviation Relations Following Brexit’, Air & Space Law 46, no. 2 (2021) 279. Pablo Mendes de Leon, ‘The Operation of Traffic Rights in the Post-Brexit Era: A Cost-Benefit Analysis’, Air & Space Law 46, Special Issue (2021) 11. Regula Dettling-Ott, ‘The Air Transport Agreement Between the EU and the UK: A New Approach’, Air & Space Law 46, Special Issue (2021) 3. Robert Lawson, ‘Air Passenger Rights in the UK Post-Brexit: The Position So Far’, Air & Space Law 46, Special Issue (2021) 45. Robert Lawson & Tom van der Wijngaart, ‘Brexit – Will the Flying Public Notice Any Meaningful Difference?’ (https:// www​.clydeco​.com​/zh​/ insights​/ 2021​/ 01​/ brexit​ -will​ - the​ -flying​ -public​ -notice ​ -any​ -meaningfu). Trade and Cooperation Agreement Between the United Kingdom of Great Britain and Northern Ireland, of the One Part, and the European Union and the European Atomic Energy Community, of the Other Part Brussels and London, 30 December 2020, TS No.8 (2021), CP 426; [2021] OJ L149/10.

robert lawson

49. Business Aviation See entry: 76. General Aviation

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50. Cabotage I. Law on Air Cabotage 1. International Law Cabotage is generally defined as transport (by sea, air, land, and inland waters) of goods or passengers carried out between two or more points located within the same State (Matte, 1980; Casanova and Brignardello, 2020; Masutti, 2020; Sia, 2019; Zunarelli, 2020). The word “cabotage” derives from the French term cabot or chabot (which means small low vessel) and from the Spanish word cabo (which means cape or promontory and therefore refers to the navigation from one “cape” to another along the coast) (Cooper, 1952; Mendes de Leon, 1992; Sia, 2019). Originally, cabotage concerned only coastal navigation, from one port to another in the territorial waters of a State. Cabotage currently has a very wide application as it also includes aviation, railways, and road transport. Regarding air cabotage, at the international level, the discipline has been strongly conditioned by the protectionist choices of individual States, which have preferred to protect their territory and their trade from unfair foreign competition. States have historically decided to reserve the exercise of air traffic rights on their territory in favor of national airlines, introducing restrictions for foreign carriers (Gaeta, 1959; Lewis, 1980; Comenale Pinto, 2002; Italiano and Panetta, 1999; Sia, 2000; Pruneddu, 2017; Masutti, 2020). The reserve of cabotage finds its first regulation in the Convention Relating to the Regulation of Aerial Navigation, otherwise called the Paris Convention of 1919 (Ambrosini, 1939; Lewis, 1980). According to the Paris Convention of 1919, the right of foreign aircraft to fly over the territory of a State was to be distinguished from the right of carriage from one airport to another within the same State: this is because the States were recognized as having the right to reserve air cabotage services for domestic aircraft. Article 16 of the Convention provided that “Each contracting State shall have the right to establish reservations and restrictions in favour of its national aircraft in connection with the carriage of

persons and goods for hire between two points on its territory.” The Paris Convention was later repealed by the Convention on International Civil Aviation, called the Chicago Convention of 1944, which introduced a workable and efficient international aviation system through multilateral agreements for the exchange of commercial air rights Turco Bulgherini, 1984; Ballarino and Busti, 1988; Turco Bulgherini, 2002). Article 7 of the Chicago Convention aims to strengthen the protection of national airlines, reaffirming that “Each contracting State shall have the right to refuse permission to the aircraft of other contracting States to take on in its territory passengers, mail and cargo carried for remuneration or hire and destined for another point within its territory.” Furthermore, the same rule introduces a principle of reciprocity to limit any discriminatory situations in granting cabotage rights to the various States. Article 7 prohibits granting this right on an exclusive basis to aircraft from another State, providing that “Each contracting State undertakes not to enter into any arrangements which specifically grant any such privilege on an exclusive basis to any other State or an airline of any other State, and not to obtain any such exclusive privilege from any other State.” According to a restrictive interpretative thesis, Article 7 would allow cabotage rights to be granted only on a “non-exclusive” basis, thus prohibiting any form of discriminatory concession. It, therefore, follows that, if a State were granted the right of cabotage by another State, any other contracting State would automatically acquire the right to claim the corresponding privileges (Robinson, 1968). According to a less rigorous thesis, Article 7 would allow for the granting of cabotage rights to a State on an exclusive basis provided, however, that the agreement does not contain a provision aimed at considering cabotage rights as exclusive, so that third States have the right to demand corresponding privileges. The implication, therefore, is that States may enter into agreements that grant cabotage rights to other States as long as the agreements do not specify that these rights are exclusive and preclude the granting of such rights to another State (Sheehan, 1950; Cheng, 1962). It will be the responsibility of the excluded State to prove that cabotage rights have been attributed in a discriminatory manner, in

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176  elgar concise encyclopedia of aviation law violation of the exclusivity constraint under Article 7. This is a very difficult test if the agreement does not contain any provision aimed at precluding the granting of cabotage rights to other States other than the one party to the agreement. The Chicago Convention also provides that the cabotage reserve can be applied only to commercial air navigation, thus excluding unpaid transport (such as free transport, those carried out for pleasure, or self-employed). It should be noted that the cabotage reserve, intended to regulate and limit any possible form of commercial exploitation of air navigation on national routes, derives from the principle of sovereignty enshrined in Article 1 of the Chicago Convention, according to which “every State has complete and exclusive sovereignty over the airspace above its territory” (Zunarelli, 1990). The air cabotage referred to in Article 7 of the Convention is related to the events that occurred during the period of the Convention’s enactment. In particular, the need to overcome the impact of World War II led States to put national interests before international ones. Consequently, it was preferred to hold that air transport should be subject to the control of each State to guarantee the protection of national interests (Sheehan, 1950). Moreover, the Air Services Agreements (ASAs), provided for by Article 6 of the Chicago Convention, exclude cabotage rights from the exchange of traffic rights. In this sense, for example, the Air Transport Agreement between the United States of America and the European Union and its Member States, signed on 25 and 30 April 2007, excludes the right of US and European airlines to take on board, in the territory of the other Contracting Party, passengers, baggage, cargo, or mail destined for another point in the territory of the same Contracting Party (Article 3.6). 2. EU Regime The reserve of cabotage affects competition, creating problems of incompatibility with European law. In particular, the cabotage reserve stands in contrast with the protection of the principles of integration and nondiscrimination, the right of establishment, freedom to provide services, and the operating rules of the market (De Coninck, 1992; Rinaldi Baccelli, 1987; Silingardi and alessandra romagnoli

Antonini and Franchi, 1998; Masutti, 2002; Zunarelli and Pullini, 2008; Lobianco, 2021). As already described, at the international level, most States have preferred to prohibit the exercise of air cabotage rights by foreign carriers. The policy adopted by the European Union has favored the creation of a system of access to the air transport market based on liberal principles. At the EU level, therefore, Member States can grant each other cabotage rights. Until the 1990s, Member States had introduced restrictions in their national policies, reserving cabotage rights to national carriers. Community institutions, to create a common market, starting from the second half of the 1980s, have begun a process of liberalization of civil aviation, to develop the sector and ensure the efficiency of transport. This process was concretely implemented through the drafting of the Regulations of 23 July 1992, commonly known as the “Third Package” and currently replaced by Regulation (EC) 24 September 2008, no. 1008. At the EU level the so-called free cabotage applies, granting Community carriers (in possession of an operating license) the right to access the domestic routes of individual Member States. In this perspective, the Regulation (EEC) of 23 July 1992, n. 2408 (whose principles are emphasized by Reg. (EC) 1008/2008) abolished the cabotage reserves in the domestic trades of the member countries. Specifically, as of 1 April 1997, air carriers established in a Member State have been granted the right to operate air services (scheduled or non-scheduled) between two or more airports within the Member State, regardless of which one they belong to. The European organizations have thus opened the aeronautical market to competition by favoring the exercise of commercial freedoms on national routes, which are no longer subject to the authoritative power of the State concerned. Free access to traffic rights by Community air carriers is further strengthened by the prohibition for Member States to subject the provision of intra-Community air services to any permit or authorization other than the operating license (Article 15.2 Reg. (EC) 1008/2008).

cabotage  177 Regulation (EC) no. 1008/2008 provides for some cases in which the Member States can intervene in the exchange of traffic rights and limit, for general purposes of public interest, transport services on Community routes. In particular, Member States may limit or prohibit the exercise of traffic rights if other modes of transport offer appropriate levels of service, in the event of serious environmental problems; similarly, a Member State may refuse, limit, or impose conditions on the exercise of traffic rights to solve sudden short-term problems arising from unforeseeable and unavoidable circumstances (Article 20 and Article 21, Regulation (EC) No. 1008/2008). Until the entry into force of Reg. (EEC) 2408/92, the Italian legislation was also influenced by the protectionist approach adopted at the international level. While Article 780 of the Italian Navigation Code reserved air cabotage services between Italian State airports to national carriers, the current Article 786 (adopting the EU principles of free competition) reserves cabotage services to all air carriers belonging to the European Union, as long as they have an operating license. The reserve of cabotage continues to operate for non-EU carriers, which are not recognized as having the same rights as those established in the Union. Article 786 of the Italian Navigation Code (and, with it, the Community legislation to which the same rule refers) differs, in its content, from the provisions of Article 7 of the Chicago Convention of 1944: in the Convention, indeed, the contracting States can refuse to allow foreign aircraft to carry out air transport services within their territory, thus granting cabotage rights only to national airlines of the State concerned to make use of this reserve (Zunarelli, 2015). The legislation in question (unlike the provisions of the Chicago Convention) extend cabotage rights in favor of all Community carriers, without, however, recognizing this extension to non-EU carriers. This principle leads to a consideration that, under Article 7 of the uniform law discipline, any contracting State outside the EU could claim to exercise such a right. However, it should be noted that Article 77 of the same Chicago Convention provides that several contracting States constitute organizations for the joint operation of air transport on any route. The European Union

seems to have applied this rule, constituting a single European cabotage area (Lefebvre D’Ovidio and Pescatore and Tullio, 2022). Alessandra Romagnoli

References Ambrosini A., Istituzioni di diritto aeronautico (Editoriale Aeronautica, 1939, 144). Ballarino T., Busti S., Diritto aeronautico e spaziale (Giuffrè Editore, 1988, 56). Casanova M., Brignardello M., Corso breve di diritto dei trasporti (2nd ed., Giuffrè Editore, 2020, 103). Cheng B., The Law of International Air Transport (Stevens and Sons Limited, 1962, 315). Comenale Pinto M. M., ‘Substantial Ownership and Control of International Airlines’ in Rapports nationaux italiens au XVI Congrès International de Droit Comparé (Giuffrè Editore, 2002, 541). Cooper J., ‘Aviation Cabotage and Territory’ (1952) U.S. Av. Rep. 256, 257. De Coninck F., European Air Law: New Skies for Europe (Institute of Air Transport Paris, 1992). Gaeta D., ‘Cabotaggio’ (1959) V Enciclopedia del diritto 737. Italiano A., Panetta M. L., ‘La riserva di cabotaggio’ in Romanelli G., Tullio L. (eds.), Aspetti della normativa comunitaria sui servizi aerei c.d. terzo pacchetto (I.S.DI.T., 1999, 85). Lefebvre D’Ovidio A., Pescatore G., Tullio L., Manuale di Diritto della Navigazione (16th ed., Giuffrè Editore, 2022, 235). Lewis D. R., ‘Air Cabotage: Historical and Modern-Day Perspective’ (1980) 45 J. Air. L. & Comm. 1060. Lobianco R., Compendio di diritto aeronautico (2nd ed., Giuffrè Editore, 2021, 150). Masutti A., La liberalizzazione dei trasporti in Europa (Giuffrè Editore, 2002). Masutti A., Il diritto aeronautico (3rd ed., G. Giappichelli Editore, 2020, 97). Matte N. M., Traité de Droit AérienAéronautique (3rd ed., Éditions Pedone, 1980, 173). Mendes de Leon P., Cabotage in Air Transport Regulation (Martinus Nijhoff, 1992). Pruneddu G., Le compagnie low cost tra disciplina dei servizi aerei e tutela dell’utente (Aracne Editrice, 2017). alessandra romagnoli

178  elgar concise encyclopedia of aviation law Rinaldi Baccelli G., ‘La liberalizzazione del trasporto aereo in Europa’ (1987) 41–43 Trasporti 150. Robinson G.S., ‘Changing Concepts of Cabotage: A Challenge to the Status of United States Carriers’ (1968) 34 J. Air L. & Com. 561. Sheehan W. M., ‘Air Cabotage and the Chicago Convention’ (1950) 63 Harv. L. Rev. 1157. Sia A. L. M., ‘Il cabotaggio aereo nella Convenzione di Chicago del 1944 e nella disciplina comunitaria’ (2000) I Dir. Trasp. 31. Sia A. L. M., La disciplina del cabotaggio: profili di diritto aeronautico (1st ed., Aracne Editrice, 2019, 1). Silingardi G., Antonini A., Franchi B. (eds.), L’attività del trasporto aereo dopo la liberalizzazione del cabotaggio, Atti del convegno, Modena, 4 aprile 1997 (Giuffrè Editore, 1998).

alessandra romagnoli

Turco Bulgherini E., La disciplina giuridica degli accordi aerei bilaterali (Cedam, 1984, 19). Turco Bulgherini E., ‘Servizi aerei di linea e servizi aerei non di linea’ in Il nuovo diritto aeronautico. In ricordo di Gabriele Silingardi (Giuffrè Editore, 2002, 389). Zunarelli S., ‘Servizi aerei’ (1990) XLII Enc. dir. 378. Zunarelli S., Pullini A., ‘I servizi di trasporto aereo’ in Zunarelli S. (ed.), Il diritto del mercato del trasporto (Cedam, 2008, 23). Zunarelli S., ‘La disciplina dei servizi aerei’ in Zunarelli S., Romagnoli A., Claroni A. (eds.), Diritto pubblico dei trasporti (Bonomo Editore, 2015, 62). Zunarelli S., Comenale Pinto M. M., Manuale di diritto della navigazione e dei trasporti – Vol. I (4th ed., Cedam, 2020, 16).

51. The Cape Town Convention and Aircraft Protocol

to the uniformity of law, and the adequate rules of procedure, it also provided economic benefits. At the microeconomic level, the Convention made investments and transactions more attractive due to predictability and, therefore risk as well as cost reduction of the transaction.4

I. Cape Town Convention and Protocol

II. Applicability

Aircraft financing was facing an impenetrable obstacle of a myriad of laws and regulations different in every part of the world. Creditors would therefore be more reluctant to deal with debtors in jurisdictions they perceived too risky for the successful enforcement of rights, and where no reassurance as to the predictability of such enforcement was available, which resulted in an incremental risk and elevated transaction costs. The Cape Town Convention and its Protocol on International Interests in Mobile Equipment1 (“the Convention”) became the latest iteration in the solution to these problems as it created a more homogeneous set of remedies that could be enforced in the jurisdiction of its contracting States, granting enforcement predictability in cases of default and provide debtors overall financial benefits with regard to aircraft financing resultant from the reduction of transactional risk.2 The Convention provides a baseline of assurances, by converting what had been soft law and best practices into standard and regulated principles and procedures. This meant that parties located in otherwise uncertain jurisdictions for the enforcement of rights would gain access to more sophisticated financing structures amid lower financing and transaction costs in proportion to the increased predictability.3 This predictability was granted on a baseline of remedies and preferential rights or interests foreseeable to the creditor when recuperating their assets. A great breakthrough of this treaty was the creation of the Cape Town Convention remedies safeguarded by an international interest registrable on the asset at the International Registry of Mobile Assets. These remedies provided: (1) the creation of an international interest granting priority to registered rights of creditors, and (2) clear and established rights to repossess an aircraft within and outside of insolvency. The Convention was therefore able to give the different parties reassurance with regard

To achieve compatibility between the Convention and applicable law, the contracting States can make declarations that can facilitate the incorporation of the treaty into their national legal system. To achieve the economic benefits that can result from its adequate implementation, there is a preference for contracting States to make Qualifying Declarations.5 These Qualifying Declarations grant contracting States a discount under the Organisation for Economic Co-operation and Development’s (OECD) Aircraft Sector Understanding on Export Credits for Civil Aviation (ASU), which can grant up to a 10% discount (CTC discount) of the “minimum premium rate granted by governmental export credit agencies to aircraft operators.”6 There is an overarching sentiment by the capital markets, that the Qualifying Declarations are the key component of the adoption of the treaty, and that a contracting State that chooses to ratify the Convention without the Qualifying Declarations will neither accomplish the true purpose of the Convention nor will it benefit from the economic advantages. Nonetheless, although contracting States can make these declarations, there is a stark difference between making these declarations on paper and adequately imbedding them in their legal regime. In fact, the CTC discount requires that the Qualifying Declarations be effectively implemented into national law. Thus, while a contracting State could appear to have adopted the Qualifying Declarations it could be the case that these may be incompatible with their legal system and, hence, vulnerable to overrule by local courts. Furthermore, the ASU requires an application process for the discount to be applicable, which evaluates whether adequate implementation has been given to the Convention and the Qualifying Declarations. To accomplish compatibility, a thorough legislative and constitutional analysis should be made, accompanied by an educational

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180  elgar concise encyclopedia of aviation law process which is often to familiarize courts, practitioners, and administrative aviation authorities with the obligations bestowed by the Convention. The Convention relies on national courts to enforce the “realization of the benefits”7 and, while its implementation at the executive and legislative levels had been considered successful,8 the same is not necessarily the case at the judicial level. The lack of adequate implementation and compliance can result in the national courts being unfamiliar or unable to implement the treaty’s principles; and in the national law being ill-equipped to apply the procedural rules necessary to expeditiously enforce the rights and remedies contemplated by the Convention. In that sense, whether a contracting State made the Qualifying Declarations would not be at the forefront of the argument if national courts are unable to recognize and enforce the Convention. The Qualifying Declarations provide expedited remedies and shortened time periods for the enforcement of security interests and the recovery of possession of aircraft or engines, during insolvency proceedings. The Convention contains no specific dispute resolution mechanisms, but it causes expedited remedies to be applicable and binding under the different legal systems of contracting States. When lacking the Qualifying Declarations, contracting States might still be able to provide the same recourse or remedy to creditors except under much lengthier mechanisms contemplated under domestic law, maintaining an uncertain scenario for the enforceability of rights. Compliance and implementation of the Convention is closely followed by the CTC Compliance Index (the Index)9 overseen by the Aviation Working Group (AWG).10 The Index provides a high-level analysis on a contracting State’s compliance and implementation of the Convention while taking into account whether or not these states have made the necessary Qualifying Declarations, while also contemplating other factors that are influential in the ability of creditors to enforce their rights. Hence, the Index is able to distinguish between those States that (a) adopted the Convention and all Qualifying Declarations, and (b) those that did not, or at least not totally. The Index ranks the contracting States based on their compliance level, which can, in turn, have an effect on their OECD discount eligibility. Importantly, carlos sierra

a contracting State can be extremely compliant in contested and uncontested scenarios, to the extent of the declarations made, despite these not be fully “qualifying.” In certain States, the available rights and remedies under the Convention have been successfully tested in administrative and judicial proceedings. It is pivotal to understand that whilst the Qualifying Declarations are the desired benchmark under the ASU and by capital markets, some countries are better than others in understanding the rule of law and the extent to which their legal system can respect contractual international obligations adopted by parties in cross-border transactions. It is better to understand the compliance limitations that will remain effective and enforceable, rather than purport to have made the Qualifying Declarations when such will not be honored by the courts for lack of adequate implementation and compliance. For instance, Mexico is a contracting State to the Convention that did not make all of the Qualifying Declarations as it found some remedies contrary to public order, such as self-help.11 However, despite this fact, since becoming a contracting State to the Convention it has exhibited a certain degree of predictability, allowing other mechanisms to repossess aircraft or permit contractual rights being enforced. Since the Convention came into effect, Mexican courts have consented to the ability to seek remedies that provide relief pending a final determination in accordance with Article 13.12 These remedies are applicable considering only that the Convention has become applicable law and, as such, would be ordered by a competent court. Furthermore, while IDERAs13 are not admitted in Mexico due to lack of the applicable declaration,14 the Mexican Federal Civil Aviation Agency has agreed to deregister aircraft under non-conditional deregistration powers of attorney. All this has been possible whilst staying in line with national procedural law as well as with the Convention, allowing Mexico as a contracting State to attain a high degree under the Index regardless that it has not made all the Qualifying Declarations.

III. Conclusion The Convention continues to serve as a tool for the harmonization and homogenization of international law, which results in an

the cape town convention and aircraft protocol  181 increase of certainty, minimization of risk, and financial benefits for the parties involved. Although the Qualifying Declarations provide primal enforceability, particularly when the effort is adequately made by contracting States upon implementation to establish constitutional compatibility between the treaty and their national legal system, integrating the former to the latter rather than vice versa; some clarity with regard to timeframe and procedure can still be achieved from the moment a State becomes a contracting State as the treaty’s principles, remedies, and the priority of registered international interests would become applicable to a certain degree, granting creditors a higher level of security however undermined. When legal assurance and certainty is provided to creditors, the industry flourishes, and major access to credit and better forms of credit are easily provided. The Cape Town Convention has constituted the most successful step in providing an international framework for this. Within the treaty’s realm, each contracting State must build its understanding of international obligations and compliance thereto. Aircraft financing in its very nature is susceptible to high risk. An aircraft can fly anywhere, have multiple regulations applicable, be subjects to third-party liens and detention rights by airports, tax authorities, and other stakeholders. Knowing that the rights of the creditor will be protected is pivotal both for the success of the industry and for its continued growth. After all, there is no more efficient and cost-effective means of travel than flying. Carlos Sierra

Notes 1.

Cape Town Convention on International Interests in Mobile Equipment (2001) and Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (adopted 16 November 2001, entered into force 1 March 2006). 2. “Cape Town Convention on Financing HighValue, Mobile Equipment,” American Journal of International Law Vol. 98, No. 4 (Oct 2004), pp. 852–854. 3. Roy Goode, “Private Commercial Law Conventions and Public and Private International law: The Radical Approach of the Cape Town Convention 2001 and Its Protocols,” International and Comparative Law Quarterly, Vol. 65, No. 3 (July 2016), pp. 525–526. 4. Jeffrey Wool, “Treaty Design, Implementation, and Compliance Benchmarking Economic Benefit – A Framework as Applied to the Cape Town Convention.” 5. Cape Town Convention on International Interests in Mobile Equipment (2001), Article 13, 54(1) (2), Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment, Article X, Article X (2), Article XIII, Article XI (3). 6. Thomas Traschler, “The Significance of the Qualifying Declarations under the Cape Town Convention,” Max Planck Institute for Comparative and International Private Law No.19/20. 7. Mark Lessard et al., “Of Swords and Shields: The Role and Limits of Courts in the Enforcement of the Cape Town Convention’s Substantive Repossession Remedies,” Cape Town Convention Journal, 2017, Vol. 6, 8. Ibid. 9. AWG, Cape Town Compliance Index, available at: https://ctc​-compliance​-index​.awg​.aero​/index. 10. Ibid., 1. 11. Political Constitution of the United Mexican States, Articles 14 and 16, “Constitución Política de los Estados Unidos Mexicanos.” 12. Cape Town Convention on International Interest in Mobile Equipment (2001), Article 15. 13. Cape Town Convention on International Interest in Mobile Equipment (2001), Article 25. 14. Ibid.

carlos sierra

52. The Chicago Convention (1944)

The Chicago Convention establishes the international basis of civil aviation (see Tomas Lisa (2012), p. 118) and is divided into four parts: Air Navigation, ICAO (International Civil Aviation Organization), International Air Transport, and Final Provisions. The I. The Chicago Convention first part consists of six chapters: General Principles and Application of the Convention; (1944): Preparatory Works Flight over Territory of Contracting States; and Authentic Texts Nationality of Aircraft; Measures to Facilitate On 7 December 1944, the Convention on Air Navigation; Conditions to Be Fulfilled International Civil Aviation was signed in with Respect to Aircraft; International Chicago by plenipotentiaries on behalf of Standards and Recommended Practices. The their respective governments. It was destined first chapter of the Chicago Convention is to replace the Paris Convention on Aerial broadly inspired by the Paris Convention.1 Navigation, 13 October 1919, which offered Article 1, based on the model of the equivaonly partial solutions to problems arising lent regulation in the Paris Convention, profrom navigation. However, while receiving vides that “The contracting States recognize many adhesions, the Convention was not that every State has complete and exclusive ratified by some important States, i.e., the sovereignty over the airspace above its terriSoviet Union, the United States, and China tory.” Given the use of the word “recognize” (see Ballarino Tito and Busti Silvio (1988), in both statements, it can be said that the prinp. 52). The Chicago Convention was strongly ciple here sanctioned was clearly, at the time, advocated by the United States, driven by the conceived by the Member States as codificaongoing expansion of its aeronautical indus- tion of customary international law. Article try. The United States called for a conference 2 of the Chicago Convention takes up the text for 1 November 1944, extending an invita- of the second paragraph of Article 1 of the tion to its allies in World War II and neutral Paris Convention and provides that “For the countries, without including the countries purposes of this Convention, the territory of they were fighting. Preparatory works were a State shall be deemed to be the land areas unusually short, with 54 delegations, so much and territorial waters adjacent thereto under so that the Conference was concluded after the sovereignty, suzerainty, protection or only 37 sessions. The Convention, originally mandate of such State.” With regard to airdrafted in English (over the years, the texts space over the high seas, full application in French, Spanish, Russian, Arabic, and is given to the principle of freedom, so that Chinese achieved equal authenticity), entered acts of coercion, such as forced deviation into force on 4 April 1947 in accordance with from the route and the obligation to land in Art. 91(b), on the 30th day after filing of the a predetermined airport, can be carried out 26th ratification, with universal application, only by aircraft flying under the same flag as and 193 contracting States today. In accord- the one subject to coercion. In any case, the ance with procedures laid out in Article 94, Chicago Convention “shall be applicable only there have been some amendments to the to civil aircraft, and shall not be applicable Convention, including Article 3 bis, obligat- to State aircraft” (Article 3(a)), i.e., aircraft ing States to refrain from resorting to the use used in military, customs, and police services of weapons against civil aircraft in flight. (Article 3(b)) or in any case used for public services (see Mendes de Leon Pablo (2017), Introduction to Air Law, p. 14). II. Chicago Convention: The second chapter deals with flight over Content and Features territory of contracting States regarding airThe Convention is the result of a compromise craft from other contracting States. The Paris between a more liberal approach proposed by Convention does not seem to distinguish the United States and the protectionist motions between scheduled and non-scheduled flights, of States, such as the United Kingdom, which but it would appear that it recognizes the sofeared that a regime of free airspace could defin- called technical freedoms, that is, expressly, itively confirm the supremacy of the United the freedom of innocent passage (Article 2) States, which, at the time of the Conference, and, implicitly, the freedom to land (as can accounted for 80% of the world’s airlines. be gathered from Articles 18, 22, and 24). 182

the chicago convention (1944)  183 The Chicago Convention definitively clarifies this, explicitly recognizing only aircraft not engaged in scheduled international air service “the right … to make flights into or in transit non-stop across the territory of other contracting State and to make stops for non-traffic purpose without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing” (Article 5, first paragraph). On 10 May 1952 (see ICAO Doc. 72-78-C/841), the ICAO Council adopted the definition of scheduled international air services. This is intended as a series of flights that possesses all the following characteristics: (a) it passes through the airspace over the territory of more than one State; (b) it is performed by aircraft for the transport of passengers, mail, or cargo for remuneration in such a manner that each flight is open to use by members of the public; (c) it is operated so as to serve traffic between the same two or more points, either according to a published timetable or with flights so regular or frequent that they constitute a recognizable systematic series. Therefore, charter flights enter this residual category of non-scheduled international air services that today are so widespread, while at the time were much less frequent. With the aim of implementing the second freedom of landing for technical reasons (such as repairs, refueling, etc.), the Chicago Convention foresees that “Every airport in a contracting State which is open to public use by its national aircraft shall likewise … be open under uniform conditions to the aircraft of all the other contracting States…” (Article 15). It also provides that “Each contracting State undertake, so far it may find practicable, to: (a) Provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation” (Article 28). For aircraft engaged in the carriage of passengers, cargo, or mail for remuneration or hire that do not carry out scheduled services, still only within agreements between contracting States, the Convention also recognizes commercial freedoms, determining that they “have the privilege of taking on or discharging passengers, cargo, or mail.” Nonetheless, the State in whose territory such embarkation or discharge takes place has the right to impose such regulations, conditions, or limitations as it may consider desirable (Article 5, second paragraph). In accordance with Article 6,

“No scheduled International air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.” Therefore, for non-regular flights, commercial freedoms are intended as recognized, unless otherwise expressed by the State interested in the service, while for regular flights, express authorization by the latter State is needed. Together with the Chicago Convention, two Agreements were signed: the International Air Services Transit Agreement (which entered into force on 30 January 1945) and the International Air Transport Agreement (which entered into force on 8 February 1945). The former grants regular flights the two technical freedoms, the latter also the following three commercial freedoms, foreseeing that each contracting State grants to the other contracting States (a) the privilege to put down passengers, mail, and cargo taken on in the territory of the State whose nationality the aircraft possesses (third freedom), (b) the privilege to take on passengers, mail, and cargo destined for the territory of the State whose nationality the aircraft possesses (fourth freedom), (c) the privilege to take on passengers, mail, and cargo destined for the territory of any other contracting State and the privilege to put down passengers, mail, and cargo coming from any such territory (fifth freedom). However, in practice, other freedoms have been added. Agreement on transit has enjoyed wide acceptance, while international air transport has had a much lower number of ratifications. It is preferred that States reciprocally recognize commercial freedoms through a dense network of bilateral agreements, understanding that each State cannot grant the right of cabotage on an exclusive basis to another State or airline of that State, although this happens in practice under regional agreements (see Tomas Lisa (2012), p. 120; Regulation 1008/08 (EC) of 24 September 2008 on common rules for the operation of air services in the Community (Recast)). Well in advance, the Convention recognized the importance (and potential danger) of pilotless aircraft, putting their flight under the authorization of the contracting State they fly over, and imposing on the State the obligation to ensure that the flight of such pilotless aircraft be so controlled as to obviate the danger to civil aircraft (Article 8). maria piera rizzo

184  elgar concise encyclopedia of aviation law As seen in the literature (see Ballarino Tito and Busti Silvio (1988), p. 74), analysis of all the regulations of the second chapter facilitates deducing principles that characterize the Convention, which are mentioned briefly here. First, the principle of non-discrimination (or equality of treatment) between aircraft of different nationalities. With regard to this principle, expressed in Articles 9 and 15, aircraft of contracting States engaged in international flights will be accorded the same treatment as each State reserves for its own aircraft similarly engaged in international flights. Again, from Article 13 the principle that establishes the application of the laws and national regulations can be inferred, which is to be balanced, however, with the principle of uniformity, found in Article 12 under Rules of the Air. The regulation provides that “Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention. Over the high seas, the rules in force shall be those established under this Convention.” Chapter III lays out the principles regarding nationality of aircraft, stating that these have the nationality of the State in which they are registered and cannot be validly registered in more than one State, still being able, however, to transfer their nationality from one State to another (Articles 17–18). Following the introduction of Article 83 bis to the Convention, certain functions and duties can be transferred from the State of registry to the State in which the operator has his principal place of business or his permanent residence. Regulations on measures to facilitate air navigation can be found in Chapter IV, while Chapter V gives the conditions to be fulfilled with respect to aircraft, i.e., documents to be carried in the aircraft (Article 29). Chapter VI is particularly important. The first part is titled “International Standards and Recommended Practices” (SARPs) (see entry Annexes to the Chicago Convention): in accordance with Article 37, ICAO, and thus the Council and in compliance with the procedure outlined in Article 90, these shall be adopted and amended as many as might be necessary from time to time. Through the use of SARPs, designated as Annexes to the Convention (now 19), the principle of uniformity can generally be achieved regarding maria piera rizzo

technical matters listed in Article 37 and others, identified at a later date. Besides SARPs, ICAO follows the Procedures for Air Navigation (PANS), which, however, do not have the same status as the former (SARPs) and are intended as specifications, referring to detailed operating practices (see Masutti Anna (2020), p. 27).

III. The International Civil Aviation Organization (ICAO): International Standards and Recommended Practices The International Civil Aviation Organization was formed by the Convention, which dedicates the second part to it. ICAO came into being on 4 April 1947, and, in October of the same year, it became a Specialized Agency of the United Nations. Its activity does not concern the commercial profiles of air navigation, i.e., the conditions of transport and the exchange of traffic rights, but, as inferred in Article 44, “the aims and objectives of the Organization are to develop the principles and techniques of International air navigation and to foster the planning and development of International air transport so as to: (a) Insure the safe and orderly growth of international civil aviation throughout the world; … (c) Encourage the development of airways, airports, and air navigation facilities for international civil aviation; …(h) Promote safety of flight in international air navigation,” just to mention the most important goals. ICAO is made up of an Assembly, a Council, and another five bodies, among which the most important is the Air Navigation Commission, entitled to recommend modifications of the Annexes to the Convention (Article 57) for adoption by the Council. The Assembly, which is made up of representatives of all Member States of ICAO, shall meet not less than once in three years, but it can also hold extraordinary meetings (Article 48). The body has all the powers attributed to the Organization, with the exceptions of those of the Council. Following Article 49 of the Convention, the Assembly has, inter alia, the powers and the duties to elect the 36 contracting States to be represented on the Council every three years and to vote annual budgets, and it may approve, by a two-thirds

the chicago convention (1944)  185 vote, the proposed amendments to the Convention, which enter into force for the States that have ratified them (Article 94). Among its other duties, the Council shall carry out the directions of the Assembly and adopt international Standards and Recommended Practices. SARPs, designated as Annexes to the Convention, must be voted by two-thirds of the Council and then be submitted to each contracting State (Article 54(l)). Any such Annex or any amendment shall become effective if, within three months of its submission to the contracting States, the majority have not registered their disapproval with the Council (Article 90). Literature holds that the SARPs are an expression of the “legislative” function of the Council (Ballarino Tito and Busti Silvio (1988), pp 85, 88, 92). It should be said, however, that also without any formal disapproval, any State may depart from international standards or procedures, giving immediate notification to the organization of the differences between its own practices and the standard and, should they disavow an amendment to the standard, they must notify the Council within 60 days from the adoption of said amendment (Article 38). This is not valid above the high seas, where divergence from Rules of the Air, in conformity with the Convention, is not permitted. Maria Piera Rizzo

Note 1.

The Convention, adopted on 13 October 1919, was born in the wake of the Conference that ended World War I. It enshrined the principle that each State has full sovereignty over its own airspace, establishing however that each contracting State must grant freedom of innocent passage on its territory to the aircraft of the other contracting States. Freedom of landing is implicitly recognized. The attitude of the contracting States with regard to commercial freedom, on the other hand, is certainly negative (Ballarino Tito and Busti Silvio (1988) p. 54).

References Ballarino Tito and Busti Silvio (1988), Diritto aeronautico e spaziale, Giuffrè. Bartsch R. (2020), International Aviation Law, second edition, Routledge. Convention on International Civil Aviation, 7300/9. Masutti Anna (2020), Il diritto aeronautico, third edition, Giappichelli. Mendes de Leon Pablo (2017), Introduction to Air Law, tenth edition, Kluwer Law International BV. Milde M. (2016), International Air Law and ICAO, third edition, Essential Air and Space Law 18, series editor M. Benko, Eleven International Publishing. Tomas Lisa (2012), Chicago Convention (1944), in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, University Press Oxford.

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53. Civil Aviation Authority I. Definition The Civil Aviation Authority (CAA) is an organization such as a government body or other public entity that, in the national and institutional context, has the authority and responsibility to regulate and oversee civil aviation. National CAA represents the State in the major international civil aviation organizations, with which it maintains continuous relations of comparison and collaboration. More particularly, the CAA institutional mission is closely linked to the activities of the International Civil Aviation Organization (ICAO).

II. The Chicago Convention and the Role of Civil Aviation Authority Since its beginnings, the development of civil aviation has been shaped by the recognition of the principle of State sovereignty over the airspace above its territory (Mendes de Leon [2017]; Masutti [2020]; Zunarelli and Comenale Pinto [2020]; Lefebvre d’Ovidio and Pescatore and Tullio [2022]). In this regard, every State has developed specific national requirements that resulted in differing regulations from country to country. More specifically, to ensure safety and security in the air transport, States needed to regulate their relationships in the aviation field on a global level through signing the Chicago Convention on International Civil Aviation in 1944. ICAO, a specialized United Nations agency established in 1947 to implement the provision of the Chicago Convention, plays an indispensable role in the harmonization process of legislation (Mendes de Leon [2008]; Weber [2021]). Among its principal objectives (see Art. 44 of The Chicago Convention), ICAO pursues the promotion of safety and the orderly development of civil aviation worldwide through Standards and Recommended Practices (SARPs). They cover both technical and operational aspects of international civil aviation, dealing with the following subjects: communications systems and air navigation aids, including

ground marking; characteristics of airports and landing areas; rules of the air and air traffic control practices; licensing of operating and mechanical personnel; airworthiness of aircraft; registration and identification of aircraft; collection and exchange of meteorological information; log books; aeronautical maps and charts; customs and immigration procedures; aircraft in distress and investigation of accidents; and such other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate, like environmental protection, security, the safe transport of dangerous goods by air, and safety management (see Art. 37 of The Chicago Convention and Annexes 16, 17, 18, 19 ICAO). Article 12 of the Chicago Convention requires each contracting State to commit itself “to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention.” Of the same wording is the subsequent Article 37, which binds States parties “to collaborate in securing the highest practicable degree of uniformity.” In this context, States, by their national civil aviation authorities, continue to play a major role: each State authorizes flights and stops of aircraft registered in another contracting State, in compliance with the principle of non-discrimination, collaborate and maintain uniform regulations to the extent possible with other contracting States, and facilitate safe air navigation (Wassembergh [1988]). The nationality of the aircraft is the key to analyze international civil aviation rules and to understand the mission of national aviation authorities (Mendes de Leon [2017]). National rules provide conditions for registration. The State with which the aircraft is registered is responsible for its operations. According to the Chicago Convention, this State has the duty to ensure that registered aircraft comply with relevant laws and regulation. The State of registry is internationally responsible for the issuance of a Certificate of Airworthiness (CoA) and of personnel licenses serving on such aircraft. Usually, the civil aviation authority acts as the keeper of the national register. CAA safety activities involve the certification and control of the safety conditions of aircraft and airports as well as the assessment of the suitability of air operators, flight personnel, technical personnel, and maintenance personnel to guarantee

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civil aviation authority  187 safety with regard to view of the design, construction, maintenance, and operation of aircraft. Safety activities include the surveillance programs of aircraft, certified organizations, airports, and air navigation services as well as national and international programs on air carriers. In the field of security, the CAA is the authority responsible for coordinating and monitoring the implementation of common standards for the prevention of acts of unlawful interference in civil aviation. CAA may be interested in the investigation of air accidents. ICAO emphasizes the importance of this function such that it is performed by a separate body, an accident investigation authority, ensuring the objectivity and impartiality of investigative activity, in accordance with Annex 13 ICAO and, in the European Union (EU), with Regulation (EU) 996/2010. CAA is responsible for regulating air traffic control, while, usually, a separate agency will perform air traffic control functions. Since competences in the economic field are not covered by the Chicago Convention, they are retained by the States. Terms and conditions to the market access are established by domestic rules. A different case is the EU internal market, which is governed by common rules for the operation of air services in the UE (mainly the Regulation (EU) 1008/2008). Thus, national CAAs have jurisdiction to assign airport to operator, as well as structures/assets, and the access to the ground services (handling) market. CAA draws up and proposes development planning for the national airport system. Construction and operation of airports are generally entrusted to private companies or local government authorities that may own and operate single airports. CAA regulates tariffs, formulates rules, and applies international Air Services Agreements (ASAs). Considering licensing of carriers, the CAA verifies compliance with safety requirements, attested by the possession of an Air Operator Certificate (AOC), issued by the State of the operator of the airline, environmental standards, liability and insurance conditions. CAA examines as well as the economic issues of international air transport. The improvement of the principles and techniques of international air navigation, among the main aims and objectives of the ICAO at the global level, can also be provided

at a regional level. Art. 55(a) of the Chicago Convention provides that, about “Permissive functions,” the Council may: “(a) Where appropriate and as experience may show to be desirable, create subordinate air transport commissions on a regional or other basis and define groups of States or airlines with or through which it may deal to facilitate the carrying out of the aims of this Convention.” On this basis many regional organizations are active in the promotion of aviation safety through technical cooperation of national aviation authorities, such as the African Civil Aviation Commission (AFCAC, since 1969), the Latin American Civil Aviation Commission (LACAC, since 1973), and the Arab Civil Aviation Commission (ACAC, since 1996).

III. The Role of Civil Aviation Authority in the European Union In Europe, technical cooperation between national aviation authorities started in 1955 with the creation of the European Civil Aviation Conference (ECAC), an intergovernmental organization, with purely advisory functions. In this context, an associated body, the Joint Aviation Authorities (JAA), was created in 1970, representing the civil aviation regulatory authorities of several European States, even non-EU members, that had agreed to cooperate in developing and implementing common safety regulatory standards and procedures. JAA, which was not a regulatory body, was disbanded in 2009. Under Regulation (EC) 1592/2002, the European Aviation Safety Agency (EASA) was created, a Europe-wide regulatory authority that has absorbed most functions of the JAA. Regulation and certification in the field of civil aviation safety was essentially taken away from the EU Member States and given to EASA. In the wider process of European integration, EASA plays a leading role in ensuring the highest common level of safety protection for EU citizens and of environmental protection, as well as a single regulatory and certification process among Member States. The role of the national CAA has been further limited by Regulation (EU) 2018/1139. According to its Art. 75(g), the EASA functions include to “assist the national competent authorities in carrying out their tasks, in anna l. melania sia

188  elgar concise encyclopedia of aviation law particular by providing a forum for exchanges of information and expertise.” Of particular importance is Article 64.1, which provides for reallocation of responsibility upon the request of Member States: 1. A Member State may request the Agency to carry out the tasks related to certification, oversight and enforcement referred to in Article 62(2) with respect to any or all natural and legal persons, aircraft, safety related aerodrome equipment, ATM/ANS systems and ATM/ANS constituents, flight simulation training devices and aerodromes for which the Member State concerned is responsible under this Regulation and the delegated and implementing acts adopted on the basis thereof.

Once the Agency accepts such a request, it shall become the competent authority responsible for the tasks covered by that request and the requesting Member State shall be relieved of the responsibility for those tasks. In fact, there are assigned to EASA a very wide range of regulatory certification and inspection powers (see Art. 75 Regulation EU 2018/1139), in the context of a complex reorganization of aviation safety management activities for the entire sector, through new provisions for European and national programs, like SERA (Standardised European Rules of the Air) and U-space (set of services aimed at regulating the safe and efficient access of drones to airspace). Thus, EASA has the competence to oversee the certification of aeronautical products and their parts and of individual aircraft, airworthiness and environmental protection; organizations and aircrew, aerodromes, air traffic control; air operations; ATM/ANS provision of services, Air Traffic Management/Air Navigation Services; air traffic controllers; up to the certification of unmanned aircraft (civil drones). On the latter subject, with the Commission Implementing Regulation (EU) 2019/947 (entered into force on 31 December 2020), the national aviation authorities are competent only for operations that fall under the provisions of Article 2(3) (a) of Regulation (EU) 2018/1139 and those aspects that remain within the competence of the Member State, namely: aircraft, and their engines, propellers, parts, non-installed equipment and equipment to control aircraft remotely, while carrying out military, customs, police, search and rescue, firefighting, border control, coastguard or

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similar activities or services under the control and responsibility of a Member State, undertaken in the public interest by or on behalf of a body vested with the powers of a public authority, and the personnel and organizations involved in the activities and services performed by those aircraft.

In light of the innovations introduced, the national aviation authorities of the EU Member States are not only the main actors in permanent technical cooperation between the States parties to the Chicago Convention. They are also the bodies responsible for the correct application of European safety and security standards and EU regulations on passenger rights as well as to impose administrative sanctions against non-compliant parties. Anna L. Melania Sia

References Anna Masutti, Il diritto aeronautico (3th edn, Giappichelli 2020). Antonio Lefebvre d’Ovidio, Gabriele Pescatore and Leopoldo Tullio, Manuale di diritto della navigazione (16th edn, Giuffré 2022). Convention on International Civil Aviation (The Chicago Convention). 15 UNTS 295, ICAO Doc 7300. 75–76. Henry Abraham Wassembergh, ‘New Aspects of National Aviation Policies and the Future of International Air Transport Regulation’ [1988] XIII(1) Air Law 18–34. Ludwig Weber, International Civil Aviation Organization (4th edn, Wolters Kluwer 2021). Pablo Mendes de Leon, Introduction to Air Law (10th edn, Wolters Kluwer 2017). Pablo Mendes de Leon, International Civil Aviation Organization (ICAO), in Rudigher Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press - Max Planck Foundation for International Peace and the Rule of Law 2008) 413–417. Regulation (EC) 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast). Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union

civil aviation authority  189 Aviation Safety Agency, and amending Regulations (EC) 2111/2005, (EC) 1008/2008, (EU) 996/2010, (EU) 376/2014 and Directives 2014/30/EU and 2014/53/ EU of the European Parliament and of the Council, and repealing Regulations

(EC) 552/2004 and (EC) 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) 3922/91. Stefano Zunarelli and Michele Comenale Pinto, Manuale di diritto della navigazione e dei trasporti (4th edn, Cedam 2020).

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54. Code Share Agreements

to the routes operated by the operating carrier, can increase its network coverage. The latter can see an increase in the load factor of its flight. Very often Code Share Agreements are part of more complex partnerships referred to as “Airline Alliances” (Li [2000]; Gayle [2007]).

I. Introduction Cooperation between airlines is arguably one of the most vital features of the modern aviation industry. Cooperative ventures represent functional means for air carriers to operate in a global network and survive in a competitive market (ICAO [1997]). Code Sharing is one of the arrangements through which these forms of collaboration are implemented. It entails the practice of one airline selling tickets for flights operated by another airline. Annex I to Comm. Reg. (EU) No 965/2012 contains one of the few legal definitions of “code share,” describing it as “an arrangement under which an operator places its designator code on a flight operated by another operator, and sells and issues tickets for that flight.” A similar meaning is given to Code Sharing by other Authorities (see for example US Department of Transportation) and by scholars (see Günther [1997]). Thus, the main feature of the arrangement lies in the fact that it allows the selling airline (marketing airline) to trade services using its designator code on flights performed by another air carrier (operating airline), whereas, traditionally, designator codes were used inter alia to identify the airline operating a flight. These codes are assigned to airlines by the International Air Transport Association (IATA) and, in principle, every airline uses its own code in reservations, schedules, timetable, ticketing, etc. As a result of Code Sharing, the designator code on a code shared flight may differ from the one assigned to the airline which operates it. The same flight might be identified by the designator code of the marketing airline, which sells it as a service of its own (Conti [2001]). The foregoing relies on special agreements between airlines, known as “Code Share Agreements,” where the terms and conditions under which airlines can market and place their designator code on air transportation services provided by another contracted airline are set forth. Both the marketing and the operating carrier can garner benefits from a Code Share Agreement. The former, thanks to the access

II. Background, Contents, and Types of Code Share Agreements Scholars trace the origins of modern Code Share Agreements to the arrangements set up in the late 1960s by the American airline Allegheny (de Groot [1994]; Humphreys [1994]). To maximize the efficiency of its fleet, Allegheny entrusted small independent carriers to operate short routes on its network. As part of a wider partnership, including franchising elements, these small carriers operated the flights commissioned by Allegheny under its designator code (using the brand “Allegheny Commuter”). Agreements such as those between Allegheny and its partners were not immediately imitated by other airlines. But developments in the aviation industry, in particular both the success of models based on hub and spoke networks that followed the US Airline Deregulation Act and the introduction of computer reservation systems (CRSs), illustrated the economic potential of Code Share Agreements. In fact, while some Code Sharing Agreements are between airlines operating routes connecting the same origins and destinations (Parallel Code Sharing), others concern routes that are operated by only one company, expanding the partner company’s airline network (Complementary Code Sharing). For example: Airline A operates flight x, whose starting point is peripheric and not very distant from the arrival point. This may be a hub where long-haul (often international) flights operated by Airline B have their departure point, including, for example, flight y. Airline B, by utilizing a Code Sharing Agreement advertises and markets flight x. The use of the same designator code of Airline B on both flight x and flight y links the two flights so that they appear together on CRSs as a result for a connection from the original point of departure of flight x and the point of arrival of flight y. Applying the same model to other flights that have the same characteristics

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code share agreements  191 of flight x, Airline B, as the marketing carrier of a Code Sharing Agreement, can feed its long-distance flight y at its hub airport, attracting passengers traveling from peripheral airports by code shared flights with one or different operating carriers. This second form of Code Sharing reflects some similarities with interlining (which allows an airline to market two different carriages, one operated by itself, the other by a partner airline operating under the latter’s own designator code). In this respect, Code Sharing has been referred to as a “variation on interlining” (Humphreys [1994]) or “glorified form of interlining” (Franklin [1999]). The main difference between the two agreements lies in the fact that the marketing carrier in a Code Sharing Agreement does not sell the code shared flight as an agent of the operating carrier, but contracts on its own name (Conti [2001]). Affinities with Code Sharing can also be found between other airline cooperation agreements. Both Code Sharing and airline franchising agreements involve the use of the designator code of the contractual carrier, but, in the latter, it is part of a wider arrangement, including other identification elements (e.g., the livery of the aircraft, the brands, etc.) to such an extent that the operating carrier’s identity is hardly identifiable to the contracting carrier’s clients. Wet leasing, as well as Code Sharing, provides that the contractual carrier (lessee) uses its designator code when it markets the tickets of the flight operated by a different carrier, but normally the lessee’s code is the sole one used on that flight (Morandi [2013]). It has been argued that the broad spreading of Code Share Agreements worldwide started to occur after the Fourth ICAO Worldwide Air Transport Conference held in Montreal in 1994 (Folchi [2015]). Currently, Code Sharing Agreements provide different solutions in terms of marketing a carrier’s access to the seats of a code shared flight. The main two alternatives are blocked space and free flow. Blocked space Code Sharing provides that a certain number or percentage of seats on the code shared flight are allocated to the marketing carrier. The cost paid by the marketing carrier to the operating carrier is not related to the number of seats actually sold by the former, but solely to the seats allocated. To mitigate the marketing carrier’s potential loss, some agreements allow the return of any

unsold seats to the operating carrier before a given deadline (soft block). Under a free flow Code Sharing Agreement, the marketing carrier can sell seats on the code shared flight without being subject to predetermined limits with regard to numbers or percentage. The operating carrier remains in control of the seat availability and can determine when to stop the marketing carrier’s access to the code shared flight’s seat inventory. The revenues deriving from the code shared flight are normally settled between the companies with the application of prorate agreements.

III. Legal Issues 1. Traffic Rights Since, in principle, “every State has complete and exclusive sovereignty over the air-space above its territory” (Art. 1, the 1944 Chicago Convention on International Civil Aviation), States have concluded bilateral and multilateral agreements authorizing traffic rights for routes in relation to their territory. These agreements are usually called Air Transport Agreements (ATAs) or Air Services Agreements (ASAs). Problems may arise when one of the airline partners of a Code Sharing Agreement has no or limited traffic rights on a stipulated destination of a code shared flight. In these cases, Code Sharing may be considered as a means to circumvent the limits fixed in ATAs. For example, German authorities alleged that the 1992 Code Sharing Agreement between Northwest Airlines and KLM, which introduced a code shared air service between the United States and Munich via Amsterdam, violated the frequency limitations set forth in the bilateral ASA between the United States and Germany. As a consequence, the code shared services were prohibited as they were considered to amount to the establishment of new routes on the part of Northwest that were unauthorized by the German government (Günther [1997]). The issue was resolved within the European Union, by Reg. (CE) 1008/2008, expressly adopted with the intent, among others, to overcome “existing restrictions applied between Member States, such as restrictions on code sharing on routes to third countries” (recital No. 10). Art. 15, paragraph 4, explicitly states that when operating intra-Community air services, a Community air carrier

alessandro zampone and alessandro cardinali

192  elgar concise encyclopedia of aviation law shall be permitted to combine air services and enter into Code Share arrangements. It also affirms that any restriction on the freedom of Community air carriers to operate intraCommunity air services arising from bilateral agreements between Member States is superseded. Furthermore, European air carriers shall be permitted by Member States to combine services and enter into Code Share Agreements with non-European Air Carriers, for flights connecting an airport within their territory and one located in a third country (Art. 15, paragraph 5). Both paragraphs 4 and 5 of Article 15 subject the freedom and rights of air carriers to competition rules (see next section). As far as Code Sharing Agreements between European and US airlines are concerned, starting from March 2008 the first stage of EU-US Open Skies Agreements came into effect, allowing air carriers from Members States and the United States to enter into Code Sharing Agreements not just between themselves but also with air carriers based in countries not party to the Open Sky agreement. 2. Antitrust Laws and Competition We have just seen how the regulatory framework governing access to the air transport market, on the one hand, largely admits Code Sharing Agreements but also demonstrates the emphasis given to compliance with competition rules. It has been argued that, along with the progressive implementation of the market’s liberalization process, greater concerns have emerged in relation to fair competition, as air transport is a market where unfair competition can have particularly disruptive effects that can be difficult to counterbalance (Gergely [2020]). Specific legislation safeguarding fair competition in the sector of air transport are in force in the United States (International Air Transportation Fair Competitive Practices Act – IATFCPA) as well as in the European Union (Reg. (EU) 2019/712). Code Sharing Agreements may have the effect of distorting competition. They are considered horizontal agreements capable of decreasing the exposure to competition of partner airlines. Moreover, they may include supplementary arrangements creating or strengthening a dominant player (e.g.,

franchising agreements) as well as implementing a common policy on ticket pricing on the code shared flights (Severoni [2010]). Economic analysis has shown that, apart from their anti-competitive effects, Code Sharing Agreements and alliances between airlines can produce benefits for passengers, such as expanded networks and reduced fares (Brueckner, Lee & Singer [2011]). The consumer-benefit argument, together with the wide variety of arrangements that can be set forth in a Code Share Agreement, suggests that the anti-competitive effects of this instrument of cooperation between airlines should be evaluated on a case-bycase basis (Morandi [2013]; ICAO [1997] Humphreys [1994]). 3. Liability toward Passengers When a flight is code shared, some passengers – those who purchase the transportation service from the marketing airline – enter into a contract with a subject different from the one actually performing the service, i.e., the operating carrier. The participation of two different air carriers in one carriage may give rise to some questions relating to liability in the case of any damages suffered by the passenger. The main issue being from which of the two carriers the passenger can claim damages. The 1929 Warsaw Convention for the unification of certain rules relating to international carriage by air takes into account the situation where two air carriers are involved in one carriage, specifically considering successive and combined carriage (Arts. 30 and 31). The 1961 Guadalajara Convention, supplementary to the Warsaw Convention for the unification of certain rules relating to international carriage by air performed by a person other than the contracting carrier, introduced the concepts of “contracting carrier” and “actual carrier” (Art. 1). The same approach was adopted in the 1999 Montreal Convention for the unification of certain rules for international carriage by air. It envisages successive (Art. 36) and combined (Art. 38) carriage as well as the distinction between contracting carrier and actual carrier (Art. 39). While, especially under the pre-Montreal regime, it has been suggested that the rules on successive carriage may apply to code shared flights (Franklin [1999]), it seems widely accepted that code shared flight passengers – unlike the situation of a successive carriage,

alessandro zampone and alessandro cardinali

code share agreements  193 where the parties agree that the carriage is performed by several different carriers – contract the carriage with one airline only (Conti [2001]; Günther [1997]). As a result, the subject whom passengers from a code shared flight can bring action in damages against, based on the 1999 Montreal Convention, is determined by applying the rules on the contracting carrier and operating carrier. Thus, the marketing airline and operating airline, as contracting carrier and operating carrier, respectively, are to be considered jointly and severally liable for any damages suffered by the passenger who bought the code shared services from the marketing airline under Art. 40. When the marketing airline sells a service that is only partly performed by the operating partner, the latter is liable solely for that part they operate while the former is liable for the whole carriage. The discrepancy between the identity of the carrier resulting from the designator code and the identity of the actual carrier of the flight may result in passengers being misled on core information on the service purchased. In the context of the growing attention for consumer protection in the transportation market, regulation has focused on passenger access to information and transparency. In the EU the issue is currently addressed by Regulation (EC) No 2111/2005 (Art. 11). Attention to the identification of the operating carrier is also given by the Code of Conduct for CRS (Regulation (EC) No 80/2009, Annex I par. 5 and 10). At the international level, the ICAO adopted Core Principles on Consumer Protection in 2015, providing that, before traveling, passengers should have access to information such as, among others, “identity of the airline actually operating the flight, and advice on any change occurring after the purchase as soon as possible” (ICAO 2015). Alessandro Zampone and Alessandro Cardinali

References Jan J. Brueckner, Darin N. Lee & Ethan S. Singer, ‘Alliances, Codesharing, Antitrust Immunity, and International Airfares: Do Previous Patterns Persist?’ 7(3) Journal of Competition Law & Economics 573 602 (2011). Commission Regulation (EU) No 965/2012 of 5 October 2012 laying down technical requirements and administrative

procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council, OJ L 296 25.10.2012, p. 1. Cristian Conti, ‘Code-Sharing and Air Carrier Liability’ 26(1) Air & Space Law 4 19 (2001). Jan Ernst C. de Groot, ‘Code-Sharing – United States’ Policies and the Lessons for Europe’, 19(2) Air & Space Law 62 74 (1994). Mario O. Folchi, Tratado de derecho aeronáutico y política de la aeronáutica civil, (Astrea, 2015). Mark Franklin, ‘Code-Sharing and Passenger Liability’ 24(3) Air & Space Law 128 133 (1999). Philip G. Gayle, ‘Airline Code-ShareAlliances and Their Competitive Effects’ 50 Journal of Law and Economics 781 819 (2007). Máté Gergely, ‘Fair Competition in International Air Transport’ 45(1) Air & Space Law 1 28 (2020). Klaus Günther, ‘Legal Implications of CodeSharing Services – A German Perspective’ 22(1) Air & Space Law 8 12 (1997). Barry K. Humphreys, ‘The Implications of International Code Sharing’ 1(4) Journal of Air Transport Management 195 207 (1994). ICAO, ‘Implication of Airline Codesharing’ Cir 269-AT/110 (1997). ICAO, ‘Core Principles on Consumer Protection’ (2015), available at https:// www​.icao​.int​/sustainability​/ Documents​/ ConsumerProtection​/CorePrinciples​/ ICAO​ -CorePrinciples​_EN​.pdf (last accessed 5th September 2022). Michael Z.F. Li, ‘Distinct Features of Lasting and Non-lasting Airlines Aliiances’ 6 Journal of Air Transport Management 65 73 (2000). Francesco Morandi (ed.), I contratti del trasporto, (Zanichelli editore, 2013). Regulation (EC) No 2111/2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating air carrier, and repealing Article 9 of Directive 2004/36/EC, OJ L 344 27.12.2005, p. 15. Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules

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194  elgar concise encyclopedia of aviation law for the operation of air services in the Community, OJ L 293 31.10.2008, p. 3. Regulation (EC) No 80/2009 of the European Parliament and of the Council of 14 January 2009 on a Code of Conduct for computerised reservation systems and repealing Council Regulation (EEC) No 2299/89, OJ L 35, 4.2.2009, p. 47. Regulation (EU) 2019/712 of the European Parliament and of the Council of 17 April 2019 on safeguarding competition in air

transport, and repealing Regulation (EC) No 868/2004 OJ L 123 10.5.2019, p. 4. Cecilia Severoni, Il Code Sharing, (Giuffrè Editore, 2010). U.S. Departament of Transportation, ‘Code Sharing’ available at https://www​ .transportation​.gov​/policy​/aviation​-policy​ /licensing​/code​-sharing (last accessed 5th September 2022).

alessandro zampone and alessandro cardinali

55. Combined Single Limit Combined Single Limit, also abbreviated as CSL, is a type of insurance commonly taken out in general aviation. It is characterized by a combination of an owner liability insurance/ third-party liability insurance and a passenger liability insurance with a combined uniform insurance sum that covers all injuries or property damage in an incident. This combined uniform insurance amount is called Combined Single Limit. Air carriers and aircraft operators are subject to a specific liability regime both under national and under international law. These regimes provide for strict liability, which means regardless of the airlines’ or operator’s negligence or fault, thus based solely on the fact that the damage occurred during the operation of the aircraft. In the aviation field, there are various kinds of insurance, especially third-party liability insurance, passenger liability insurance, hull insurance, personal accident insurance, engine breakdown insurance, business interruption insurance, war and terrorism insurance, and tailor-made insurance covers depending on the needs and wishes of the insured. Various types of insurance can be taken out on an optional basis. However, third-party liability insurance and passenger liability insurance are compulsory for air carriers and for aircraft operators under EU law and under international law as well as per the national laws of various States.

I. Passenger Liability Insurance The passenger liability insurance covers damages that occur during the transportation of persons and baggage on the aircraft and thus bodily injury to passengers, death of passengers, damage to baggage, as well as loss of baggage. Article 50 of the Convention for the Unification of Certain Rules for International Carriage by Air, henceforth referred to as the Montreal Convention, stipulates that the signatory States shall “require their carriers to maintain adequate insurance covering their liability under this Convention,” i.e., for claims arising out of bodily injury, death,

and delay of passengers as well as damage to and loss or delay of baggage or cargo. The Montreal Convention, including the obligation to take out insurance concerning claims under this international treaty, applies to air carriers and aircraft operators of all signatory States, currently 137 parties. On the European Union (EU) level, the obligation to take out insurance for liability in respect of passengers, baggage, and cargo is stipulated: Regulation (EU) 758/2004 applies to all air carriers and to all aircraft operators flying within, into, out of, or over the territory of an EU Member State. As per Article 4.1 of Regulation (EC) 785/2004 air carriers and aircraft operators “shall be insured in accordance with this Regulation as regards their aviation-specific liability in respect of passengers, baggage, cargo and third parties.” Article 6 of Regulation (EC) 785/2004 provides for minimum insurance covers: ●

●

●

liability in respect of passengers: 250 000 SDRs per passenger in commercial operations; liability in respect of baggage: 1 000 SDRs per passenger in commercial operations; liability in respect of cargo: 17 SDRs per kilogram in commercial operations.

The minimum insurance amount is indicated in Special Drawing Rights (SDRs), which are a fictious currency unit and a unit of account defined and maintained by the International Monetary Fund. The minimum insurance amounts do not apply to flights operated by non-EU air carriers and by aircraft operators using aircraft registered outside the EU that do not involve a landing in or a takeoff from within the EU.

II. Third-party Liability Insurance The owner liability insurance/third-party liability insurance encompasses the liability of the aircraft owner and the legal liability for the use of the aircraft, covering the personal liability of all persons involved in the operation of the aircraft. It covers the death of a person outside the aircraft or the damage to an object outside the aircraft. As set out above, Article 4.1 of Regulation (EC) 785/2004 also stipulates

195

196  elgar concise encyclopedia of aviation law Table 55.1  Minimum insurance coverage Category

In this insurance type, the sum of the statutory minimum coverage amounts of the two components form the lowest possible coverage amount in the CSL coverage. Due to the uniform combined coverage sum, the insured profits from a higher amount for each of the two areas individually. This guarantees an optimized insurance protection as much higher coverage amounts are available for each component than in the case of separate insurances. Claudia Hess

MTOM

Minimum insurance

(kg)

(million SDRs)

1

< 500

0,75

2

< 1 000

1,5

3

< 2 700

3

4

< 6 000

7

5

< 12 000

18

6

< 25 000

80

7

< 50 000

150

8

< 200 000

300

References

9

< 500 000

500

10

≥ 500 000

700

Convention for the Unification of Certain Rules for International Carriage by Air (The Montreal Convention). F Dörner, M Peschke and J Hägele (2019). Luftfahrt Haftung und Versicherung. Verlag Luftverkehr. E Giemulla and R Pultke (2019). Luftfahrt Haftung und Versicherung. HDI Gerling. M Peschke. ‘Luftfahrt-Versicherungen in Europa Haftung und Verantwortung des Halters und des Piloten’ accessed 30 April 2022. Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators. J Reese. “Flugunfälle: Haftung und Haftpflichtversicherung” accessed 30 April 2022. C Schaefer (2017). Recht des Luftverkehrs. Signatory States of the Montreal Convention: https://www​.icao​.int​/secretariat​/ legal​/ list​ %20of​%20parties​/mtl99​_en​.pdf.

that insurance needs to be taken out in respect of aviation-specific liability in respect of third parties. Article 7.1 determines a minimum insurance cover per accident, depending on the Maximum Takeoff Mass (MTOM). ​ A provision stipulating a compulsory insurance for third-party damage is contained neither in the Montreal Convention nor in any other international treaties. As per Article 11 of Regulation (EC) No. 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community, an air carrier shall be insured to cover liability in case of accidents with respect to mail.

III. Combined Single Limit As set out above, Combined Single Limit insurance policies are a combination of third‑ party liability insurance and passenger liability insurance.

claudia hess

56. Competition in Aviation I. Background The Civil Aviation sector along with the hospitality sector had a huge setback the world over during the past two years plus due to the COVID-19 pandemic. Now that the pandemic has ebbed, passenger demand is increasing rapidly worldwide. Low-cost airlines such as Eurowings, Ryanair, and Wizz Air are reaping the benefits of this, but they compete intensely with each other. Leisure travelers are happy, but this situation is hardly sustainable in these inflationary times. The crude oil price had gone well above US$ 100 for a barrel but is now becoming more sensibly priced. While modern efficient engines are being produced, the older ones are being retired.  Boeing and Airbus have about 80% of the market and are expecting a boom. This would be a shot in the arm for Boeing, which faced a spate of problems arising out of two Max8 crashes: Lion Air and Ethiopian. Smaller manufacturers like ATR, Bombardier, and Embraer will also benefit from this uptick. On a recent domestic flight in India, all the seats were filled. While the price of crude oil was playing truant, the government in India has provided the following fiscal concessions: ●

●

Goods and Services Tax (GST) on Domestic Maintenance, Repair, and Overhaul Services reduced from 18% to 5%; VAT on ATF reduced by 23 States to below 5%. Other 13 States and Union Territories are expected to follow.

Aviation is a major global service industry in the world. It has created 11.3 million direct jobs and many more indirect ones and contributes a revenue of 4.1% to the global GDP. If aviation were a country, it would rank 17th in size globally by GDP. Since its first operation with passenger and mail services in the year 1903, the airline industry has undergone wide-ranging changes, keeping up with the fast development of technology and the evolution of the world economy. While the relationship between the performance of the airlines of the world and the broader economy is complex, it is

certainly one of mutual dependence. The economic performance of the airlines is considerably influenced by the world’s economic growth. The airline industry has nevertheless risen at a pace faster than the general economic growth. During the last 40 years, air transportation grew three times faster than the world economy. It appears from a distance that this industry performs a very basic function of simply transporting people and goods. On closer examination, one can observe a constellation of factors, including aviation agreements, a wide range of constraints, and economic situation of countries besides technical issues, that make airlines a highly complex industry. The highly competitive and technologically sophisticated nature of the industry means that it has several ramifications for national competitiveness strategies. With this kind of competitiveness, the reader would have observed that the flying experience has become quite different from what it was – luxurious for some but, in general, a lot less comfortable. Services have taken a back seat since problems like legroom, choice of seat, delayed flights, missed connections, and crowded lounges are not addressed to the satisfaction of the passengers. However, flying is now a whole lot safer than it ever was; Max 8 problems are behind us now. Despite technological, economic, and managerial challenges, the aviation industry has created opportunities. Challenges include the environment, increasing price of fuel, and the Ukraine war. In the face of intense globalization and fierce competition for market share and survival, performance outcome of airlines can differ greatly from country to country, depending on strategic choices as well as global, regional, and national economic development and conditions.

II. Oligopolistic Nature of Civil Aviation With the rise in income levels of the working groups and widening middle-class demography, and cheaper airfares as mentioned above, competition in the last few decades has become cut-throat. The airline industry is constantly facing structural changes and is forced to adapt as is reflected in entries into and exits from local and global markets. In such a dynamic environment, it is a challenge to achieve and sustain growth.

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198  elgar concise encyclopedia of aviation law In order to provide the best possible service at the lowest price, a healthy level of competition is important in this, as in any other industry. Airlines carry high fixed costs, which include acquisition and maintenance of Aircraft and crew, besides ground personnel and cost of maintenance. The variable costs are often quite low in comparison. This combination of factors gives an advantage to large airlines. It can be seen, that they dominate the field in India, as they do elsewhere. After deregulation, competition pushed the fares so low that several airlines could manage only to cover variable costs if they were lucky. Airlines do not typically lower fares below variable costs; if they did then it would be cheaper not to fly at all. Mere survival is a major achievement in an industry characterized by bankruptcies, mergers and acquisitions, birth of new players, and formation of alliances. More generally, achieving a certain market size is a prerequisite for success in this highly dynamic industry, which is characterized by continuous and extensive structural changes. Gaining a market share based on cost competitiveness and product competitiveness and other factors are the primary, and the ultimate, goal of airlines. In addition to their overall business strategies, the market structure of the countries where the airlines are based significantly shape their national, regional, and global competitiveness. The relationship between airlines and their home country market is interdependent, much like the relationship between airlines and the economy as a whole. Countries have increasingly noted that airlines are a precondition for their economic development. Mergers, acquisitions, and alliances are always to be expected in the U.S. Major players, such as American Airlines, Delta, and United Airlines, have started long overdue transformation processes through bundling of capital, etc. If oligopolistic nature is now a reality in this industry why then is it a cause for concern? An oligopoly can introduce complications for consumers in a number of ways. For one, a smaller number of firms means less competition, which, in turn, implies that firms can raise prices more easily without the threat of losing customers. It is difficult to enter an oligopolistic industry because of high barriers which include high start-up costs (a new Boeing 737, for example, can cost upwards of ravi nath

$90mn). In addition, there is competition for landing slots, gates, and economies of scale. However, this competition is on the point of turning into a “race to the bottom.” Airlines are increasingly seeking unfair advantage through market-distorting business practices, such as social dumping and “forum shopping” to benefit from light regulation and favorable taxation in countries that serve as “flags of convenience.” This, in turn, puts pressure on others to indulge in a similar practice.

III. Gulf Carriers This situation is exacerbated by “booming” airlines from the Gulf countries, notably Emirates, Qatar Airways, and Etihad Airways, expanding their capacity on many of the routes previously serviced by European carriers. As a consequence, European airlines are not only losing market share, but they are also losing entire markets while the Gulf carriers are not creating additional demand. The problem is that many of these airlines are (partly) State-owned, supported by State aid, benefiting from access to cheap (airport) infrastructure, fuel, and capital. European airlines can compete with Middle Eastern airlines; however, it is an entirely different thing to compete with Middle Eastern governments that heavily subsidize their State-owned airlines for strategic geo-economic reasons. The Gulf’s success is based mainly on the combination of the following two anticompetitive strategies: 1. dumping capacity: launching or increasing capacity on unprofitable, unsustainable routes, “inundating” it and destroying competitors, subsequently absorbing capacity to eventually be able to set prices and control the market; 2. acquiring equity in EU airlines: to circumvent the EU rules on market access (“Trojan Horse” strategy) and to expand their network both within Europe and beyond (e.g., notably toward the United / States, including through Fifth Freedom rights). Gulf airlines are not subject to restrictions, such as night-curfews noise restrictions, ticket taxes, and environmental charges that their European competitors have to contend with. This hinders the “level playing field” even further.

competition in aviation  199 The State-sponsored rapid expansion of Persian Gulf carriers has harmed the competitiveness of Europe’s aviation and will continue to do so, if not contained. The European Commission has received a mandate to negotiate comprehensive air transport agreements with Qatar and with the United Arab Emirates. Through these agreements, Gulf airlines could receive an opportunity for growth and expansion in return for a commitment to compete fairly.

IV. Unfair Competition in Europe The Nouvelle Frontière case established that competition laws apply to air transport even without implementing legislation. From then on, the Commission and State competition authorities of Member States enforced competition laws over air carriage. This was followed by regulator packages in 1987, 1990 and 1993, which govern fares and procedures, and regulated joint operation amongst Airlines. In Europe, a new industry trend to distort competition is emerging, namely, complex, in-transparent “innovative” business models and contractual setups. These include: 1. airlines arbitrarily relocating their business (i.e., their operating license and Air Operator Certificate) to “flags of convenience” with the main aim to avoid tax as social security contributions and to benefit from somewhat lax safety oversight; 2. airlines using flexible contractual setups that are often skating at the edge of what is legal and what is necessary to guarantee flight safety. These setups force employees into temporary contract relationships, fake self-employment (e.g., requiring the air crew to set up their own limited liability company that offers its services through agencies to the airline), and/or making use of fake work bases in non-European countries, and “pay to fly” (P2F) schemes (whereby newly graduated pilots have to pay their airline for gaining flying experience on an aircraft); 3. at the same time, certain airlines seek direct or indirect subsidies from airports and local authorities (e.g., a fixed euro amount per passenger transported to their region) and from national governments (e.g., Gulf country governments helping

their carriers to gain international market share). This allows them to unfairly cross-subsidize their operations and ticket prices to the detriment of their nonsubsidized competitors. Europe must safeguard the principles of fair competition before the “honest players” are pushed out of the market altogether and, thus, governments lose control. The European Court of Justice recently ruled that national courts handling private enforcement cases are competent to apply EU competition law to historical behavior in the aviation sector, regardless of public enforcement by the Commission and national competition authorities and regardless of whether or not such authorities had the authority to pursue public enforcement in the relevant period. The origin/destination (O&D) city pair method applied by the CJEU Commission has been criticized because the Commission did not evaluate an alliance’s network effects, which are crucial in a market where many airlines offer their services through alliances. When an alliance launches a new route, it evaluates the overall network and the route’s revenue as well as taking into consideration the connecting passengers. The O&D city pair strategy overlooks this factor. Most airlines build their networks around their hubs and cannot enter a market without a connection. EU courts have deemed it legitimate to define the market using the O&D city pair approach because markets are driven by consumer demand, whereas a network effects approach emphasizes the supply side. 1. EU Aviation and Competition Law Since 2004, sector-specific regulatory system was eliminated and the aviation industry has been subjected to general EU competition laws. All agreements and conduct relating to air transport services that may have an impact on trade between Member States, including those relating to routes between the European Union and third countries, are subject to Articles 101 (prohibiting and making void anti-competitive agreements and concerted practices) and 102 (prohibiting the abuse of a dominant position) of the Treaty on the Functioning of the European Union (TFEU). The Commission has authority to enforce numerous restrictions. Both the articles are ravi nath

200  elgar concise encyclopedia of aviation law subject to concurrent but subsidiary powers held by authorities and courts of Member States (but not the European Union Merger Regulation). To evaluate the competitive impact of a transaction in the air transport sector, the Commission considers whether the transaction raises concerns regarding Origin & Destination (O&D) city pairs where the parties’ services overlap or could possibly overlap (i.e., where in the absence of the agreement, the parties would be actual or potential competitors). The Commission pays attention to overlaps on hub-to-hub route options. The Commission evaluates whether an adequate number of actual competitors would remain active in the relevant market post-transaction in order to prevent the parties from acquiring more market power as a result of the transaction. Commission considers alternative options (such as indirect flights or other means of transportation) for the city-pair, when in conflict. The Commission uses the following criteria as a benchmark in such cases:

to its aim (such as the restructuring program under consideration) may be exempted under Article 107(3)(c). The principle of neutrality of property ownership also applies to this sector, allowing Member States to establish public undertakings, acquire shareholdings, and nationalize existing enterprises operating in all economic sectors, provided, that the Market Economy Investor Principle conditions are met. For the modernization of State aid, the 2014 aviation State aid guidelines with respect to the internal market are: ●

●

●

●

●

● ●

●

●

conducts services on other O&D citypairs of comparable size and features; has a local market presence, particularly through the operation of a hub or a base at either end of the O&D city pair; and possesses suitable aircraft that could be deployed on the relevant O&D city pair.

In cases of conflict, relevant remedies are provided by the Commission to enable entry by competitors into “problem” city pairs. 2. State Aid (European Union) The general EU principles on State aid, particularly the “market economy operator principle,” the “proportionality principle,” the “one-time, last-time principle,” and the “neutrality of property ownership principle,” apply to the aviation industry. Specifically, the market economy operator principle is used to determine whether public investment in an enterprise is undertaken under terms acceptable to a long-term private investor operating under normal market conditions. Member States must also observe the proportionality principle when awarding aid under the exemptions of Article 107(3) Treaty on the Functioning of the European Union (TFEU), meaning that only help that is proportionate ravi nath

●

State aid must contribute to a welldefined common interest objective; State intervention must be necessary (e.g., addressing a market failure et al); State aid must be an appropriate policy instrument; the aid must have an appropriate “incentive effect” on the undertaking concerned; the aid must be proportionate (i.e., limited to a minimum); the aid must not have undue negative effects on competition and trade between Member States; and transparency of the aid.

V. US Antitrust Laws Under US antitrust law, regulators and private parties can restrict corporate behavior that results in monopolies or interferes with competitive markets. However, there are certain limitations to the expansive legislation, namely, common ownership and the ambiguity with “unfair methods of competition” mentioned in the statutes. Common ownership harms the airline industry’s ability to compete, but two aspects of the practice make it difficult to regulate under the Sherman and Clayton Acts, first, the emphasis placed by the courts on demonstrating a “mechanism of harm” is nebulous. Courts are likely to reject the case if regulators file an enforcement action but cannot identify a particular way a common owner is restricting competition. Such overt acts are challenging to spot. Second, Section 7 of the Clayton Act makes an exception for  stock purchased primarily for investment, making it unclear if it applies to common ownership. The Department of Justice may have complications demonstrating  the competitive harm that common

competition in aviation  201 ownership causes. The Clayton Act exempts passive investors, and the courts are dismissive of new economic justifications. Moreover, the language of the statutes grants certain enforcement agencies the power to control “unfair methods of competition”; however, it is unclear how much more expansive that permission is, which is crucial for determining whether the FTC or DOT may legitimately regulate common ownership. Due to the small number of decisions addressing these sections, the precise boundaries of both agencies remain unclear; however, the DOT appears to have a wider reach under section 411 than the FTC does under section 5, and the DOT may regulate actions that violate antitrust laws or principles as well as emerging threats to competition. Ravi Nath

-performance-- ​ - october​-2021-- ​ -report/> accessed August 16, 2022 (IATA 2021 yearend report). Jonathan Edelman, ‘Reviving Antitrust Enforcement In The Airline Industry’ (2021) 120 Michigan Law Review accessed August 17, 2022. Lars Gorton, ‘Air Transport and EC Competition Law’ (1997) 21 Fordham International Law Journal accessed August 16, 2022. “State Aid – European Commission” accessed August 16, 2022. Stichting Cartel Compensation and Equilib Netherlands BV v Koninklijke Luchtvaart Maatschappij NV and Others [2021] References JUDGMENT OF THE COURT (Second “Annual Report 2011 – International Air Chamber). Transport Association” accessed August accessed August 16, 2022. 16, 2022. Commission Notice on the Definition of the Wolla SA and Backus C, “The Economics of Relevant Market for the Purpose of [EU] Flying: How Competitive Are the Friendly Competition Law, [1997] Official Journal Skies?” (Economic Research – Federal C 372/5. Reserve Bank of St. Louis) accessed 27 April 2022. Dean N Gerber and David R Walton, ‘De-Registration and Export Remedies under the Cape Town Convention’ (2014), Cape Town Convention Journal, 3:1, 49– 68, DOI:10.5235/204976114814222485 accessed 27 April 2022. Donald Gray, Jason MacIntyre and Jeffrey Wool, ‘The Interaction between Cape Town Convention Repossession Remedies and Local Procedural Law: A Civil Law Case Study’ (2015), Cape Town Convention Journal, 4:1, 17–52, DOI: 10.1080/2049761X.2015.1108012 accessed 27 April 2022. The Cape Town Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (adopted 16 November 2001, entered into force 1 March 2006) 2307 U.N.T.S. 285. The Chicago Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947) 15 U.N.T.S. 295. Turkish Directorate of Civil Aviation, ‘Aircraft Registration Procedures’ accessed 27 April 2022.

62. Deregulation of International Civil Aviation Air transport has always been recognized as an essential public service. Due to this fact, strong regulatory intervention, strict controls, and financial support were instituted by the States to ensure that their flag carriers would offer high-quality service. But for the air transport market, this meant insurmountable barriers to access. This protectionist regime arose from the 1944 Chicago Convention on International Civil Aviation, based on the principle of exclusive sovereignty of each State over the airspace above their territory. Consequently, Article 6 prohibits scheduled operations except with the permission or authorization of the State in whose territory an aircraft wants to fly. This regime hindered the opening of the air transport market for competition. The United States was the first supporter and proponent of aviation sector deregulation. The 1978 Airline Deregulation Act, amending the Federal Aviation Act of 1958, was the US federal law that deregulated the airline industry in the United States. It phased out federal control over airline prices and routes with the purpose of introducing a competitive market in this industry and allowing the free market to decide the quality, variety, and price of air services in the United States. It considerably diminished State intervention as regards the determination of fares and rates for air services and access to air routes. However, this Act did not diminish the regulatory powers of the Federal Aviation Administration (FAA) over all aspects of aviation safety. The United States continued to regulate crucial aspects of air travel, such as passenger safety, pilot certification, and the air traffic control system, under the auspices of the FAA. The International Air Transportation Competition Act of 1979 also liberalized air connections between the United States and third countries. The former bilateral air transport agreements, based on protectionist rules, had therefore been renegotiated in the form of Open Skies Agreements.

As an immediate effect of the American deregulation, there was an increase in the number of new carriers, passengers, and miles flown in the face of cost and price reduction and maintenance of acceptable safety standards. Deregulation allowed lowcost airlines (that do not offer any traditional services, but lower fares at the expense of fewer comforts) to enter the interstate travel market. One of the long-term effects of this was serious traffic congestion problems on the most remunerative routes resulting from the business logic followed by the carriers. Consequently, peripheral and nonremunerative routes connecting disadvantaged areas or islands were completely abandoned by them. In addition, price competition between airlines ensued, with a consequent lowering in safety standards. Initially, these legislative changes did not affect Europe, due to an explicit legal barrier in the context of the EEC Treaty. In fact, Article 84(2) provided that sea and air transport, so long as the European Council had not decided otherwise, were excluded from the rules of Title IV of Part Two of the Treaty, relating to the common transport policy. The Council decided “whether, to what extent and by what procedure appropriate” to set down provisions for these two modes of transport. This barrier was then removed by the European Court of Justice in the judgment of 30 April 1986 (Nouvelles Frontières case, No. 209-13/84) that extended the interpretation given in the previous judgment of 4 April 1974 (French Seamen’s case, No. 167–73) with regard to the maritime transport sector to the air transport sector. In the Nouvelles Frontières case, the Court clarified that air transport remained subject to the general competition rules of the Treaty, notwithstanding Article 84(2) in the same way as maritime transport and other modes of transport. Therefore, this judgment enabled the European legislator to regulate this sector. Another evolutionary step occurred with the Single European Act (SEA) of 1986, the first major revision of the 1957 Treaty of Rome. Through this Act, the EEC was committed to establishing a European internal market by 1992, that is “a market without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty” (Article 8A).

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220  elgar concise encyclopedia of aviation law Therefore, in the late 1980s, in the wake of US deregulation, it was decided to abandon the dirigiste aviation policy in favor of a competition policy also in Europe. But, gradual liberalization was opted for, divided in three separate phases, in order to avoid repeating the mistakes made in the United States. In this way, the European Community found the correct balance between competition and control mechanisms. In 1987 the first legislative package was issued, containing Regulations (EEC) No. 3975/87 and No. 3976/87 and Directive No. 87/601/EEC, in order to make the air transport system more flexible and competitive, by introducing more liberal rules in the market. In this transitory stage, the requirement to share capacity on a 50/50 basis became less strict. In addition, regulatory supervision on tariffs was reduced, even if still subject to the traditional double approval process. The Second Legislative Package, containing Regulation (EEC) Nos. 2342/90, 2343/90, 2344/90, was intended to introduce more competition. An example of this is the automatic tariffs approval mechanism or the double disapproval process. Under “double disapproval,” a fare set by an airline for a route between Member States is permitted unless both States disapprove it. Finally, the Third Package, consisting of the Council Regulations (EEC) Nos. 2407/92, 2408/92, 2409/92, 2410/92, and 2411/92 of 23 July 1992 (entered into force on 1 January 1993), completed the liberalization process and established an internal market in the field of air transport. Measures included in the first three Regulations of 1992 represented the peak of the gradual process of dismantling the bilateral restrictions. According to Regulation No. 2407/92, a European air carrier that met the conditions laid down in its provisions, such as professional, financial, organizational, and technical abilities, was entitled to receive an operating license granted by a Member State under EU rules, in order to freely operate air services within the EU market, without discrimination based on nationality. In addition, to obtain the operating license, a carrier must be in possession of an Air Operator Certificate (AOC), a document that affirms that the operator in question has the professional ability and organization to secure francesca pellegrino

the safe operation of aircraft for the aviation activities specified for it. An air carrier with a valid operating license, granted in accordance with Regulation No. 2407/92, has free access to the air routes; it has to operate in accordance with the terms and conditions laid down in Regulation No. 2408/92. In fact, the exercise of traffic rights can be subject to rules relating to safety, protection of the environment, and allocation of slots. An air carrier licensed by a Member State may be prevented from operating on the basis of slot-allocation rules that limit the number of hourly takeoffs and landings. In fact, slots represent a scarce resource to be allocated to competing users. Other restrictions could derive from the imposition of public service obligations (PSOs) on certain routes by the Member States. In fact, with respect to scheduled air services, a Member State could impose these obligations on an airport serving “a peripheral or development region in its territory or on a thin route to any regional airport in its territory, any such route being considered vital for the economic development of the region in which the airport is located” (Article 4 of Regulation No. 2408/92). In other words, to avoid the negative effects experienced in the United States (disregard for unprofitable routes), Regulation No. 2408/92 introduced this provision for disadvantaged routes, thus ensuring standards of continuity, regularity, capacity, and pricing, “which standards air carriers would not assume if they were solely considering their commercial interest” (Article 4). In these circumstances, a Member State could publish an invitation to tender, addressed to European air carriers. If no carrier had commenced or was about to commence scheduled air services on a route subject to public service obligations, the Member State could limit access to that route to only one air carrier for a period of up to three years. Regarding the freedom of the air, although full cabotage rights were granted to air carriers by Regulation No. 2408/1992, the principle of full freedom of these traffic rights was applied starting from 1997. Finally, Regulation No. 2409/92 on fares and rates for air services gave airlines the freedom to set their own prices. Charter fares and cargo rates were based on “free agreement” between the parties to the

deregulation of international civil aviation  221 contract of carriage: the carrier and its clients. The conditions were created for the market entry of a large number of low-cost carriers. A Member State could decide, at any moment, to withdraw a basic fare, which, considering relevant factors, including the competitive market situation, was excessively high, or to stop, in a non-discriminatory way, a fare that was too low, considering the ordinary seasonal pricing movements. These corrective measures highlighted the very important role played by the State in case of market distortion. The three Regulations of the Third Package, respectively, on carrier licensing, access to the EU market, and air fares and rates were amended and replaced by Regulation (EC) No. 1008/2008 of 24 September 2008 on common rules for the operation of air services in the Community (the “Air Services Regulation”). The “Air Services Regulation” has been very effective in achieving its objectives: market efficiency, safety, and consumer protection.

In accordance with points 15 and 16 of the Preamble, customers should have access to all air fares and rates, regardless of their residence within the Community territory or their nationality and independently from the place of establishment of their travel agents. Customers should be able to effectively compare the prices for air services offered by different carriers. Therefore, the final price to be paid by the customer for air services should be indicated at any time, inclusive of all taxes, fees, and charges. The European Commission initiated an evaluation process in 2016, whose expected outcome was to be the publication of a new legislative proposal by the end of 2020. But it has not yet been issued. In the meantime, Regulation No. 1008/2008 was temporarily amended by Regulation (EU) 2020/696 in order to deal with problems resulting from the COVID-19 pandemic. Francesca Pellegrino

francesca pellegrino

63. Drones See entry: 149. Unmanned Aircraft System Traffic Management

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64. Emission Trading Scheme in Aviation I. General Remarks

During the Montreal Climate Change Conference of 2005, where the parties to the Kyoto Protocol gathered, Decision 11/CMP.1 was adopted. In turn, the possibility was introduced for legal entities to participate in emission trading schemes under Article 5 of the decision in question. As per Article 5, the State that permits a legal entity to engage in emission trading “under Article 17 shall remain responsible for the fulfilment of its obligations under the Kyoto Protocol.” At the time of writing, carbon markets on which legal entities engage in trading can be found all over the world: in Canada, New Zealand, the United States, China, Japan, South Korea, Switzerland, as well as in the European Union (EU). In these States and in the EU, companies can purchase emission allowances, which would allow them to pollute. This is also why emission allowances may be viewed as licenses to pollute.

Emission Trading Scheme (ETS), also known as the Emission Trading System, is a key mar­ket-based mechanism that aims to limit and reduce greenhouse gas emissions (GHGs) by creating a trading system based on emission allowances. It is a tool established under the Kyoto Protocol, which quantifies the goals set out in the United Nations Framework on Climate Change Convention (UNFCCC) (Dempsey and Jakhu [2019]). The UNFCCC aims to combat human-induced climate change and its adverse effects. The possibility to participate in an emission trading scheme was legally established under Article 17 of the Kyoto Protocol, under which parties with commitments under the Protocol, also known II. Emission Trading System as Annex B countries, were allowed to parof the European Union ticipate in such schemes to comply with their (EU ETS) commitments under Article 3 of the Kyoto Protocol. Article 17 of the Kyoto Protocol As indicated by the European Commission, concerns only emission trading between the EU ETS system is the largest ETS in States and does not concern trading between operation and is known to be the “cornerstone of the EU’s policy to combat climate legal entities such as companies. ETS is one of the three market-based change and its key tool for reducing GHGs mechanisms available under the Kyoto cost-effectively.” EU ETS applies to compaProtocol, next to Joint Implementation (JI) nies, not to States. In the EU, the cap is lowand the Clean Development Mechanism ered each year, as the main objective is to (CDM) (Kingston, Heyvaert and Čavoški reduce emissions rather than to redistribute [2017]). MBMs in aviation are an important them. This means that each year, there are means to tackle the impact aviation has on the less carbon allowances available. This reducenvironment. As explained by the European tion in supply creates scarcity and thus carbon Union Aviation Safety Agency (EASA), credits become more costly as they are traded they “address the climate impact of aviation, between entities. The economics behind the beyond what operational and technological reduction in allowances and the ability to sell measures or sustainable aviation fuels can them creates an incentive for companies to achieve” (European Aviation Environmental reduce their emissions (Walker et al. [2019]), Report 2019). MBMs have the potential to as selling their allowances becomes more play an important role in climate change miti- economically viable than the cost of reducing gation, notably in polluting industries such as emissions through other means (Delbeke and Vis [2019]). the aviation industry. As reported by the EU in 2021, since the Under an ETS, each State is given a specific emission allowance. States that have introduction of EU ETS, emissions have been surplus allowances can sell those carbon cut by 42.8% in the sectors covered by the allowances to countries that are emitting EU ETS Directive (2003/87/EC), henceforth beyond their targets. Allowances are capped referred to as the EU ETS Directive. Following for each country; this means that countries the adoption of the EU ETS Directive in 2003, can acquire additional allowances only by it has been integrated into the EU system as engaging in the trading scheme via a carbon of 2005. The implementation process of EU market. This system is also known as the ETS has been under four phases (Walker et al. [2019]); Phase 1 being from 2007 to 2008, “cap and trade.” 223

224  elgar concise encyclopedia of aviation law Phase 2 from 2008 to 2012, Phase 3 from 2013 to 2020, and Phase 4 from 2021. Under the EU ETS, EU Allowances (EUA) are distributed and administered by Member States and reported to the European Commission. Under the EU ETS Directive, allowances are defined as “an allowance to emit one ton of carbon dioxide equivalent during a specified period, which shall be valid only for the purposes of meeting the requirements of this Directive and shall be transferable in accordance with the provisions of this Directive.” Each year, Member States establish “National Allocation Plans” (NAPs), which determine how the emissions of a Member States would be allocated. EUAs are issued within the NAPs. The system is one of a decentralized nature, where Member States decide on their emissions, and the European Commission undertakes an assessment on the NAPs’ compliance with the EU ETS Directive. In certain cases, prior to the approval of a NAP, the European Commission could also require a Member State to reduce the determined national cap. For example, during Phase 2 (2008–2012), the European Commission reduced the proposed caps that were determined by NAPs. The decentralized system brought legal challenges with it, notably when Member States started challenging the reduction of the caps determined by the NAPs by the European Commission. These legal challenges served as the rationale for creating an EU-wide cap for Phase 3 of the EU ETS (Woerdman, Roggenkamp and Holwerda [2021]). Emission allowances are limited, and they can either be distributed for free, traded, or auctioned. The cap under EU ETS is reduced every year, which requires polluters to also reduce their emissions each year. Moreover, as the allowances are reduced each year, this also reduces the distribution of free allowances, which creates a reliance on auctioning. Consequently, the prices of the emissions also increase yearly, due to their scarcity. For example, there was a dramatic increase in EUA prices between 2018 and 2021, rising from €10 to €75 per ton of CO2, respectively. There have also been initiatives to link ETS systems together, in order to create a bigger, more global scheme. For example, the EU has linked its EU ETS with the trading system of Switzerland via an agreement that entered into force in January 2020 tuvana aras

(Woerdman, Roggenkamp and Holwerda [2021]). Switzerland is the first non-EU country to link its ETS system with EU ETS.

III. Aviation as Subjected to the EU ETS In 2009, the EU ETS Directive was amended by Directive 2008/101/EC, in order to include aviation activities within the scope of EU ETS. The objective of the expansion of the scope of the EU ETS, as per Recital 14 of Directive 2008/101/EC, was to “reduce the climate change impact attributable to aviation by including emissions from aviation activities” in the scheme. As reported by the European Parliament, the EU was the “first economy to address the issue of aviation emissions,” and that it has contributed to the reduction of more than 17 million tons of carbon footprint per year by the industry. The initial plan was to include all flights from and to European Economic Area (EEA) airports within the scope of EU ETS. This would have meant that an entire flight from New York to Amsterdam would be included within the scope of EU ETS. However, the inclusion of such flights within the scope of EU ETS was suspended and remains as a derogation under the current framework. Countries such as the United States, China, Russia, Canada, and India were vocal opponents to the EU ETS (de Mestral, FItzgerald and Ahmad [2018]). Some American airlines even challenged the legality of scope of the EU ETS Directive in court, arguing that the EU ETS infringed upon the principle of sovereignty and territoriality of the non-EU States by imposing the EU ETS on non-EU carriers (de Mestral, FItzgerald and Ahmad [2018]). In Air Transport Association of America (Case C-366/10) [2011], the Court of Justice of the European Union (CJEU), in response to a reference for a preliminary ruling, ruled that the airlines from non-EU States operating to EU airports are to be subject to the EU ETS, and that the EU had not exceeded any of the above‑mentioned principles. That being said, non-EU countries still perceived the EU ETS as a hostile mechanism. It followed that the EU “stopped the clock” for international aviation within the scope of EU ETS (de Mestral, Fitzgerald and Ahmad [2018]), given the opportunity within the International Civil Aviation Organization (ICAO) framework to create a Global

emission trading scheme in aviation  225 Market-Based Mechanism (GMBM) to regulate carbon emissions from international aviation. Depending on how the ICAO-based solution could work for international aviation, the EU would decide whether international aviation could be included in the scope of EU ETS. In reality, the rationale behind the consensus to establish a GMBM and to remove international aviation from the scope of EU ETS was due to the international objections lodged against the EU when it required nonEEA airline operators to be subjected to EU ETS. For intra-EEA flights, EU ETS is applicable, whereas for international aviation the GMBM “Carbon Offsetting and Reduction Scheme for International Aviation” (CORSIA) of ICAO is applicable. CORSIA was agreed upon in 2016 and is established in Annex 16 Vol. IV to the Chicago Convention on International Civil Aviation adopted in 2018. Regulation (EU) 421/2014 suspended the application of ETS to flights beyond EEA, and the derogation is extended until the end of 2023 via Regulation (EU) 2017/2392. Although EU ETS and CORSIA are both MBMs that aim to reduce the carbon footprint of the industry, they are not identical measures. The principal difference between ETS and CORSIA is that the former is a capand-trade system with a cap on total emissions, which aims to reduce emissions, as explained above, whereas the latter is an offsetting and reduction scheme. The aim of CORSIA is to stabilize emissions from aviation as it requires airline operators to offset the emissions that go beyond the CORSIA benchmark, which is set to total aviation emissions in the year 2019. Emissions above this threshold must be offset via the purchase of carbon credits. As of 2012, in accordance with the EU ETS Directive, all aviation emissions from and to EEA airports were to be included within the scheme. Aircraft operators are responsible for monitoring their compliance with the EU ETS Directive, as they “have the most direct control over the type of aircraft in operation and the way in which they are flown” (EU ETS Monitoring and Reporting 2022). As stipulated by the EU ETS Directive, airline operators were also responsible for preparing a monitoring plan, where they would monitor and report their aviation emissions

in accordance with the plan. By 30 April of each year, airline operators need to surrender their allowances equivalent to its emissions of the previous year. The NAPs set out emission quotas for each aircraft operator. Annex I of the EU ETS Directive provides for a detailed scope as to which aviation activities enter within EU ETS and explicitly provide for the aviation activities that enter within the derogations. For example, EU ETS applies only to civil aviation, and it does not concern diplomatic, humanitarian, or search and rescue flights. Flights operated in order to provide public service obligations also fall outside of the scope of the scheme. Moreover, airline operators operating flights fewer than 234 flights per period for three consecutive four-month period, or airline operators operating flights with total annual emission less than 10,000 tons per year are also exempted from the scope of EU ETS. At the time of writing, the EU ETS is in its Phase 4. As regards the aviation cap, 82% of the allowances given to aviation are distributed gratuitously, 3% kept within the special reserve for new entrants, and 15% of the aviation allowances are auctioned. As of January 2021, the cap for aviation allowances is to be lowered by the linear factor of 2.2%. The aviation allowances issued in 2021 was capped at approximately 24.5 million, where 20.7 million of these allowances were issued for free and 3.8 million of the allowances were to be auctioned.

IV. The Future Applicability of the EU ETS to Aviation Under the auspices of the European Green Deal, the European Commission has proposed to amend the current EU ETS Directive, with the aim of achieving the 2030 goal of 55% reduction of GHGs compared to 1990, and for ultimately achieving the goal of climate neutrality by 2050 in the European Union, as established by the Paris Agreement and by the European Climate Law. The potential impact of the EU ETS revision within the Fit For 55% package is to phase out free allowances as of 2024 until the end of 2026, through reducing free allowances by 25%, 50%, and 75%, respectively. As of 2027, no free allowances will be made available, and the only means to acquire carbon credits will be via auctioning. Moreover, currently the emission cap is reduced each year by 2.2%. The European tuvana aras

226  elgar concise encyclopedia of aviation law Commission proposes to further reduce the cap by 4.2% each year in order to achieve the goals set out by the European Climate Law, notably the legal obligation to reduce 55% of GHG emissions by 2030 compared to 1990 levels. Tuvana Aras

References Armand de Mestral, Peter P. Fitzgerald and Tanveer Ahmad (eds), Sustainable Development, International Aviation, and Treaty Implementation (Cambridge University Press 2018). Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change [2011] ECLI:EU:C:2011:864. David Freestone and Charlotte Streck (eds), Legal Aspects of Carbon Trading: Kyoto, Copenhagen and Beyond (Oxford University Press 2009). Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC [2003] OJ L 275/32. Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2009] OJ L 8/3. Edwin Woerdman, Martha Roggenkamp and Marijn Holwerda (eds), Essential EU Climate Law (Edward Elgar Publishing 2022). European Commission, ‘Emissions Cap and Allowances’ accessed 29 April 2022. European Commission, ‘EU Emissions Trading System (EU ETS)’ accessed 29 April 2022. European Union Aviation Safety Agency (EASA), European Environmental Agency (EEA) and EUROCONTROL, ‘European Aviation Environmental Report’ (2019). Jos Delbeke and Peter Vis (eds), Towards a Climate-Neutral Europe: Curbing the Trend (Routledge 2019). Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162 (Kyoto Protocol). Paul S. Dempsey and Ram Jakhu (eds), Routledge Handbook of Public Aviation Law (Routledge 2019). Regulation (EU) No 421/2014 of the European Parliament and of the Council of 16 April 2014 amending Directive 2003/87/ EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in view of the implementation by 2020 of an international agreement applying a single global market-based measure to international aviation emissions [2014] OJ L 129/1. Suzanne Kingston, Veerle Heyvaert and Aleksandra Čavoški, European Environmental Law (Cambridge University Press 2017). Thomas Walker and others (eds), Sustainable Aviation: Greening the Flight Path (Palgrave Macmillan 2019). United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC).

65. Environmental Protection in Aviation

completing a negotiation process that had originated in 2011 with COP517 in Durban. On that occasion, a new negotiating platform and an ad hoc group on the Durban Platform were set up with the task of developing, by 2015, a Protocol applicable to all countries, Over the last century, the average global tem- which would come into force in 2020. perature has risen by between 0.6° and 1°C, The aim of the Protocol was to help stabithe average sea level has risen and the aver- lize greenhouse gas concentrations at a level age temperature of the first layer of water has that would prevent dangerous anthropogenic increased. Almost all the world’s glaciers interference with the climate system. The text, are retreating significantly, desertification is adopted in Paris by all 195 countries particiincreasing, and extreme weather phenomena pating in COP21, represented a historic agreeare more common.1 ment, both for the reference to the pursuit of Climate change is one of the most hotly efforts to limit the temperature increase to 1.5 debated topics by institutions, the media, and degrees and for indications of the need for industry, and environmental demands are new development models based on the prinexerting ever more pressure on public opin- ciple of equity and the use of de-carbonized ion. Intensive work is underway on global cli- energy sources and technologies. mate and local air quality issues. Without doubt, aviation is one of the main All the evidence and research led in sectors involved in the described environmen1988 to the founding of the Intergovernmental tal phenomenon. Many decisions, agreements, Panel on Climate Change (IPCC),2 a United and protocols, elaborated at international and Nations scientific body where 2,000 sci- national levels, are in place to mitigate and to entists from over 160 countries have been reduce the effect of aviation activities on the tasked with studying climate change, its environment. causes, and the contribution of human activiEvidence of the progressive deterioration ties as well as finding solutions to mitigate of the climate balance has made environthe phenomenon. mental issues, such as reduction of CO2 and Based on the United Nations greenhouse gas emissions, and reduction of Framework Convention on Climate Change noise and pollutants, key elements in the defi3 (UNFCCC), signed in Rio de Janeiro in nition of international air transport policies. 1992 during the historic Earth Summit, Today’s global aviation emissions represent and on the scenarios drawn up by the IPCC, more than 2% of the global anthropogenic an international agreement was adopted carbon dioxide emissions and 15% of EU in 1997 in Kyoto to regulate atmospheric transport emissions. emissions of the main gases responsible for The world’s civil aviation authorities and the greenhouse effect.4 In particular, the international organizations in the sector are Kyoto Protocol on climate change was an committed to jointly addressing the challenge international agreement that set precise tar- of combining the needs of air transport with gets for cuts in greenhouse gas emissions environmental concerns. and global warming by the industrialized Environmental issues are one of the new countries that signed it. frontiers on which civil aviation is focusing its The Kyoto Protocol was the first interna- activity in order to harmonize socioeconomic tional agreement with a binding commitment interests with the protection of the Earth, by the signatory States to actively pursue spe- realizing a feasible pathway to improve the cific goals of limiting global warming. overall quality of life. The UNFCCC and the Kyoto Protocol The policy measures undertaken to mitihave therefore defined measures to control the gate the climate impacts of aviation can be environmental impacts of industrial activities. divided into three categories: (1) Rules and However, they represent just the beginning of Regulations, (2) Market-Based Measures a long and still ongoing process, which aims (MBMs), (3) Voluntary Measures. at dealing with the environmental protection The first category concerns the rules and in all fields of human activity. regulations issued by a government body On 12 December 2015, the 21st Conference or international agency that monitor comof the Parties to the Convention on Climate pliance. This category includes ICAO6 and Change adopted the Paris Agreement, UE regulations, framework governing for 227

228  elgar concise encyclopedia of aviation law example engine emissions of air pollutants (CO2 in particular), and air quality damaging substances, establishing the optimal noise level around airports and regulations determining maximum pollutant concentration values. The second category concerns the socalled Market-Based Measures (MBMs), which, through the creation of economic and financial incentives or disincentives, strive to keep emissions within certain limits. The main market mechanisms include Emission Trading (ET), Environmental Taxes and Charges, and the use of subsidies. The third category includes all voluntary measures taken, both at territorial level and on a large scale, by individuals who decide to limit their impact on the environment. In this prospective, regarding the first mentioned category, when we talk about Environmental Protection in aviation, we have to take into consideration all the decisions, deliberations, recommendations, and expert working groups, activity organized and developed at both ICAO level and EU level by authorities and institutions, such as the Commission or ECAC.7 These institutions, working in parallel on the same task of reducing environmental impact of aviation, have elaborated not only specific regulatory frameworks but also expert working groups aiming at developing the most up-to-date technically feasible solutions to face the effects of aviation on the environment. The Committee on Aviation Environmental Protection (CAEP), a technical body, was established within the International Civil Aviation Organization (ICAO) and is responsible for the management of ICAO Annex 16 (Environmental Protection). CAEP, advisory committee to the ICAO’s Council, acts on the direct advice of the Council and assists the Council in formulating new policies and adopting new Standards and Recommended Practices (SARPs) related to aircraft noise and gaseous emissions and, more generally, to the environmental impact of international aviation.8 More specifically, the groups of CAEP experts coming from all ICAO Member States are divided into main areas, including Noise, Operations, Emissions, and CORSIA with specific task groups (Sustainable Alternative Fuels – SAF9 and Long-Term Aspirational goal). andrea marotta

ECAC has realized something similar with the same goal of elaborating practical measures, technically feasible, to mitigate the effect of aviation on the environment, in particular, the reduction of CO2 emissions. Therefore, there are task groups working on alternative fuels, noise, and scenarios for the future aviation. The interconnection between those institutions and the work made by the internal working groups are a fundamental pathway to reach solutions, which can lead all the States to reduce aviation emissions and to establish a sustainable air transport globally. At EU level,10 the initiatives of the Commission regarding the so-called Green Deal11 and the “Fit for 55”12 package are all fundamental policies definition and regulatory tools aiming at implementing long-term objectives for 2050 toward neutralizing the negative effects of aviation activities. The European Member States and the Commission have understood that the previous legal framework related to environmental protection was useful but failed to respond to the challenges of a green transition in air transport and to the need to meet the net zero emissions aspirational goal by 2050. Regarding the second category of policy measures aiming at reducing the environmental impact of aviation activities, the EU ETS and the ICAO CORSIA represent the most important Market-Based Measures (MBMs) established at European and international levels. The EU Emissions Trading System is the key tool of the EU’s policy to fight climate change. It is the world’s first major carbon market, and it is the biggest one. It covers around 40% of the EU’s greenhouse gas emissions in the main sectors: power and heat, industry, and aviation. The EU ETS is regulated by the ETS Directive (Directive 2003/87/EC), but the aviation sector has been included in the ETS since 1 January 2012.13 CORSIA,14 Carbon Offsetting and Reduction scheme for International Aviation, is a global market–based scheme established by ICAO to monitor and manage the CO2 emissions of international aviation. CORSIA is implemented in three phases: the pilot and first on a voluntary basis and the second mandatory for all ICAO Member States, with some exemptions. All airplane operators with international flights producing annual CO2  emissions greater than 10,000 tons from airplanes with

environmental protection in aviation  229 a maximum takeoff mass greater than 5,700 kg, regardless of whether their administering State is participating or not in the offsetting phases, have been required to monitor, verify, and report their CO2  emissions from 2019 onward. The average CO2  emissions reported during 2019 and 2020 will represent the baseline for carbon-neutral growth from 2020. From 1 January 2021, the aviation sector has become subject to offsetting its international CO2 emissions above this level by buying climate credits generated by programs or projects that can reduce greenhouse gas emissions elsewhere in the world (e.g., by planting trees that can absorb CO2 emissions or by replacing fossil fuels with renewable energy). Each ton of CO2 emitted above the baseline should be offset buying one climate credit.15 Regarding the third category of policy measures aiming at facing the environmental negative effect of aviation, it includes all voluntary measures taken, both at territorial level and on a larger scale, by aviation players who decide to limit their impact on the environment. Examples of this are (1) the participation of airport managing companies to the Airport Carbon Accreditation (ACA) program, promoted by Airport Council International (ACI),16 and (2) the participation of airport managing companies and territorial entities in the European program Decarbonated Airport Regions (D-AIR).17 Environmental protection is a key issue of our time. Humanity must succeed in reaching the important goals that have been indicated for all the fields of industrial activities, including aviation, to make it possible to reduce climate change and to save life on Earth. “We are at a crossroads. The decisions we make now can secure a liveable future. We have the tools and know-how required to limit warming.”18 Andrea Marotta

Notes 1.

https://www​.ipcc​.ch​/srocc/ “Special Report on the Ocean and Cryosphere in a Changing Climate.” 2. https://www​.ipcc​.ch/. 3. The  United Nations Framework Convention on Climate Change (UNFCCC) established an international environmental treaty to combat “dangerous human interference with the climate system,” in part by stabilizing  greenhouse gas  concentrations in the atmosphere. It was signed by 154 States at the United Nation Conference on Environment

and Development, informally known as the Earth Summit. https://unfccc​.int/. 4. Kyoto Protocol was signed in December 1997 at the conclusion of the third plenary session of the Conference of the Parties (COP3) to the United Nations Framework Convention on Climate Change. 5. COP stands for Conference of the Parties, and the summit was attended by the countries that signed the United Nations Framework Convention on Climate Change (UNFCCC). 6. International Civil Aviation organization, a permanent international body based in Montreal, created by the Chicago Convention to promote and ensure the highest degree of uniformity in rules and procedures relating to international civil aviation. ICAO develops the necessary technical standards for all fields of civil aviation, which are collected in specific volumes called “Annexes” to the Convention. These Annexes are still the primary technical source for all States that have ratified the Convention on International Civil Aviation. Environmental Protection is one of ICAO’s strategic objectives of Annex XVI. 7. Established in 1955 as an intergovernmental organization, ECAC’s main objective is to promote the development of a safe, efficient and sustainable air transport system. In this perspective, it is committed to the harmonization of policies and practices in the field of civil aviation among the Member States and to the promotion of the connection of the different political strategies between the Member States and the other world areas. The Conference promotes agreements for the creation of an integrated geographical area including countries that are not currently part of ECAC itself. Within the ECAC structure has been established the EAEG, European Aviation Environmental Group aiming at developing measures and strategies to reduce the impact of aviation. 8. ICAO Annex 16 to the Chicago Convention: Volume I (Noise), Volume II (Emissions), Volume III (CO2), Volume IV (CORSIA). 9. Sustainable aviation fuel (SAF) is the main term used by the aviation industry to describe a nonconventional (fossil derived) aviation fuel. It’s produced from sustainable feedstocks and is very similar in its chemistry to traditional fossil jet fuel. Using SAF results in a reduction in carbon emissions compared to the traditional jet fuel it replaces over the lifecycle of the fuel. https://www​ .iata​.org ​/contentassets​/d13​875e​9ed7​84f7​5bac​90f0​ 00760e998​/saf​-what​-is​-saf​.pdf. 10. It refers to all the work done by Commission (DG ENV, DG Clima, DG Move), EASA environment Division, Eurocontrol Environment Division). 11. The European Green Deal is a package of policy initiatives, which aims to set the EU on the path to a green transition, with the ultimate goal of reaching climate neutrality by 2050. https://ec​.europa​ .eu​/ info​/strategy​/ priorities​-2019​-2024​/european​ -green​- deal​_ en#:~​:text​= on​%20Delivering​%20the​ %20European​%20Green​%20Deal.   The European Commission’s Green Deal plans to make Europe the world’s first climate-neutral continent by 2050 and will result in all of us, citizens and businesses, benefitting from sustainable green transition. As well as cutting emissions it will require innovation on a grand scale, innovation which promises to transform

andrea marotta

230  elgar concise encyclopedia of aviation law Europe into a pioneer of sustainable technologies which can be exported worldwide. (Eamon Brennan, Director General EUROCONTROL, Environment: Rethinking Europaen Aviation in Skyway Magazine, Spring/Summer 2020) 12. The  “Fit for 55” package  aims to translate the ambitions of the Green Deal into law. The package is a set of proposals to revise climate-, energy- and transport-related legislation and put in place new legislative initiatives to  align EU laws with the EU’s climate goals. https://www​.consilium​.europa​ .eu​/en​/policies​/green​-deal. 13. EUROCONTROL works with the European Commission, States and aircraft operators to support the implementation of the aviation element of the EU ETS, in particular to harmonize data and reduce compliance costs. https://www​.easa​.europa​ .eu​/eaer​/topics​/market​-based​-measures​/corsia. 14. During The39th ICAO General Assembly in 2016, the proposal of a GMBM scheme named CORSIA was approved through Resolution A39-3. 15. EASA – European Aviation Environmental Report. https://www​.easa ​ .europa ​ .eu ​ /eaer ​ / topics ​ / market​ -based​-measures​/corsia. 16. Airport Carbon Accreditation  is the only institutionally endorsed, carbon certification standard for airports. More info: https://www​.air​port​carb​onac​ cred​itation​.org/. 17. D-AIR is about converting European airports into sustainable transport hubs by reducing CO2 emissions through improving airport operator activities and surface access. The long-term objective is creating transnational guidance on how to achieve decarbonized airport regions. More info: https:// keep​ . eu ​ / projects ​ / 5361 ​ / Decarbonated ​ - Airport​ -Regions​-EN/. 18. IPCC Chair Hoesung Lee presenting “Climate Change 2022: Mitigation of Climate Change. Contribution of Working Group III to the Sixth Assessment Report of the IPCC” on 4 April 2022.

andrea marotta

References Brennan Eamon, Director General EURO­ CONTROL, “Environment: Rethinking European Aviation” in Skyway Magazine, Spring/Summer 2020. EASA – “European Aviation Environmental Report – Carbon Offsetting Reduction Scheme for International Aviation (CORSIA)” https://www​.easa​.europa​.eu​/ eaer​/topics​/market​-based​-measures​/corsia. European Commission – Priorities 2019– 2024 – “A European Green Deal. Striving to be the FIRST CLIMATE NEUTRAL CONTINENT” https://ec​.europa​.eu​/info​ /strategy​ / priorities​ -2019 ​ -2024 ​ /european​ -green​-deal​_en#. European Council – “European Green Deal” https://www​ . consilium​ . europa​ . eu​ / en​ / policies​/green​-deal. IATA – “What is SAF?” https://www​.iata​.org​ /contentassets​/d13​875e​9ed7​84f7​5bac​90f0​ 00760e998​/saf​-what​-is​-saf​.pdf. IPCC – Intergovernmental Panel on Climate Change – “Climate Change 2022: Mitigation of Climate Change.” IPCC Contribution of Working Group III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change on 4th April 2022. https:// www​ . ipcc​ . ch​ / report​ /sixth​ - assessment​ -report​-working​-group​-3. IPCC – “Special Report on the Ocean and Cryosphere in a Changing Climate” https:// www​.ipcc​.ch​/srocc/.

66. EUROCONTROL1

II. Main Tasks

I. Legal Framework EUROCONTROL is an intergovernmental civil-military organization established by the International Convention relating to Co-operation for the Safety of Air Navigation signed at Brussels on 13 December 1960,  which entered into force on 1 March 1963. It currently has 41 Member States, supporting European aviation in a number of tasks defined below. The main purpose of the Member States at the time of the establishment of the organization was cooperation in matters of air navigation and, in particular, with respect to the common organization of the air traffic services in their upper air space. While this task remained (albeit implemented only for a few States), the contents of the original Convention were extended in 1981 to air traffic management–related, research, and coordination activities through a Protocol Amending the 1960 EUROCONTROL Convention (“the Amended Convention”). The Amended Convention, which entered into force on 1 January 1986, is still in force to date. It was, however, revised by the signature on 27 June 1997 of a Protocol that consolidated the EUROCONTROL Convention (“the Revised Convention”) as variously amended, expending the scope of the organization’s activities and enabling the membership of “regional economic integration organisations,” such as the EU. The Revised Convention is still in the process of ratification but the Member States unanimously decided on 9 December 1997 that some of its provisions would be implemented early, in advance of ratification.  These provisions mostly concerned the tasks of the organization and its governance, and are still applied today. Key elements of the Revised Convention such as the possible membership of regional economic integration organizations or the move from what is currently mostly unanimity-based decision‑making to majority one are not subject to early implementation. Nevertheless, the role of the organization has evolved on the basis of these provisions as well as taking into account the developments of the institutional and organisational framework governing air traffic management at the European level.

The road from the initial vision of the founding member States of EUROCONTROL (Belgium, France, Germany, Luxembourg, the Netherlands, and the United Kingdom), henceforth also referred to as the Organization, to its current framework and roles has been a challenging one, as the Organization’s mandate has been reviewed and refined by the States throughout the years, as well as by the emergence of the regulatory role of the European Union (EU) in the Air Traffic Management (ATM) domain. Since the development of the EU regulatory framework that would become known as the Single European Sky (SES) in 2004, EUROCONTROL’s role has focused on providing its technical and operational expertise to the implementation of the SES at the pan-European level, building on the knowhow and experience it had consolidated from its inception. The Organization supports its Member States and aviation stakeholders, including Air Navigation Service Providers, civil and military airspace users, and airports through its following main tasks: ●

●

●

●

231

as the Network Manager, EUROCONTROL operates the Air Traffic Management network for its Member States and beyond. It provides centralized flow management allowing safe operation of flights; it provides a platform for civil-military cooperation in aviation at the technical and operational levels, cooperation with European and international organizations to balance the needs of civil aviation with those of national security and defense; it ensures the funding of Air Navigation Services through the route charges system, a system based on the recovery of the costs of providing these services, which bills to, and collects from, airspace users route charges for the air navigation services they receive in the airspace of EUROCONTROL Member States; it provides cross-border Air Navigation Services on behalf of four Member States (upper airspace  over Belgium, the Netherlands, Luxembourg, and northwestern Germany), running one of Europe’s busiest and most complex airspace areas (Maastricht Upper Area Control Centre);

232  elgar concise encyclopedia of aviation law ●

as a founding member of the SESAR (Single European Sky ATM Research) Joint Undertaking, EUROCONTROL is involved in research and development aiming at supporting the continuous evolution of European aviation through the adoption of technological and operational advancements and solutions that maximize efficiency and sustainability.

The above functions and services to support the European aviation ecosystem generate networkwide data. The Organization consolidates and shares this data, key to its tasks in the domains of aviation data intelligence (addressed below) and sustainability. The Organization, inter alia, contributes to environmental research to reduce the impact of noise, CO2 and other emissions, and provides support facilities to assist national authorities and aircraft operators with their reporting obligations under the EU’s Emissions Trading System (ETS) and ICAO’s Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA).

III. Recent and Future Challenges The pandemic crisis, which brought aviation practically to a halt in March 2020 (with traffic down at its lowest point at −92.8% compared to the previous year, and an average −55% less traffic in 2020 compared to 2019), has highlighted the importance of aviation data intelligence and carried to the forefront the work of EUROCONTROL in the field of aviation data and analysis. The Organization has ensured common awareness of the crisis evolution and provided States and other decision makers with the required timely data and analysis. The pandemic crisis has also demonstrated, as it had already been the case although on a different scale, for the volcanic ash crisis of April 2010, the essential need for coordination and cooperation at a pan-European level with respect to Air Traffic Management. Air Navigation Services – a public service under the responsibility of States under the 1944 Convention on International Civil Aviation, known as the Chicago Convention (1944) – had to be maintained and continuously provided to ensure, inter alia, repatriation, medical, and cargo flights. The ann frédérique pothier

Network Manager, operating the Air Traffic Management network, played a key role in particular in the early days of the crisis. In addition, the Member States of EUROCONTROL, through the Organization’s decision-making bodies, jointly took measures to support the Air Navigation Service Providers and airspace users impacted by the fall in traffic and revenues resulting from border closure and travel restrictions. The funding mechanism for Air Navigation Services that has been in place since 1971, based on the recovery of the costs of provision of Air Navigation Services through route charges billed and collected from airspace users, was put under exceptional pressure and challenged when traffic was suddenly and significantly reduced, as a result of the pandemic crisis, or has been completely discontinued over an airspace, as a result of the invasion of Ukraine. Linked to the current charging mechanism are also questions on its impact on operational effectiveness and role in supporting sustainable developments. as charges can affect the choices made by airspace users when establishing their routes. International policies and European regulations, including those established by EUROCONTROL Member States, can evolve to meet the objectives of making aviation more resilient and more sustainable.

IV. Conclusion While issues of national sovereignty limited the implementation of the initial vision of the founding Member States of EUROCONTROL, the evolution of the Organization’s competences and tasks both through the amended Convention in 1981 and the revised one in 1997 has allowed it to grow into an Organization that makes European aviation safer, more efficient, more effective, and with now at its core the need to lessen aviation environmental impact, through, inter alia, new technology and operating procedures. EUROCONTROL has, in particular, seen its role in the last few years consolidated as the Organization at the service of European aviation, being a neutral and independent player that can provide support in times of crisis, building on the Network Manager and its aviation intelligence. It has become a hub for its Member

eurocontrol  233 Co-Operation for the Safety of Air Navigation of 13 December 1960 (Brussels, 12 February 1981). The following 41 States are the current members of EUROCONTROL: Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, Netherlands, North Macedonia, Norway, Poland, Portugal, Note Romania, Serbia, Slovakia, Slovenia, Spain, 1. This contribution represents the views of the Sweden, Switzerland, Turkey, Ukraine, and author and does not necessarily represent the views the United Kingdom. EUROCONTROL of EUROCONTROL. has also two Comprehensive Agreement States, Israel and Morocco. References Protocol consolidating the EUROCONTROL Agreement relating to the provision and International Convention relating to operation of air traffic services and facilities Co-Operation for the Safety of Air by EUROCONTROL at the Maastricht Navigation of 13 December 1960, as Area Control Centre (“Maastricht variously amended (Brussels, 27 June Agreement”) (25 November 1986), as 1997), not yet in force. amended. Protocol on the accession of the European EUROCONTROL Aviation Outlook Community to the Eurocontrol International 2050, Main Report, April 2022, www​ Convention relating to Cooperation for the .eurocontrol​.int ​/sites​/default ​/files​/2022​- 04​ Safety of Air Navigation of 13 December /eurocontrol​-aviation​-outlook​-2050​-report​ 1960, as variously amended and as .pdf (accessed on 1 July 2022). consolidated by the Protocol of 27 June EUROCONTROL Think Paper, The Funding 1997, not yet in force. of Air Navigation Services, https://www​ Regulation (EU) 2018/1139 of the European .eurocontrol​ .int ​ / publication ​ /eurocontrol​ Parliament and of the Council of 4 July -think​ - paper​ -14​ - future​ - air​ - navigation​ 2018 on common rules in the field of civil -services (accessed 1 July 2022). aviation and establishing a European Union EUROCONTROL Think Paper, Charting Aviation Safety Agency, and amending the European Aviation Recovery, https:// Regulations (EC) No 2111/2005, (EC) No w w w ​ .e u r o c o n t r ol ​ . i n t ​ / p u bl ic a t io n ​ / 1008/2008, (EU) No 996/2010, (EU) No eurocontrol​-think​-paper​-15​-2021​-covid​-19​ 376/2014 and Directives 2014/30/EU and -impact​-and​-2022​-outlook https://www​ 2014/53/EU of the European Parliament .eurocontrol​ .int ​ / publication ​ /eurocontrol​ and of the Council, and repealing -think​-paper​-15​-2021​-covid​-19​-impact​-and​ Regulations (EC) No 552/2004 and (EC) -2022​-outlook21COVID​-19 impact and No 216/2008 of the European Parliament 2022 outlook (accessed 1 July 2022). and of the Council and Council Regulation John McInally, EUROCONTROL History (EEC) No 3922/91. Book,  ht t ps://www​ . eu rocont rol​ . int ​ / The SES Regulatory framework: Regulation publication​ / eurocontrol​ - history​ - book (EC) No 549/2004 of the European (accessed 1 July 2022). Parliament and of the Council of 10 March Multilateral Agreement relating to route 2004 laying down the framework for the charges (Brussels, 12 February 1981). creation of the single European sky (the States joining the EUROCONTROL framework Regulation); Regulation (EC) Organisation have to ratify this Multilateral No 550/2004 of the European Parliament Agreement. and of the Council of 10  March 2004 on Protocol amending the EUROCONTROL the provision of air navigation services International Convention relating to in the single European sky (the service States, Air Navigation Service Providers, and all other key stakeholders, including continued close cooperation and coordination with European partners, such as the European Commission and EASA, as well as international organizations, such as ICAO. This will be of particular importance as air traffic increases and, with it, the challenges in safety, capacity, and sustainability for the aviation industry. Ann Frédérique Pothier

ann frédérique pothier

234  elgar concise encyclopedia of aviation law provision Regulation); Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky (the airspace Regulation);  as amended in 2009 by Regulation (EC) No 1070/2009 of

ann frédérique pothier

the European Parliament and of the Council of 21 October 2009 amending Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004 and (EC) No 552/2004 in order to improve the performance and sustainability of the European aviation system.

67. European Air Law Association I. Liberalization of Air Transport in Europe EALA has carefully and consistently paid attention to the liberalization of air transport in Europe, especially so in the late 1980s and 1990s. It has done so by carrying out its activities, which are mentioned in section IV. Within the legal framework of European Union (EU) law, air transport retains a unique position; it is not firmly enshrined in the EEC, then EU, Treaty. Air transport is specifically mentioned only once in Article 100(2) TFEU to specify that measures on air transport policy are to be taken as and when the Council so decides. Yet, the Court held that “general rules” apply to air transport. General rules encompass the competition rules; they can be applied to this sector even in the absence of implementing regulations and enforced, under certain conditions, by the Commission and by the competition authorities in Member States. The operation of air services is also subject to the general principles of non-discrimination and the objectives pertaining to environmental and consumer protection. These principles and goals are implemented in the air transport regulations and policies, as to which see below. Also, the freedoms of the EU Treaties apply to the operation of air services. The most relevant are the free movement of services and the right of establishment. The existence of mostly bilateral Air Services Agreements (ASAs), concluded by States, including EU States, on the footing of the Chicago Convention (Convention on International Civil Aviation) (1944) accounted, among other factors, for the delay with respect to the establishment of an air transport policy at the EU level, which was in those days dominated by EU States. The supranational institutions of the EU, namely, the European Commission, the European Parliament, and the CJEU, have considerably influenced a more market-oriented approach toward the operation of services by relying on the Treaty rules proclaiming an “open market with free competition.” The deregulation policy of the United States also helped to liberalize European air transport.

In 1992, the third liberalization package of the – then – EEC was completed. It came into force on 1 January 1993. That package swept away the barriers for new entries by, for instance, harmonizing air carrier licensing conditions. At the same time, the distinction between scheduled and non-scheduled services had been removed so as to enable all types of air carriers holding EU operating licenses to provide services anywhere within the EU internal market, according to demand. Demand has substantially increased since the 1990s, resulting in an impressive growth of air traffic in the intra-EU air transport market. At that time, European air carriers did not only enjoy greater, if not unlimited market opportunities, but were also subjected to the general rules of the – then – EEC, the competition rules. Many of the traditional restrictions on market entry and behavior, that is, designation, capacity, pricing, and frequencies prevailing under the bilateral ASAs between the Member States were abolished. Following the principles of the European treaties, room was given for a more marketoriented approach toward the operation of EU services on a level playing field as maintained under applicable Treaty competition rules. They were supplemented by implementing rules for the air transport sector, including exemptions from the scope of those competition rules. Since 2008, the operation of intra-European air services has been regulated under a single regulation, that is, EU Regulation 1008/2008. That Regulation will be revised in the years to come. Among others, environmental considerations, including the implications of climate change, congestion, competition in relation to non-EU carriers, and labor conditions must be more closely monitored in the context of the European air transport market, including its regulation.

II. EALA’s Constitution EALA is registered in England and Wales as a company limited by guarantee (No. 6374877). The objectives of the company, and ways and means for implementing these, are contained in the Memorandum of Association and the constitution in the Articles of Association. The membership of EALA comprises leading academics, national and EU officials, representatives of international civil aviation organizations, airlines, aerospace

235

236  elgar concise encyclopedia of aviation law manufacturers, aviation insurers, aircraft lessors, and other providers of financial services and practitioners, both from Member States of the EU and from countries outside the EU. There are both individual and corporate members. EALA is governed by a Committee composed of one or, in the case of the larger jurisdictions, two representatives of European States. They support the work carried out by the four officers of EALA. The officers manage the company and prepare the annual conferences, in close cooperation with EALA’s representative in the State where the annual conference is held. In addition, EALA’s Committee has created two bodies that carry out specific tasks. One is the Academic Committee, which is a jury deciding on the winner and runner up of the essay prize, as to which see also section IV. The other one is tasked with the promotion of EALA’s publicity on various platforms and channels. EALA’s goals and activities, as well as the composition of its governing bodies, can be found on its website, that is, www​.eala​ .aero . Its current president is Professor Pablo Mendes de Leon.

III. EALA’s Mission Among other things, EALA purports to: ●

●

●

serve as the leading and essential association addressing the development of air law in Europe; ensure dissemination of information about, and the study of, air law in Europe; and serve as a forum for the exchange of views and provide an opportunity for those interested in European air law to meet each other.

These goals are implemented by the performance of activities, as to which see the next section.

IV. EALA’s Activities EALA’s inaugural conference was held in London in November 1989 and annual conferences have been held since then in European capital cities. Every other year (since 1997) the Munich Liability Seminar deals with liability issues and in 2006 the pablo mendes de leon

biennial Copenhagen Aircraft Finance Legal Seminar was established. During the 20th Anniversary Conference in Prague (2008), the newly created annual EALA Prize was awarded for the first time. This Prize is awarded annually, and the winning essay is published on EALA’s website. The EALA Prize aims to reward young authors of essays on subjects directly related to aviation law in the broadest sense of the word. The expression “aviation law” covers issues of national and international aviation law as well as European Union law related to aviation. In 2009, the EALA Lifetime Achievement Award was created. This award is presented in recognition of outstanding contributions to European and international air law. The inaugural award was presented in the Hague during the 21st Annual Conference. The proceedings of the Association’s conferences and seminars have been published until 2004 in 20 volumes.

V. Concluding Remarks EALA’s annual conferences and specialized seminars are widely recognized as events marking the most crucial developments in European air transport law. Its participants come from European States and from outside Europe. They include students who are following air law courses at universities in Europe. EALA is committed to pay attention to the most relevant developments in this area. That is why the subjects which are discussed at its conferences and seminars are carefully selected by the EALA Committee. They range from market access and market behavior and the application of competition and State air rules, as well as merger regulations, to subjects that have become relevant in the 21st century. These include the conduct of external aviation relations by the EU, the control of noise and emissions, safety and security as a consequence of accidents that take place in this sector, closure of airspace, the effects of the COVID-19 pandemic, connectivity, the increased impact of labor conditions on undertakings working in air transport, sanctions and remedies in the context of political developments, and the relationship with infrastructure, such as airports and Air Navigation Services Providers. During the specialized seminars, attention is paid to, among others, airline liability in the

european air law association  237 broadest sense, passenger protection, liability of manufacturers, the insurance question, and related matters. The aircraft financing seminars look at leasing and other arrangements pertaining to the use of aircraft in international operations. These seminars combine an examination of the European and global regimes governing such transactions with sharing practical experiences by the parties involved with these transactions, including insurers. All in all, EALA is, and will never be, short of subjects for discussion. Air transport

remains a highly dynamic field of economic activity, which is regulated by various jurisdictional levels. Together, these characteristics give EALA its prominence and attracts an interest in the discussions that it engenders. Pablo Mendes de Leon

References Pablo Mendes de Leon, Introduction to Air Law, Chapter 3 (2022). www​.eala​.sero.

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68. European Civil Aviation Conference The European Civil Aviation Conference (ECAC) was founded in 1955 as an intergovernmental organization to promote safe and efficient air transport in Europe. From a historical perspective, the opening meeting of the Conference on Coordination of Air Transport in Europe (CATE) was convened in the Assembly Chamber of the Council of Europe in Strasbourg on 21 April 1954. Stemming from a resolution adopted the previous year by the Committee of Ministers of the Council of Europe, the CATE concluded on 8 May 1954 with a decision to set up the “European Civil Aviation Conference.” ECAC held its inaugural session in Strasbourg from 29 November to 16 December 1955. A Constitutional Commission considered the formal establishment and status of the “Conference” (as it came to be known), its Rules of Procedure, and its relationship with ICAO and with those European governmental and non-governmental agencies whose tasks might be closely associated with those of ECAC. Nineteen States became members at this inaugural session, and today ECAC brings together the widest grouping of Member States of any European organization dealing with civil aviation, being currently composed of 44 Member States: Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Monaco, Montenegro, Netherlands, North Macedonia, Norway, Poland, Portugal, Republic of Moldova, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Türkiye, Ukraine, and United Kingdom. In the early years, a prime objective of ECAC from the outset was to develop a multilateral agreement for scheduled services. Despite intensive efforts, fundamental differences on how to deal with traffic rights and capacity sharing led to the setting in 1959 of a less ambitious goal. A Committee on Coordination and Liberalisation (COCOLI) was established,

its main task being to study the measures of a governmental nature that could be taken to facilitate and encourage coordination and cooperation between European airlines and to promote liberalization. COCOLI’s remit was subsequently widened to deal with any matters of economic concern and the Committee played a highly influential role in developing many facets of ECAC policy, before it was replaced in a restructuring undertaken in 1967. However, a significant achievement was the conclusion in 1956 of the Multilateral Agreement on Commercial Rights of NonScheduled Air Services in Europe. This provided liberal access for certain categories of non-scheduled operations. These categories were subsequently expanded through further ECAC recommendations. From its establishment, ECAC took an active role in promoting the harmonization of policies in the technical and facilitation fields. Technical subjects included rules governing the interchange of aircraft between registers, criteria for training air navigation and ground personnel, validation of pilots’ licenses, and flight testing of navigational and landing aids. Particularly noteworthy was the conclusion in 1960 of a Multilateral Agreement relating to Certificates of Airworthiness for Imported Aircraft. In the facilitation field, ECAC adopted many recommendations covering subjects as diverse as the elimination of embarkation and disembarkation cards and the streamlining of baggage-handling arrangements. An interesting recommendation dating back to 1957 encouraged the establishment of dutyfree shops at airports. Also, 10 July 1967 was a significant day in ECAC’s history, with the opening for signature in Paris of the International Agreement on the Procedure for the Establishment of Tariffs for Scheduled Air Services. The Agreement set down procedures that were to prove the norm for the best part of the following 20 years. The major preoccupation of ECAC during the period 1965–1974 was the rapid development of the non-scheduled service market, particularly over the North Atlantic. A decision in 1966 by the US Civil Aeronautics Board to authorize inclusive tour traffic by six supplemental, non-scheduled US carriers sparked major activity within ECAC. Intensive negotiations involving ECAC, the United States, and Canada continued over

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european civil aviation conference  239 several years and culminated in the “Ottawa Declaration” of 1972, which established a common set of principles for the operation of North Atlantic charters. In June 1978, ECAC Member States supplemented the Declaration with a Memorandum of Understanding, which established an agreed framework within which bilateral negotiations with the United States were pursued. Topics dealt with in the technical field ranged from consideration of sonic boom to widening of the scope of the 1960 Multilateral Agreement relating to Certificates of Airworthiness for Imported Aircraft to cover the import of spare parts, engines, etc. All weather operations, mutual recognition of private pilot licenses, and the performance characteristics of airborne navigation and communications equipment were among other issues considered. The “Open Skies” deregulation policy pursued by the United States in the late 1970s, the conclusion of radically new types of bilateral agreements between the United States and some ECAC Member States, the inauguration of the Laker Skytrain, and the onset of “price wars” on the North Atlantic marked the beginning of a new era in ECAC’s history. The efforts that ECAC had devoted to securing a coordinated multilateral approach to North Atlantic charter policy proved futile in the rapidly changing environment, with the differences between scheduled and charter transport becoming less and less. Tripartite discussions continued among ECAC, the United States, and Canada, but concentrated largely on exchanging views and monitoring statistically the results of charter liberalization and scheduled service deregulation. June 1978 saw the publication of the US Civil Aeronautics Board’s Show Cause Order on the subject of IATA tariff agreements. With North Atlantic services specially targeted, ECAC mounted a strong campaign against the move, which was seen as forming part of an attempt by the United States to impose its policy of deregulation on other States. After much effort, the ECAC campaign bore fruit with the conclusion in May 1982 of the first ECAC-US Memorandum of Understanding on North Atlantic pricing. Combining flexibility, in the form of automatic approval zones for fares, with stability in the shape of assurances of antitrust immunity for inter-carrier tariff coordination, the experimental MOU turned into a formidable instrument. What

was initially agreed as an experiment for six months lasted for almost ten years. In the environmental field, measures to mitigate nuisances continued to be a major preoccupation. By 1979, a prohibition had been introduced on the operation of aircraft not complying with the noise standards of Annex 16 to the Chicago Convention. A major study was undertaken on the effects of limiting Chapter 2 operations, foreshadowing policies to be adopted later on. Other notable work in the technical field included the updating of procedures for authorization of all-weather operations and the adoption of several recommendations for emergency and safety airborne equipment for which a special working group (REMSA) had been created in 1979. Work in the facilitation and security areas also intensified. Of particular significance in the facilitation field was a decision taken in 1985 to publish a Manual of ECAC recommendations. That year also saw the adoption of a major ECAC policy statement in the field of aviation security, which was later added to the facilitation manual to form Doc 30, ECAC’s comprehensive policy document on facilitation and security matters. Another landmark in ECAC’s history was the holding, for the first time, of a meeting at ministerial level. Serious air traffic congestion called for urgent remedial action and led in 1988 to the bringing together of Ministers of Transport in an ECAC framework. This first meeting, held in Frankfurt, was followed by five further ministerial meetings, Paris (1990), London (1992), Copenhagen (1994 and 1997), and Brussels (2000). Through these meetings, a political impetus was given to the establishment of a European Central Flow Management Unit, the European Air Traffic Control Harmonisation and Integration Programme (EATCHIP), and Airport/Air Traffic Systems Interface (APATSI) strategies were adopted, followed by the ATM 2000+ strategy leading to the construction of the “Single European Sky.” In the economic area, the decade was marked by the completion in 1987 of two international agreements, dealing, respectively, with capacity sharing and tariffs. These agreements constituted a significant step in the European liberalization process, one that both ECAC and the European Community built on in the years that followed. Another piece of pioneering work was the development of a alessio quaranta

240  elgar concise encyclopedia of aviation law Code of Conduct for Computer Reservation Systems. The loss of Pan Am flight 103 over Lockerbie, Scotland, in December 1988, the loss of UTA flight 772 over Niger in September 1989, and the heightened international tension during and following the first Gulf War led to a stepping up of ECAC’s activity in the aviation security field. This included the organization in 1990 of a major Symposium which brought together in Paris some 600 participants from 50 countries worldwide, and some 20 manufacturers of security equipment. Work in the facilitation field took up the challenge of the Single Market and the Schengen Agreement. ECAC, in cooperation with the European Conference of Ministers of Transport (ECMT), also organized in 1994 a very successful conference dealing with the question of access to air travel for people with reduced mobility. In January 2001, ECAC launched a new Aviation Security Audit Programme to assess the implementation of its security recommendations and assist ECAC Member States by providing advice and technical expertise. In five years, more than 50 airports were audited, and a considerable number of auditors were trained and certified by ECAC. In November 2004, Directors General decided to further develop the ECAC Audit Programme by placing an equal emphasis on capacity-building activities, with the main objective of supporting Member States’ efforts to rectify deficiencies identified during audits. This decision marked the start for what is known today as the ECAC CapacityBuilding Programme. The events of 11 September 2001 obviously had an enormous impact on ECAC’s activities in the security field. The organization immediately initiated work on issues such as control of access to the cockpit, in-flight security personnel, and effective air-ground communication. This work was carried out in close coordination with the European Union, which in 2002 for the first time issued regulations in the security area, using ECAC Doc 30, Part II as its reference document. In the technical area, a Threat Image Projection library was established and shared with all Member States. In addition, preparatory work started with regard to the development of a European testing and certification system for security equipment. The ECAC Common alessio quaranta

Evaluation Process of security equipment was launched in 2009. In 2009, ECAC formally endorsed ACI EUROPE’s Airport Carbon Accreditation scheme, which provides a common methodology for airports to use in addressing their emissions, and in November that year organized a seminar on the noise and emissions performances of future aircraft. Directors General took the opportunity in 2010 to review progress in the area of aviation and alternative fuels, and in 2011 accepted advice from ECAC’s Abatement of Nuisances Caused by Air Transport (ANCAT) expert group that the model NOx classification scheme provided in ECAC Recommendation 27/4 be amended to address, additionally, unregulated engines and engines for which no emissions data were available. The amended Recommendation was endorsed on 3 September 2011 by ECAC’s 30-second Plenary Session. In the context of Europe’s engagement to reduce CO2 emissions and in line with the Paris Agreement at COP21, ECAC Directors General of Civil Aviation endorsed a common declaration, the “Bratislava Declaration” in September 2016, in which they confirmed their intent “to implement the global marketbased measure scheme for international aviation from the start.” Thanks to the trust and solidarity among its Member States, on which ground their relations are based, ECAC strives to take its decisions by consensus. ECAC’s priorities in discharging its role are: (a) to act as a panEuropean aviation think-tank; (b) to support its Member States in developing harmonized pan-European positions and solutions; and (c) to serve as a center of expertise for its Member States. In reaching its strategic objectives, ECAC seeks to harmonize civil aviation policies and practices among its Member States and, at the same time, to promote understanding on policy matters between its Member States and other regions. It supports its Member States through capacity-building programs and more than 30 thematic working groups. ECAC fulfils its role in concert with other key organizations of the European civil aviation community, such as the European Union (including the European Commission and the European Union Aviation Safety Agency – EASA), the European Organisation for the

european civil aviation conference  241 Safety of Air Navigation (EUROCONTROL), as well as industry associations. As Europe’s largest and longest-standing civil aviation organization, ECAC has a unique status in the region and a key role to play in supporting its Member States as they address issues affecting the European civil aviation sector. Issues of common interest include safety and accident investigations, aviation security, facilitation, environment, economic matters, training, legal matters, unmanned aircraft systems (UAS), diversity and inclusion, external relations, as well as artificial intelligence (AI) and public communication related to civil aviation. In addition, ECAC’s legal activities support the work in other fields of civil aviation, such as safety, environment, and security. Established in 1996, the Legal Task Force examines legal issues and develops proposals on various legal issues related to the role and various activities of ECAC. It advises Directors General of Civil Aviation on matters relating to the interpretation and amendment of the ECAC Constitution, the legal status of ECAC and its relationship with other international organizations, makes

recommendations on matters relating to public international air law, and provides a forum for discussion for ECAC Member States in the legal work of ICAO, as well as any other legal issues relevant to the work of ECAC or of interest to ECAC Member States. Along with globalization and new business models, topics such as responsibility and liability will remain high on the legal agenda of the aviation community. The traditional way of looking at responsibilities and liabilities is no longer suitable in a world where multinational businesses are being set up at an ever-increasing pace and where companies outsource their activities more and more. Drone operations also require totally new ways of regulating air traffic. And among all global challenges, cyber threats and artificial intelligence might also require a new legal approach. ECAC’s work has evolved over its history, but its fundamental mission remains the promotion of the development of a safe, efficient, and sustainable European air transport system. Alessio Quaranta

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69. European Union Agency for the Space Programme I. History and Main Competences The origins of the EU Agency for the Space Programme (EUSPA) can be traced back to 2002, when the Council Regulation (EC) No. 876/2002 set up the Galileo Joint Undertaking (GJU). The main task assigned to this legal entity was the management of the Galileo development phase.1 Later in 2004, the European GNSS Supervisory Authority (GSA) was established by the Council Regulation No 1321/2004 to supervise the development of the European Geostationary Navigation Overlay Service (EGNOS) and Galileo.2 GSA officially took over GJU and assumed its tasks on 1 January 2007. In 2010, another change took place since GSA acquired the status of an EU Agency and therefore became the European GNSS Agency as settled by the Regulation (EU) No. 912/2010. It was entrusted with the Galileo and EGNOS service provision and uptake and its location was set in Prague.3 The last stage in the evolution of the Agency took place in May 2021 when Regulation (EU) 2021/696 was adopted, establishing the Union Space Programme and EUSPA, which replaced GSA.4 As specified under Article 29 of the EU Space Programme Regulation, the Agency has tasks such as to ensure the security accreditation of all of the Programme’s components through the Security Accreditation Board (SAB); to carry out risk and threat analysis (in particular setting of technical specifications and operational procedures) for Galileo and EGNOS; to provide the Commission with its technical expertise; to undertake communication, market development, and promotion activities as regards the services offered by Galileo, EGNOS, and Copernicus. In addition, the Agency is entrusted with managing the exploitation of EGNOS and Galileo, coordinating user-related aspects of Governmental Satellite Communications Programme (GOVSATCOM) for the purpose of crisis management missions and operations, with actions in support of an innovative

and competitive Union space sector.5 The European Commission may also decide to entrust the Agency with other tasks in the future. To accomplish the specific tasks specified under Article 29, the Agency ensures the safe and secure management of all space components; provides support to research and innovation through various projects, such as CASSINI in order to stimulate innovation and entrepreneurship, and Fundamental Elements; and to increase the EU industry competitiveness. EUSPA additionally engages market stakeholders to develop innovative and effective GNSS applications, as well as leverages synergies between the different components of the Union Space Programme. The Agency further provides its expertise through in-depth market analysis and ensures that Europe’s space-based services are secure, safe, and accessible. EUSPA engages with multiple partners on the international, European, and national levels. The European Commission, and specifically the Directorate General for Defence Industry and Space (DEFIS), is in charge of the Union Space Programme, and therefore entrusts EUSPA with all its tasks related to Galileo, Copernicus, EGNOS, GOVSATCOM, and the Space Situational Awareness (SSA). The European Space Agency (ESA) is also a key partner of EUSPA with what concerns the implementation of the Union Space Programme. Furthermore, the Union Space Programme counts several partnerships beyond EU borders that let it ensure the compatibility and interoperability of the European GNSS with other constellations around the world. The European Commission, together with the Member States and the European Parliament (as a nonvoting Member), is part of the Administrative Board of EUSPA. The EU Member States are also in charge of overseeing the Security Accreditation of the Programme through the Security Accreditation Board, as does the High Representative of the Union for Foreign Affairs and Security Policy.6 Apart from the headquarters in Prague, EUSPA’s workforce is present in various sites across Europe: the Galileo Security Monitoring Centre in France and Spain, the Galileo Reference Centre in the Netherlands, the European GNSS Service Centre in Spain, and the EGNOS Centre in France. The Interinstitutional Relations team and the Joint

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european union agency for the space programme  243 Office are located in Belgium. Additionally, EUSPA manages industrial teams in the Galileo Control Centres based in Italy and Germany, as well as in other facilities.7

II. Engagement in the EU Space Programme 1. Evolution of Regulatory Framework The Governance of the Union Space Programme has been the subject of three EU Regulations, respectively, in 2008, 2013, and 2021. The latter one (Regulation 2021/696 of the European Parliament and the Council)8 entrusts the Commission with the role of overall Union Space Programme manager and the European Union Agency for the Space Programme (EUSPA) with the role of Galileo and EGNOS exploitation manager, together with a number of tasks in the field of downstream and upstream market development of all components of the Union Space Programme, including Copernicus. The European Space Agency is entrusted by the Commission and EUSPA with a number of tasks in the field of evolution of the Galileo and EGNOS components and support to operation and service provision for the existing infrastructures. The governance established by Regulation 2021/696 is focused on the continuity of services and continuous development of the Union Space Programme infrastructures and services, which have become an operational and service provision reality for all citizens. For what specifically concerns the EGNOS regulatory framework, the European Aviation specific “Single European Sky” Regulations have been used since the first certification of the EGNOS SoL Service (2010). The major changes in the Single European Sky Regulations9 that impact the EGNOS service provision concern the shift of responsibility from the EGNOS Service Provider for the safety of the End-to-End service (i.e., from the Signal-in-Space generation to the safety of the end user) toward a focus on the safety of the provision of the EGNOS Signalin-Space, which is ensured by compliance to the ICAO requirements. This is illustrated by the following two changes: ●

the relaxation to the requirement to implement a Safety Management System (SMS): the 373 requirements

●

are divided for Air Navigation Services (ANS), such as EGNOS and Air Traffic Services (ATS), the requirement for an SMS is limited to Part-ATS, for ANS the requirement is for a “management system.” For example, an Air Navigation Service Provider no longer requires safety policy and objectives, safety risk management, safety assurance, and safety promotion functions; the EGNOS Service Provider also is no longer required to provide a full Safety Case (which was the means of compliance to the previous regulation), the 373 requires a “safety support assessment” (whereas ATS are still required to perform a “Safety Assessment”). The “Safety Support” refers to the assurance that the safety requirements coming from the users are met.

This means that aerodrome users are expected to provide their safety requirements to the EGNOS Service Provider (in addition to the SARPS requirements, if any) 2. Activities for EGNOS Adoption Global Satellite Navigation Systems (GNSSs) are essential to modernize the Air Traffic Management, which requires robust positioning and navigation to improve the use of the capacity of the airspace.10 The European Geostationary Navigation Overlay Service (EGNOS) is Europe’s regional satellite-based augmentation system that is used to improve the performance of GNSS making it suitable for aviation use.11 Since its entry into service in 2011,12 the EGNOS Safety of Life Service makes aviation safer and more efficient in Europe. EGNOS makes regional and remote airports more accessible and therefore avoids longer flights to arrive to the final destination, which translates into less fuel consumption. Also, GNSS and, in particular, EGNOS allow for more flexible and optimized flight procedures, which lead to reduction in fuel burn and CO2 emissions. It also reduces the noise impact when approaches are planned to avoid populated areas.13 The PBN Regulation (EC 2018/1048 of 18 July 2018) mandates implementation of EGNOS approach procedures to all EU instrument runway ends by 2024 and rationalization of conventional yannick felici et al.

244  elgar concise encyclopedia of aviation law navaids by 2030.14 EGNOS attained more than 800 approaches by the end of 2021. Regarding avionics, most of the new models reaching the market are EGNOS capable and many retrofit solutions are available for aircraft in service. EUSPA has a consolidated cooperation with players in all value chains (receiver manufacturers, airspace users, Air Navigation Service Providers, and authorities). A dedicated funding mechanism (EGNOS Adoption grants) has been set up to accelerate operational implementation of EGNOS-based operations.15 EUSPA, together with the EGNOS Service Provider, provides operators with tailored analysis, tools, and resources, such as traffic assessments, cost-benefit analyses, updates on the European LPV solutions offered by the industry, and continuous support and guidance material in the EGNOS User Support website.16 EUSPA is supporting the development of new use cases for EGNOS. For example, the Agency is working together with the EU Aviation Safety Agency and worldwide civil aviation authorities on Safety Assessment Guidelines for the implementation of EGNOS-based instrument approaches to noninstrument runways located at aerodromes serving general aviation.17 The Agency also actively supports implementation of EGNOSbased operations for helicopters, with a focus on emergency and medical operations. Most of these operations are flown visually, which is a challenge in case of emergency in bad weather or low visibility conditions. EGNOS is a game changer, guiding the pilot to lower minima without a need to install any expensive ground infrastructure in the helipad.18 The close cooperation with EUROCONTROL has enabled the development of Safety Guidance material for GNSS-based operations for helicopters, which has made this application a reality in Europe.19 Regarding research and development, EUSPA is supporting the industry to prepare for the new version of EGNOS, including dual frequency multi-constellation capabilities, and preparation of the relevant standards, at EU and international levels20 In addition, EUSPA is actively supporting the growing market for unmanned aviation. The EGNOS corrections in the vertical axis are especially relevant for drone operations. Due to the expected high number of drones in the coming years, their relatively small size, and most yannick felici et al.

operations at very low levels, having robust navigation will be also key to develop the U-Space concept, which will enable integration of manned and unmanned aviation.21 3. Evolution of the Programmatic Elements

3.1 Galileo

The involvement of the EU in the Galileo project was defined in its initial stage through a Council Resolution in 1999.22 The first phase of Galileo ran from 2003 to 2005, when the first experimental satellite, GIOVE-A, was launched. In 2006, the Private–Public Partnership funding the program collapsed; therefore the European Commission decided to nationalize Galileo as an EU program. Galileo kept developing as in 2008 GIOVE-B was launched, followed by the first two In-Orbit Validation (IOV) satellites in 2011, as well as the first two Full Operational Capability (FOC) satellites in 2014.23 In 2016 Galileo entered into the Initial Operational Capability (IOC) phase. Since then, anyone with a Galileo- enabled device is able to use its signals for positioning, navigation, and timing. This was a milestone that corresponded to the availability of the first operational Open Service (OS), Public Regulated Service (PRS), and Search and Rescue (SAR) services. In 2017, EUSPA became the service operator for Galileo. Later in 2019, the phase of Enhanced Services started, which implemented the OS Positioning for improved navigation performances and made available the SAR Return Link Service (RLS). The FOC phase is now under implementation, and it will mark the availability of the different services in their final configuration. For OS, this would become reality at the end of this year, while for OSNMA (Authenticated-Open Service) at the beginning of 2023, as well as for PRS SIS transmission and IOC. Already before the end of 2022 the High Accuracy Service (HAS) will cover the entire European continent, whereas in 2024 it should reach worldwide coverage FOC. The Commercial Authentication Service (CAS) will achieve FOC in 2025.24 For 2037 it is foreseen that the Galileo Second Generation (G2G) will be implemented. 3.2 EGNOS

The launch of the EGNOS Programme was approved by the European Council in 1994. It

european union agency for the space programme  245 was confirmed to be a component of Europe’s satellite navigation policy in 2003. In 2005, the version 1 (v1) of the system started its initial operations phase, followed by the v2.1 which implemented the EGNOS Data Server, while the v2.2 allowed for an extended coverage through the Regional Extension Module concept. In 2009, EGNOS assets were transferred from ESA to the European Commission, and the OS entered into operation; since 2014 the EGNOS exploitation is fully delegated to EUSPA. In 2018 a contract was signed to ensure the implementation of EGNOS v3.0 and v3.1.25 3.3 Copernicus

Copernicus was born from the idea of creating a European environment monitoring program, agreed upon in 1998. The program was initially introduced as “Global Monitoring for Environmental Security”; then, in 2004, a space-based observation component was proposed; therefore, the European Commission and ESA signed an agreement setting the stage for the Sentinel satellites family. In 2011, the Initial Operation phase began, and the program was renamed Copernicus the subsequent year. The deployment of the space component began in 2014 with the launch of Sentinel 1-A radar satellite and continues until today,26 carrying on a process aiming to place a complete constellation of almost 20 satellites in orbit before 2030.27 3.4 GOVSATCOM

The implementation of the GOVSATCOM component of the EU Space Programme started in 2021, under the new Space Programme Regulation, while the GOVSATCOM Preparatory Action was initiated by the European Parliament in 2019. During the first phase running until 2025, GOVSATCOM will use the capacities and services provided by existing national satcom systems and accredited private operators. In case the first phase proves insufficient to cover the evolving demand, a second phase might see additional bespoke space infrastructure or capabilities being developed through one or several publicprivate partnerships beyond 2025.28

III. Conclusions and Outlook for the Future EUSPA’s mission is to be the user-oriented operational Agency of the EU Space

Programme, contributing to the sustainable growth, security, and safety of the European Union. Facing global challenges, such as the digital revolution, climate change, the energy crisis, and pandemics, threatening the economy at a worldwide scale, society – more than ever – relies on innovative solutions to deal with the big data paradigm, respond to and mitigate natural and man-made disasters, curb the spread of deadly diseases, reduce carbon footprint, ensure security of resources, and strengthen a global supply chain that underpins our daily lives. GNSS, Earth Observation and Connectivity, will play a vital role in contributing to these innovative solutions through dozens of applications that are emerging or already in use by, among others, citizens, governments, international organizations, NGOs, industry, academia, and researchers around the world. According to the most recent edition of the EUSPA’s EO and GNSS Market Report, space technologies and applications provide added value in 17 sectors identified. Over the next years their utilization is expected to be expanded significantly. To name a few, the global-installed base of GNSS devices in use is expected to reach over 10 billion units by 2031.29 Consequently, the global GNSS downstream market revenues, covering both device sales and service-related revenues, is expected to grow at a CAGR of 9.2% over the next decade, reaching a total of €492 billion by 2031. Over 82% of these revenues will be generated by value-added services (i.e., €405 billion in 2031).30 It is interesting to note that, despite a relatively small market share in 2021 (i.e., 5% or €145 million), the Insurance and Finance segment – boosted by the growing use of parametric insurance products in the context of disaster resilience frameworks by commercial entities in areas with high exposure to extreme events – will increase its uptake of EO data and value-added services over the decade, pushing the Insurance and Finance segment to a forecasted €1 billion EO-enabled revenues by 2031 (constituting an 18% market share).31 An investment in a future ready Europe, relying on competitive edge, completing current satellite constellations, developing and launching the next generation of satellites; fostering ambitious research and innovation programs benefiting from Horizon Europe; yannick felici et al.

246  elgar concise encyclopedia of aviation law fighting climate change by monitoring biodiversity, environmental compliance, and CO2 emissions (Paris Agreement); and imposing the EU as a global actor, by supporting disaster relief, humanitarian assistance, and security operations is EUSPA’s outlook for the future.32 In line with this view, the European Commission also entrusted the Agency with additional tasks related to the Space Situational Awareness (SSA) program, particularly regarding program security and the delivery of Space Surveillance and Tracking (SST) services. Furthermore, EUSPA is expected, in accordance with its competences, to undertake new tasks for Secure Connectivity/IRIS.33

Acknowledgments The authors would like to express their gratitude to Laure-Marine Vioujard and Nicole Molinari for their important and appreciated contribution to this chapter. Yannick Felici, Ezio Villa, Christopher Neville, Fiammetta Diani, Reinhard Blasi, and Christina Giannopapa

Notes 1.

Council Regulation (EC) No. 876/2002 of 21 May 2002 setting up the Galileo Joint Undertaking, Official Journal of the European Union L 138, 28.05.2022, pp. 1–8. 2. Council Regulation (EC) No 1321/2004 of 12 July 2004 on the establishment of structures for the management of the European satellite radionavigation programme, Official Journal of the European Union L 246, 20.07.2004, pp. 1–9. 3. EU Agency for the Space Programme (EUSPA) Official Website. Last accessed: 12/07/2022. https://www​.euspa​.europa​.eu/. 4. Regulation (EU) 2021/696 of the European Parliament and of the Council of 28 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme and repealing Regulations (EU) No. 912/2010 (EU), No. 1285/2013, and (EU) No. 377/2014 and Decision No. 541/2014/EU, Official Journal of the European Union L 170, pp. 69–148. 5. Regulation (EU) 2021/696 of the European Parliament and of the Council of 28 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme. Publications Office (europa​.​eu). 6. EU Agency for the Space Programme (EUSPA) Official Website. Last accessed: 12/07/2022. https://www​.euspa​.europa​.eu/. 7. European Union Agency for the Space Programme, Single Programming Document Years 2022–2024, adopted on 31.03. 2022.

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8. Regulation (EU) 2021/696 of the European Parliament and of the Council of 28 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme and repealing Regulations (EU) No. 912/2010 (EU), No. 1285/2013 and (EU) No. 377/2014 and Decision No. 541/2014/EU, Official Journal of the European Union L 170, pp. 69–148. 9. Regulation (EC) No. 1070/2009 of the European Parliament and of the Council of 21 October 2009 amending Regulations (EC) No. 549/2004, (EC) No. 550/2004, (EC), No. 551/2004, and (EC) No. 552/2004 in order to improve the performance and sustainability of the European aviation system, Official Journal of the European Union L300, p. 34; (Regulation (EC) No 552/2004 of the European Parliament and of the Council of 10 March 2004 on the interoperability of the European Air Traffic Management network (the interoperability Regulation), Official Journal of the European Union L096, pp. 26–42; and Regulation (EC) No. 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organization and use of the airspace in the Single European Sky (the airspace Regulation), Official Journal of the European Union L096, pp. 20–25; and Regulation (EC) No. 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the Single European Sky (the service provision Regulation), Official Journal of the European Union L096, pp. 10–19). 10. Regulation (EU) 2021/696 of the European Parliament and of the Council of 28 April 2021 establishing the Union Space Programme and the European Union Agency for the Space Programme and repealing Regulations (EU) No 912/2010, (EU) No. 1285/2013, and (EU) No. 377/2014 and Decision No. 541/2014/EU, Official Journal of the European Union L 170/69, 12.05.2021, pp. 69–148. 11. European Geostationary Navigation Overlay Service (EGNOS) User Support website. Last accessed: 12.09.2022. HOME | EGNOS User Support (essp​-sas​​.eu). 12. EU Agency for the Space Programme (EUSPA) website. Last accessed: 12.09.2022. EU Agency for the Space Programme (europa​.​eu). 13. European Geostationary Navigation Overlay Service (EGNOS) User Support website. Last accessed: 12.09.2022. HOME | EGNOS User Support (essp​-sas​​.eu). 14. Commission Implementing Regulation (EU) 2018/1048 of 18 July 2018 laying down airspace usage requirements and operating procedures concerning performance-based navigation, Official Journal of the European Union L 189, 26.07.2018. 15. EU Agency for the Space Programme (EUSPA) website. Last accessed: 12.09.2022. EU Agency for the Space Programme (europa​.​eu). 16. European Geostationary Navigation Overlay Service (EGNOS) User Support website. Last accessed: 12.09.2022. HOME | EGNOS User Support (essp​-sas​​.eu). 17. Safety Assessment Guidelines for the Implementation of EGNOS-based instrument approaches to non-instrument runways located at aerodromes serving General Aviation. EUSPA, EASA and ESSP, October 2021.

european union agency for the space programme  247 18. EU Agency for the Space Programme (EUSPA) EO and GNSS Market Report, 2022. 19. EGNOS Grant Plan 2021, European Global Navigation Satellite System Agency (GSA), 02.11.2020. 20. EU Agency for the Space Programme (EUSPA) website. Last accessed: 12.09.2022. EU Agency for the Space Programme (europa​.​eu). 21. European Global Navigation Satellite Systems (EGNSS) for Drones Operations White Paper, European Global Navigation Satellite Systems Agency (GSA), 2019. 22. Council Resolution of 19 July 1999 on the involvement of Europe in a new generation of satellite navigation services – Galileo – Definition phase, Official Journal of the European Communities C 221, 03.08.1999, pp. 1–3. 23. EU Agency for the Space Programme (EUSPA) Website. Last accessed: 08/09/2022. EU Agency for the Space Programme (europa​.​eu). 24. Galileo FOC Programme Roadmap, European Commission – Directorate-General Defence, Industry and Space, 12.01.2021. 25. EU Agency for the Space Programme (EUSPA) Website. Last accessed: 08.09.2022. EU Agency for the Space Programme (europa​.​eu).

26. Copernicus History Factsheet, European Commission – Directorate-General Defence, Industry and Space, 16.02.2022. 27. Copernicus – Europe’s Eyes on Earth brochure, European Commission. 28. European Commission, Directorate-General Defence, Industry and Space Website. Last accessed: 08.09.2022. Defence Industry and Space (europa​.​eu). 29. EU Agency for the Space Programme (EUSPA) EO and GNSS Market Report, 2022. Last accessed: 06/09/2022 euspa​_ market​_ report​_ 2022​​ .pdf (europa​.​eu). 30. EU Agency for the Space Programme (EUSPA) EO and GNSS Market Report, 2022. Last accessed: 06/09/2022 euspa​_ market​_ report​_ 2022​​ .pdf (europa​.​eu). 31. EU Agency for the Space Programme (EUSPA) EO and GNSS Market Report, 2022. Last accessed: 06/09/2022 euspa​_ market​_ report​_ 2022​​ .pdf (europa​.​eu). 32. EU Agency for the Space Programme (EUSPA) Website. Last accessed: 06/09/2022 Factsheet_ EUSPace_1502-18h50_EN (europa​.​eu). 33. EU Agency for the Space Programme (EUSPA) Website. Last accessed: 06/09/2022 What we do | EU Agency for the Space Programme (europa​.​eu).

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70. European Union Aviation Safety Agency The European Union Aviation Safety Agency (EASA) is responsible for ensuring high and uniform level of civil aviation safety in the European Union. EASA was established by Regulation (EC) No. 1592/2002 of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (OJ L 240 of 7.09.2002 pages 1–22). The current legal basis for EASA is Regulation (EU) 2018/1139 of 4 July 2018, which amended Regulations (EC) No 2111/2005, (EC) No. 1008/2008, (EU) No 996/2010, (EU) No. 376/2014 and Directives 2014/30/EU and 2014/53/EU and repealed Regulations (EC) No. 552/2004 and (EC) No. 216/2008 and Council Regulation (EEC) No. 3922/91 (OJ L 212, 22.08.2018. pages 1–122). EASA has a legal personality. In each of the Member States, the Agency enjoys the most extensive legal capacity accorded to legal persons under their laws. It may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. The Agency’s headquarters is located in Cologne, the Federal Republic of Germany but it also has an office in Brussels, Belgium, as well as four representative offices in Canada, the United States, China, and Singapore. EASA consists of 31 members, including 27 European Union Member States and four non-EU Member States (Iceland, Lichtenstein, Norway, and Switzerland). Moreover, the Agency cooperates, on the basis of bilateral agreements, with third countries, including Brazil, Canada, China, Japan, the United Kingdom, and the United States, thereby promoting good practices and European civil aviation safety rules. The major mission of the Agency is to establish safe and ecological air travel for European Union airlines on European and intercontinental connections. EASA together with the European Commission and Member State authorities acts as a single and resistant European aviation safety system.

The Agency provides technical support to the European Commission by completing tasks and issuing opinions on the civil aviation technical field. EASA acts internationally and supports the Commission in maintaining relations with third countries. The main goal of this activity is to promote European aviation safety standards, harmonization of rules, and mutual acceptance of aviation certificates. The tasks that help the Agency to carry out its mission are primarily: 1. harmonized legal regulation and standardization process; 2. oversight and enforcement of the common rules and standards; 3. common certification and attestation process of air products and personnel (airworthiness, air crew, aircraft parts and equipment, air traffic controllers, aerodromes and aerodromes safety equipment, unmanned aircraft); 4. high environmental standards beneficial to sustainable aviation development; 5. international cooperation in order to promote high-level standards of aviation safety worldwide; 6. safety intelligence; 7. cybersecurity. The strategic goal of EASA is to improve the general effectiveness of civil aviation, facilitating the movement of goods, services, and people worldwide, assisting Member States in fulfilling their obligations under the 1944 Chicago Convention and increasing passenger overall confidence in civil aviation. The high standard of aviation maintained within the European Union stems from the effect of actions undertaken by the Agency, aimed at conducting any legislative proceedings in a transparent, flexible, and proportional manner. The Agency is in partnership with many trade organizations, including but not limited to the European Defence Agency, the European Organisation for the Safety of Air Navigation (EUROCONTROL), and civil aviation authorities in Member States. EASA supports the Commission in its tasks related to the legislative initiative and plays an important role in creating drafts for implementing and delegated acts in the areas of its competence.

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european union aviation safety agency  249 The Agency supports the exchange of best practices and experience. EASA plays the role of oversight coordinator with its pool of European technical/aviation inspectors. In addition, EASA plays an important role in the oversight and support system for Member States in all areas in which the Agency has high competences (air operations, air traffic management). One of the key responsibilities of the Agency is the certification and attestation of aviation products, but EASA’s sole responsibility is the oversight of the airworthiness of aircraft. Since 2018, the responsibilities of the Agency have included certification of some unmanned aircraft and some elements of aviation security in relation to cybersecurity. A single and unified process of certification within the EU allows for the effective management of this process. EASA, as a European Union Agency, is responsible for setting a uniform standard for training and certification of aviation personnel within the EU. The Agency plays an important role in supporting the European Union in the proactive actions to fight cybercrimes and in minimizing any dangers arising from the process of aviation digitalization. One of EASA’s tasks is to keep a database of safety-related information. Data analysis is a trigger for many actions undertaken by the Agency, for example EPAS (the European Plan for Aviation Safety), which is a continuation of the regional safety plans in each Member State. This plan sets strategic priorities, identifies main dangers, and establishes action plans essential for the upkeep of the European aviation safety system. EPAS is one of the foundations of a stable aviation system. EASA focuses also on the strengthening of cooperation between civil and military aviation. The Agency has an autonomous budget consisting of a contribution from the European Union as well as of fees for publications, trainings, certificates, etc. The EASA budget additionally covers voluntary contributions from third States and donations. The budgetary expenses of the Agency consist mostly of personnel, administrative, operational, and infrastructural expenses.

I. Organizational Structure In terms of the organizational structure EASA comprises:

● ● ●

the Management Board; the Executive Director; the Board of Appeal.

The Management Board is responsible for the establishment of the Agency’s priorities, the budgeting process, and monitoring of the Agency’s activities. The Management Board accepts the annual financial statements, appoints the members of the Board of Appeal, gives its opinion on the rules relating to fees and charges, adopts the European Plan for Aviation Safety, and evaluates the draft of the European Aviation Safety Programme. The Management Board consists of representatives of Member States and a representative of the European Commission. The Management Board members must have appropriate knowledge and recognized experience in the field of civil aviation. The Management Board takes decisions by a majority of its members’ votes with voting rights and each member may cast one vote. In the event of absence of a quorum of two-thirds of members with voting rights, the Chairperson closes the meeting and convenes another one as soon as possible. The decisions of the Management Board may be taken by written procedure, on a motion of the Chairperson, provided that onethird of the members with voting rights do not object. A motion for a decision to be taken by written procedure shall not be subject to amendment. There are usually two EASA Management Board meetings per year; however, the Chairperson may convene an additional meeting according to the needs or when it is requested by at least one-third of the Board members. The Management Board is headed by a Chairperson whose term of office is four years and who is elected by the Management Board from among its members with voting rights. The Chairperson represents the Agency when a contract with the Executive Director is concluded and is responsible for convening the meetings of the Management Board. During the meetings the Management Board members may be assisted by their advisers or experts. The Executive Director of the Agency takes part in the sessions as well but without a right to vote. piotr samson

250  elgar concise encyclopedia of aviation law All Member States have the right to appeal any decision made by EASA to the Board of Appeal. The decisions adopted by the Commission can be appealed to the Court of Justice of the European Union (hereinafter, CJEU). Additionally, all decisions adopted by the Agency are subject to CJEU’s control. The Executive Director manages the Agency and represents it outside. They are is independent in the performance of duties and neither seeks nor takes instructions from any government or from any other body. The Executive Director is appointed by the Management Board for a term of five years. The Executive Director may be removed from office only upon a decision of the Management Board acting upon a motion from the Commission. The main responsibilities of this position include the day-to-day management of the Agency, making decisions on investigations and inspections, approving financial funds, drafting the Agency’s programming document, as well as making decisions on the internal structures of EASA. The Board of Appeal is established as a part of the administrative structure of the Agency, and its members are appointed by the Management Board from a list of candidates proposed by the Commission. The Board is responsible for conducting the appeal procedures from the Agency’s decisions on, inter alia, airworthiness certification, crew certification, aerodrome equipment, environmental certification, and fees and charges. Any legal or natural person may appeal a decision addressed to that person, or a decision that, although in the form of a decision addressed to another person, is of direct and individual concern to the former.

II. Notable Undertakings Over the years, the Agency has played an important role as a beacon of development in the aviation sector. It has also implemented the EASA Big Data Project, which is a data management system. In responding to the immigration situation within the EU, the Agency, working with other European organizations, drafted a proposal for amendments of legal acts to improve border procedures. One of the examples of EASA’s actions having an impact on European aviation is the issuance of certificates that allow the modified versions of piotr samson

Boeing B 737-MAX to restart business operations, after they had been grounded for two years. The Boeing 737 MAX aircraft were grounded all over the world between March 2019 and December 2020 as a result of two crashes involving this type of plane in which 346 people died. Moreover, the Agency’s mandate includes offering services in the area of airworthiness for third country aviation industry entities. In 2020 EASA initiated the ATM/ANS program to sustain and coordinate the process of air traffic management. Under this program, the Agency aims to improve the effectiveness of the European ATM, especially by supporting digitalization as a solution to air traffic management. In the area of integration of unmanned aircraft, air taxis, or suborbital aircraft to civil aviation, safety also remains a priority, along with minimizing any interference with regular aircraft operations. The regulations concerning unmanned aircraft should contribute to pilots’ and operators’ compliance with the rights guaranteed by European Union law (especially the right to privacy and health of EU citizens). The Agency plays an important role in combating the effects of any factors that may have a negative impact on the aviation sector. An example of such an activity are the actions taken by EASA in relation to the COVID-19 global pandemic and the aviation sector crisis that it engendered. The Agency created a set of rules and measures to be implemented to protect the health of passengers and flight crews (Aviation Health Safety Protocol) and initiated the RNO (Return to Normal Operations) project. These actions were aimed at supporting the Member States and the whole sector in battling the crisis. As an answer to the changes and increasing awareness of the need to counteract the negative impact the aviation sector has on the natural environment, the Agency works to set standards for the sector to promote environmental protection. EASA has implemented a special program – the Sustainable Aviation Programme 2020–2024 – and has led certification of the first electrical aircraft. President of the Civil Aviation Authority Mr. Piotr Samson is a manager and air transport expert with over 25 years of professional experience. He completed the full-time MBA at the Cranfield University, United Kingdom

european union aviation safety agency  251 (1994-1995). He also graduated from the Warsaw University of Technology – Master of Science in Industrial Engineering and Management (1989-1994). In 2016 he was appointed President of the Civil Aviation Authority (CAA). He is responsible for the civil aviation oversight. Prior to his appointment, Mr. Samson worked at LOT Polish Airlines and contributed to the establishment of two airlines in Poland: ENTER AIR and BINGO AIRWAYS. In 2019 he was appointed Chair of the European Union Aviation Safety Agency’s (EASA) Management Board. Till the end of 2022 he was Vice-President of the European Organization for the Safety of Air Navigation’s (EUROCONTROL) Provisional Council. Since May 2020 he has also been a member of the European Civil Aviation Conference’s (ECAC) Coordinating Committee, where he holds the function of a Focal Point for Safety”. Piotr Samson

Bibliography Aviation Health-Safety Protocol https:// www.ecdc.europa.eu/sites/default/files/ d o c u m e n t s / Jo i n t %2 0 E A SA- E C D C Aviation-Health-Safety-Protocol-issue-317-June-2021.pdf EASA Consolidated Annual Activity Report 2020 https://www.easa.europa.eu/ document-library/general-publications/ consolidated-annual-activity-report-2020 EASA Management Board Decision 05-2021 of 10.12.2021. Regulation (EU) 2018/1139 of the European Parliament and of the council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union

Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 (OJ L 212/1 of 22.08.2018, p. 1–122). Regulation (EC) No 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (OJ L 240 of 7.09.2002, pp. 1–22). Return to Normal Operations – from EASA Single Programing Document 2022-2024 https://www.easa.europa.eu/sites/default/ files/dfu/easaspd2022-2024.pdf

References https://airportindustry​-news​.com​/associations​ /european​-union​-aviation​-safety​-agency/ https://www​.easa​.europa​.eu​/document​-library​ /general ​ - publications ​ / european ​ - plan​ -aviation​-safety​-epas​-2019​-2023​-summary​ -leaflet https://www​.easa​.europa​.eu​/light​/easa https://www​.easa​.europa​.eu​/sites​/default​/ files​/dfu​/ B737​_ Max​_ Return​_ to​_ Service​ _Report​.pdf https://www​.iaa​.ie​/who​-we​-are​/aviation​-and​ -the​-environment​/european​-aviation​-safety​ -agency htt ps://www​ . ifn​ . news​ / posts​ / easa​ - ba ns​ -pakistan​-international​-airlines/ https://www​ . inn​ ovat​ ionn​ ewsn​ e twork​ .com​ /easa ​ - the ​ - european ​ - unions ​ - strategy​ -for​ -aviation​-safety​/5934/

piotr samson

71.  Extraordinary Circumstances The concept of “extraordinary circumstances” is intrinsically connected with the passengers’ protection regime established by EU Regulation 261/2004 (European Parliament and Council Regulation (EC) 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights [2004] OJ L46/1). This Regulation covers several “inconveniences” that can affect passengers during air transport operations – namely, denied boardings, cancellations, delays, and downgrading – and provides for the right to monetary compensation, as per its Article 7, in certain situations. Lex lata, this is the case for denied boardings and cancellations, but this right to monetary compensation was further extended to delays on arrival superior to three hours by the Court of Justice, in its famous Sturgeon case (Joined cases C-402/07 and C-432/07, Sturgeon [2009]). The first sentence of Recital 14 of Regulation 261/2004 nevertheless states that: “As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.” Hence, “extraordinary circumstances” can be invoked to exclude the right to monetary compensation, according to Article 5, para 3 of the Regulation. According to the objective of this Regulation, however, which is to ensure a high level of protection for passengers, this “extraordinary circumstances” defense cannot be invoked in the advent of denied boardings, but only in cases of cancellations and, following the Sturgeon case, delays. The second sentence of Recital 14 of Regulation 261/2004 provides for a list of examples of such extraordinary circumstances: “Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.” The Regulation, however, does not precisely define this notion. It is nevertheless clear that it differs from the

traditional concept of “force majeure,” since the latter was proposed by the European Parliament during the preparatory works but rejected by the Council of the European Union (EU). The difference between the two notions does not seem to be solely semantic, despite their conceptual proximity. While the concept of force majeure requires that harmful effects cannot be avoided despite the diligence of the carriers invoking it, the concept of extraordinary circumstances requires that it is the “extraordinary circumstance” itself that cannot be avoided despite the measures implemented by the airlines. The Court of Justice of the EU delivered various interpretations of the concept of “extraordinary circumstances,” with the effect of progressively restricting the possibility for the airlines to escape from their obligation to pay monetary compensation. In its WallentinHermann case (Case C-549/07, WallentinHermann [2008]), the Court recalled one of the general principles of interpretation of European Union law, namely, that in EU law any exception is to be interpreted strictly. Accordingly, it noted that “the Community legislature intended to confer exemption from the obligation to pay compensation to passengers in the event of cancellation of flights not in respect of all extraordinary circumstances, but only in respect of those which could not have been avoided even if all reasonable measures had been taken” (Case C-549/07, Wallentin-Hermann [2008], para 39). Airlines are thus subject to two cumulative conditions: (1) they must characterize the existence of an extraordinary circumstance, and (2) they must show that this circumstance could not have been avoided even if all reasonable measures had been adopted. Regarding the existence of an extraordinary circumstance – that can also be invoked if it impacted a previous flight operated by means of the same aircraft (Case C-74/19, TAP [2020], paras. 53–54; Case C-826/19, Austrian Airlines [2021], para 55) – the Court judged that “the circumstances surrounding such an event can be characterised as ‘extraordinary’ within the meaning of Article 5(3) of Regulation No 261/2004 only if they relate to an event which, like those listed in recital 14 in the preamble to that regulation, is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin” (Case

252

extraordinary circumstances  253 C-549/07, Wallentin-Hermann [2008], para 23). The characterization of events that are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its effective control is particularly delicate for airlines. These two conditions are cumulative, and the approach followed by the Court of Justice is highly casuistic. For example, volcanic eruptions that interrupted air traffic have been described as “extraordinary circumstances” (Case C-12/11, McDonagh [2013]), as well as collisions between aircraft on the tarmac (Case C-264/20, Airhelp [2021]), the presence of oil on the airport runway (Case C-159/18 [2019], Moens), damage to a tire by a foreign object (Case C-501/17, Pauels [2019]), or bird strike (Case C-315/15, Pešková and Peška [2017]). However, other events have been described as “inherent in the normal exercise of the activity of air carrier,” such as the impact of a mobile staircase causing structural damage to an aircraft wing (Case C-394/14, Siewert [2014]) or the failure of a so-called on-condition part (Case C-832/18, Finnair [2020]). While it may seem very difficult, a priori, to identify the ratio decidendi in these various cases, it seems that the Court attaches particular importance to the degree of “control,” not to say “responsibility,” of the airline. It admits, in fact, the classification of extraordinary circumstances only in the presence of events entirely external to the carriers (Case C-28/20, Airhelp [2021], para 39), thus adopting a restrictive approach to the concept of effective control. The Court of Justice has held that a technical problem, which occurred unexpectedly and was not attributable to a lack of maintenance, does not fall within the concept of extraordinary circumstances (Case C-254/14, van der Lans [2015]). In its Krüsemann ruling (Case C-195/17 and others, Krüsemann [2018]), the CJEU has indicated that air carriers may, in an ordinary manner, be confronted, in the exercise of their activity, with disagreements, or even conflicts, with the members of their staff or with part of such personnel. It concluded that a “wildcat strike,” that is to say, a strike not declared in advance and therefore illegal under national law, does not fall within the category of extraordinary circumstances. In posterior cases, the Court held that a strike constitutes “one of the possible expressions of social negotiation” (Case C-287/20, Ryanair [2022], para 23 ; Case C-613/20, Eurowings

[2021], para 20 ; Case C-28/20, Airhelp [2021], para 28) and is therefore inherent in the normal exercise of the activity of an air carrier. The CJEU considers, moreover, that since the strike is a foreseeable event, a fortiori when it is announced, the employer has, in principle, the means to prepare for it. In other words, the employer would retain a certain control of the events (Case C-287/20, Ryanair [2022], para 27) and to be insufficiently prepared demonstrates a failure on the ground to take reasonable measures. The wording adopted in Article 5(3) of the Regulation reveals a certain ambiguity as to the very purpose of the reasonable measures required to invoke the exemption on grounds of extraordinary circumstances. The question arises as to whether the reasonable measures must concern the extraordinary circumstance, i.e., the cause of the cancellation or delay, or its consequences, namely the cancellation or delay as such. The Court’s answer to the latter question is relatively ambiguous. In Wallentin-Hermann, it stated that “since not all extraordinary circumstances confer exemption, the onus is on the party seeking to rely on them to establish, in addition, that they could not on any view have been avoided by measures appropriate to the situation” (Case C-549/07, Wallentin-Hermann [2008], para 40), implying that reasonable measures must be aimed at avoiding the occurrence of the extraordinary circumstance. However, in the Eglitis and Ratnieks judgment (Case C-294/10, Eglitis and Ratnieks [2011], para 27) and Pešková and Peška (Case C-315/15, Pešková and Peška [2017], para 29), the Court analyzed the reasonableness of the measures adopted to avoid the harmful consequences of an extraordinary circumstance. In any case, the measures adopted by the airlines are to be interpreted in concreto by national courts, which must be careful not to require carriers to make unbearable sacrifices (Case C-294/10, Eglitis and Ratnieks [2011], para 25). However, this indication does not shine by its precision, because it leaves a large place for potentially divergent readings. For instance, the CJEU held that, as part of reasonable measures in cases of avian collisions, air carriers are required to have recourse to controls “preventing the presence of such birds provided that, in particular at the technical and administrative levels, such measures can actually be taken by that air carrier, that those measures do not require it to make intolerable vincent correia

254  elgar concise encyclopedia of aviation law sacrifices in the light of the capacities of its undertaking and that that carrier has shown that those measures were actually taken as regards the flight affected by the collision with a bird, it being for the referring court to satisfy itself that those conditions have been met” (Case C-315/15, Pešková and Peška [2017], para 48). In Eglitis and Ratnieks, the Court ruled that the air carrier must plan a certain reserve of time to be able to carry out flights once extraordinary circumstances have come to an end (Case C-294/10, Eglitis and Ratnieks [2011], para 28). This solution is questionable, as it obliges airlines to “reserve time” to deal with the harmful consequences of events that are, by definition, unforeseeable and beyond their effective control! Finally, in its TAP ruling of 11 June 2020, the Court held that an airline cannot limit itself to re-routing the passengers to their final destination by the next flight it operates itself (Case C-74/19, TAP [2020], para 58) where other flights, direct or indirect, operated by other airlines would have enabled the passenger to reach earlier his final destination. Such a solution is obviously favorable to the passengers. It nevertheless opens the door to potentially abusive claims and decisions, which can have the effect of virtually sterilizing the possibilities of exemption due to the occurrence of extraordinary circumstances. Following that decision, the national courts saw a proliferation of claims based on the existence of other alternative flights, some of which reached the passenger’s final destination only a few minutes before the re-routing flight offered by the airline. Here again, the Court’s solution lacks nuance: while it is obviously unacceptable to let passengers wait several hours (or days) when alternative solutions exist, it may seem excessive to sanction airlines for differences of only a few minutes. In any case, when it is necessary to re-route all the passengers of an affected flight, the airline’s employees must seek, in consultation with the many passengers concerned, all the alternative solutions, in order to offer them the fastest re-routing. Vincent Correia

References Ruwantissa Abeyratne, ‘Responsibility and Liability Aspects of the Icelandic Volcanic Eruption’, [2010] 35 Air and Space Law 281 vincent correia

Kinga Arnold, Pablo Mendes de Leon, ‘Regulation (EC) 261/2004 in the Light of the Recent Decisions of the European Court of Justice: Time for a Change?!’ [2010] 35 Air and Space Law 91 John Balfour, ‘Extraordinary Circumstances Defence in EC Regulation 261/2004 after Wallentin-Hermann v. Alitalia’ [2009] 58 Zeitschrift fur Luft – und Weltraumrecht 224 John Balfour, ‘Airline Liability for Delays: The Court of Justice of the EU Rewrites EC Regulation 261/2004’ [2010] 35 Air and Space Law 71 Jochem Croon, ‘Placing Wallentin-Hermann in Line with Continuing Airworthiness: A Possible Guide for Enforcers of EC Regulation 261/2004’ [2011] 36 Air and Space Law 1 Jochem Croon, ‘Wallentin-Hermann and a Safe Flight’ [2012] 61 Zeitschrift fur Luft – und Weltraumrecht 609 Jochem Croon, Fina Verbeek, ‘Regulation (EC) 261/2004 and Internal Strikes Under Article 5.3: “It’s All About Control, Stupid”’ [2019] 44 Air and Space Law 485 Cyril-Igor Grigorieff, ‘Arrêt “McDonagh”: certaines circonstances extraordinaires peuvent-elles libérer les compagnies aériennes de leurs obligations vis-à-vis des passagers  ?’ [2013] 198 Journal de droit européen 147 Peter P.C. Haanappel, ‘Compensation for Denied Boarding, Flight Delays and Cancellations Revisited’ [2013] 62 Zeitschrift fur Luft – und Weltraumrecht 38 Jeremy Heymann (ed.), Règlement (CE) n°261/2004 sur la protection des passagers aériens – Commentaire article par article (Bruylant 2021) Anna Masutti, Il ritardo nel trasporto aereo – Prevenzione e responsabilità (Giappichelli 2008) Alexander Milner, ‘Regulation EC 261/2004 and “Extraordinary Circumstances”’, [2009] 34 Air and Space Law 215 Tania Pantazi, ‘“I Know that I Know Nothing”: Extraordinary Circumstances in Air Passenger Rights Regulation’ [2020] 28 European Review of Private Law 1093 Ricardo Pazos, ‘The Extraordinary Circumstances Defence in Regulation (EC) 261/2004’ [2021] 46 Air and Space Law 739 Francesco Rossi Dal Pozzo, Servizi di trasporto aereo e diritti dei singoli nella disciplina comunitaria (Giuffrè 2008)

extraordinary circumstances  255 Ronald Schmid, ‘May a Technical Fault with an Aircraft be Considered as “Extraordinary Circumstances” in the Meaning of the Regulation (EC) n°  261/2004?’ [2007] 32 Air and Space Law 376 Laurent Siguoirt, Nicolas Balat, Jérémy Jourdan-Marques (eds.), L’indemnisation

et l’assistance des passagers du transport aérien – Regards civilistes sur le règlement n°261/2004 (Lexisnexis 2019) Tom van der Wijngaart, ‘Case Note: van der Lans v. KLM and “Extraordinary Circumstances”’ [2016] 41 Air and Space Law 59

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72. Flight Duty Time I. Definition The term “flight duty time” is generally defined as a period that commences when a crew member is required to report for duty and finishes when the aircraft finally comes to rest and the engines are shut down, at the end of the last sector on which the crew member acts as an operating crew member. Such period may include the operation of a single sector (flight) or a series of sectors (flights). The term is understood to refer to that area of aviation operations – and regulation – that provides for specific technical limitations with regard to aircrew duty hours. In fact, aircrew work is a sui generis type of work, requiring long hours, night duty, and fatigue, and, as such, it requires special conditions. Although being well-established worldwide, flight duty rules are defined and interpreted variously in the different jurisdictions. Similarly, also the respective regulation is not internationally uniform, with different rules in place depending on the country aircrew operates in.

II. International Law Annex 6 to the International Convention on Civil Aviation (The Chicago Convention [1944]) requires that States shall establish regulations imposing limitations applicable to flight duty times, flight duty periods, duty periods, and rest periods, based upon scientific knowledge and operational principles. This shall ensure that flight crew are performing at an adequate and uniform level of alertness. While Annex 6 prescribes State responsibility in the adoption of adequate regulation relating to flight duty times, it also mandates operators to establish fatigue management schemes or programs that are acceptable to the regulatory authorities. The concepts of flight duty time and fatigue are strictly connected with the relevance of human factors in aviation, which have been increasingly recognized as contributing factors in the context of accident investigation reports. In fact, it has been estimated that between 60% to 80% of aviation accidents are caused by human error, which is often caused by fatigue. For example, fatigue was a contributing factor in the accident involving the Colgan

Air flight 3407, which crashed in 2009 in the United States killing all people on board. The case was so significant that it favored a revision by the Federal Aviation Administration (FAA) of both pilot qualification procedures and flight time rules. More recently, fatigue was considered as a decisive factor in the well-known fatal accident of the FlyDubai flight 981, which crashed in Rostov, Russia, in 2016, whereby the pilots suffered from impaired decision-making due to sleep deprivation and prolonged night duty. As a means to enhance safety of air travel, Annex 6 provides that the State of the operator shall establish regulations imposing flight time limitations (FTLs) for crew members. These regulations shall also make provision for adequate rest periods and shall be such as to ensure that fatigue occurring either in a flight or successive flights or accumulated over a period of time due to these and other tasks does not endanger the safety of a flight.

III. The ICAO Fatigue Management System Fatigue can arise from a large number of causes, the most common of which are attributed, inter alia, to irregular sleep and work patterns, long flying hours, long time awake, long duty-on-call periods, early starts, night duties, and multiple legs. Scientific studies have shown that, when tired, pilots, whose physical and mental fitness is essential for the regular operation of an aircraft, are prone to short-term memory loss, impaired judgment, poor decision-making, and increased reaction times. In aviation, fatigue refers to “a physiological state of reduced mental or physical performance capability resulting from sleep loss, extended wakefulness, circadian phase, and/or workload (mental and/ or physical activity) that can impair a person’s alertness and ability to perform safety related operational duties.” ICAO, along with the International Air Transport Association (IATA) and the International Federation of Airlines’ Pilots Association (IFALPA), has developed and published the Fatigue Management Guide for Airline Operators, containing prescriptive and performance-based fatigue management approaches. This is part of the broader ICAO Fatigue Risk Management System (FRMS), which represents a “means of continuously monitoring and managing fatigue-related

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flight duty time  257 safety risks, based upon scientific principles, knowledge and operational experience that aims to ensure relevant personnel are performing at adequate level of alertness.” The FRMS is intended to mitigate fatigue and is integrated on common principles of risk management, safety assurance processes, safety promotion, just culture, and safety policies. In this light, the system is entirely dependent on an effective safety reporting culture, which calls for a continuous monitoring approach. Remarkably, the existence of an effective fatigue management system does not substitute for the need to establish flight and duty time restrictions nationally or locally.

IV. Flight Time Limitations in the European Union In the European Union (EU), the Aviation Safety Agency (EASA) is mandated to lay out technical requirements, operational rules, and administrative procedure relating to civil aviation, including pilots’ and cabin crew’s training and work. Against this backdrop, Regulation (EEC) No. 3922/91 provides rules and procedures to mitigate aircrew fatigue caused by long duty hours and short rest periods. In particular, the spirit of the Regulation emphasizes the dangers connected with fatigue accumulation, sleep deprivation, and long duty hours. This Regulation governs the rhythm “dutyrest” and establishes FTLs for aircrew. The whole system of FTLs resonates around the notion of flight duty period, which is defined as “any time during which a person operates in an aircraft as a member of its crew.” For this purpose, a flight duty period starts when the crew member is required by an operator to report for a flight – or a series of flights – and it finishes at the end of the last flight on which he/she acts as an operating crew member. The limitations are specified in Subpart FTL of Regulation (EU) No. 965/2012, which details the technical aspects of FTLs for civil aviation aircrew. This Regulation has been amended by Regulation (EU) No. 83/2014, introducing Part-ORO (Organisation Requirements for Air Operations), which further clarifies that an operator is requested not to allow its crew members to perform beyond 110 duty hours in 14 consecutive days and 1,000 flight hours in 12 consecutive months. Furthermore, weekly

rest is set at 12 hours twice per month. The combination of standby at the airport with flight duty is capped at 16 hours. EASA engages with national aviation authorities (NAAs) and industry stakeholders to promote the provision and use of rest facilities at or near airports. This improves the probability of obtaining sleep as close as possible to the start of night duties, as well as the use of resting opportunities when working at night. The European FTLs scheme is also notable insofar as it refers to the concept of “home base,” which has become fundamental in the context of European air transport. In fact, the rise of low-cost fares has made it possible for airlines to establish multiple bases across the Union, with repercussions on the operational and the labor-related spheres. According to the Regulation, a home base coincides with the location designated by the operator to the crew member from where the crew member normally starts and ends a duty period and where, under normal conditions, the operator is not responsible for the accommodation of the crew member. This definition has proved its relevance also in other areas of aviation labor regulation, such as contractual and jurisdictional matters. A study on pilot fatigue conducted in 2014 by the European Cockpit Association (ECA), surveying a large number of pilots in selected European jurisdictions, has shown significant concerns. Pilot fatigue emerged to be common, dangerous as well as considerably underreported in Europe. For example, around 50% of surveyed pilots reported falling asleep involuntarily in the cockpit or experiencing episodes of microsleep. However, almost 80% of fatigued pilots would not file a fatigue report due to the fear of disciplinary actions or stigmatization.

V. Flight Duty Times in the United States The FAA has designed a number of rules to reduce pilot fatigue. These rules apply to all flights, international and domestic. Under the FAA regulations, flight time refers to the period during which the plane is under power and capable of movement. Pursuant to 14 C.F.R. § 1.1., flight time means: “(i) pilot time that commences when an aircraft moves under its own power for the purpose of flight and ends when the aircraft andrea trimarchi

258  elgar concise encyclopedia of aviation law comes to rest after landing; or (ii) for a glider without self-launch capability, pilot time that commences when the glider is towed for the purpose of flight and ends when the glider comes to rest after landing.” This scheme includes not only the actual flight time, but also tasks such as taxiing, de-icing, and waiting time if the engines are on. If the pilot’s first flight of the day begins between 5 a.m. and 7:59 p.m., the maximum flight time limitation is nine hours if there is only one pilot on the flight. If the first flight begins at any other time, the maximum flight time is eight hours. If there are three pilots on the flight, the limit can be extended to 13 hours, and four pilots increase the limit to 17 hours. In the United States, flight duty begins the moment a pilot reports for duty with the expectation of conducting a flight and does not end until he has parked the plane and switched-off the engines on his last flight. Unless it is foreseen that the pilot is on break, also certain activities such as standing by at the airport, training, and traveling as a passenger to take on duty at a different airport may count as flight duty. Cumulative flight limitations set up that crew members cannot be assigned to work for more than: (1) 500 hours in any calendar quarter; (2) 800 hours in any two consecutive calendar quarters; and (3) 1,400 hours in any calendar year. In particular, pilots’ activity is limited to a maximum of 60 hours of flight duty per week, defines as 168 consecutive hours. In any consecutive 28-day period, a pilot cannot exceed 290 hours, of which no more than 100 can be flight time.

VI. Conclusions FTLs represent an essential part of aviation regulation. The main aim of limiting flight duty is to ensure control of fatigue and standardization of regulations globally. Limitations are usually designed in order to detail the maximum time on duty a crew

andrea trimarchi

member can work, how long he/she can cumulatively work, as well as minimum rest periods. Given the essential nature of aircrew work, there is a widespread – if not universal – adherence to Annex 6. Yet, though flight duty times are variously regulated worldwide, it is possible to underline that there is a common spirit, which translates into a common understanding that national legislation shall adequately provide for detailed FTLs in accordance with ICAO Standards and Recommended Practices. Andrea Trimarchi

References Ruwantissa Abeyratne, ‘Fatigue Risk Management Systems: Issue of Air Crew Integrity and Liability’, 37(2) Air & Space Law, 119–140 (2012). John A. Caldwell, ‘Fatigue in Aviation’ 3(2) Travel Medicine and Infectious Disease, 85–96 (2004). Convention on International Civil Aviation, opened for signature 7 Dec. 1944, 15 U.N.T.S. 295, entered into force 4 Apr. 1947, ICAO Doc. 7300. Marina Efthymiou, ‘Flight Crew Evaluation of the Flight Time Limitations Regulation’, 9(1) Case Studies on Transport Policy 280–290 (2021). European Cockpit Association, Fatigue Risk Management in Europe (2014). European Cockpit Association, Barometer on Pilot Fatigue (2012). International Civil Aviation Organization, Fatigue Management Guide for Airlines Operators, 2nd edition (2015). Pablo Mendes de Leon, Introduction to Air Law, 11th edition, (Kluwer Law International, 2022). Andrea Trimarchi, International Aviation Labour Law, (Routledge, 2022). United States Code of Federal Regulations, Part 14.

73. Flight Information Region I. Definition and Legal Basis The number of civil aircraft increased rapidly after the end of World War II. Such increase is in line with the growth of commercial flights, both scheduled and non-scheduled. As a result, today’s aviation industry shows that global air traffic has become more condensed – with the exception of the drastic flights reduction due to the COVID-19 pandemic between 2020 and 2022. To encourage seamless connectivity of air transportation, the International Civil Aviation Organization (ICAO) manages the airspace to ensure that flight safety and security are maintained at the highest level. One of the instruments to reach ICAO’s goal is through professional management of Flight Information Region (FIR). A FIR is an airspace of defined dimensions within which Flight Information Service and Alerting Service are provided on behalf of a State (ICAO [2005]). It is one of the most critical elements within the aviation world in connection with Air Navigation Services (ANS). Pilots rely on its service as provided by the designated Air Traffic Controller (ATC) in order to ensure a maximum level of flight safety. Article 28 of the Chicago Convention of 1944 in conjunction with Annexes 2 and 11 form the main legal basis of FIR. Other relevant provisions within the Chicago Convention of 1944 are Articles 11, 12, 37, and 44 as well as Chapter XV. Such provisions reveal that existing FIRs are related and linked to the implementation plan of ANS and Air Traffic Management (ATM). The ICAO Council has five subsidiary bodies related to the implementation of ANS. Two bodies relevant to FIR are the Air Navigation Commission (ANC) and Committee on Joint Support of Air Navigation Services. As ICAO divided the world into nine air navigation regions, ANC plays a role in facilitating Regional Air Navigation Meeting (RAN Meeting). The meeting result leads to a Regional Air Navigation Plan (RANP). The Committee on Joint Support of Air Navigation Services itself has played an important role pertaining to ANS over the high seas through concluding joint financing agreements (Antwerpen [2008]).

Furthermore, ANS is one of the eight essential audit areas with reference to ICAO Universal Safety Oversight Audit Programme (USOAP), which was introduced in 1999. ICAO runs USOAP with continuous monitoring approach to oversee its Member States’ effective implementation of ICAO Standards and Recommended Practices (SARPs), procedures, and aviation safety best practices (ICAO [2020]). Thus, FIR is not defined simply as a standalone term, but it is highly linked to ANS and its technicalities.

II. Balancing Flight Safety, Efficiency, and Sovereignty The traditional FIR approach is to offer ANS in line with the territorial boundaries of the State. The designated Air Navigation Service Provider (ANSP) was used to be performed solely by each relevant State. Liberalization has led to the appointment of private enterprise to replace the State as ANSP. There are a few reasons behind privatization, among others, fixing cost-inefficiencies as well as reforming bureaucracy. These steps are taken to ensure flight safety is maintained at the highest level. For some States, managing FIR by themselves may not be the most effective option given their limited airspace. With regard to this, the world has witnessed some efforts to improve efficiency, such as the introduction of nine Functional Airspace Blocks (FABs) in Europe. This initiative does not intend to dissolve existing FIRs, but merely encouraging synchronization with neighboring ANSPs operations in managing their own respective FIR. FAB is defined as: an airspace block based on operational requirements and established regardless of State boundaries, where the provision of air navigation services and related functions are performance driven and optimized with a view to introducing, in each functional airspace block, enhanced cooperation among air navigation service providers, or, where appropriate, an integrated service provider. (see Art. 1(h), point 25 of European Union Regulation 1070/2009)

EU Regulation 1070/2009 postulates that airspace should prioritize efficiency rather than be organized along national boundaries (Mendes de Leon [2017]). The successful implementation of FABs needs political commitment, otherwise the traditional FIR

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260  elgar concise encyclopedia of aviation law approach will prevail and hinder the Single European Sky’s vision. In the Asia-Pacific region, the ongoing Jakarta-Singapore FIR issue is often brought to the discussion table. There are two FIRs within Indonesian airspace, namely Jakarta FIR and Ujung Pandang FIR established on 12 May 2005 (see The Indonesian Directorate General of Civil Aviation’s Supplement Aeronautical Information Publication No. 02/05 on 14 April 2005). Since 1946, some portions of Indonesian airspace above Batam, Bintan, Natuna, and Riau Islands are managed by Singapore FIR. As these islands are located within Indonesian territory, it is no surprise that there have been many public debates for decades regarding whether such assignment constitutes an infringement of sovereignty (Nugraha [2018]). Article 28 of the Chicago Convention of 1944 per se does not expressly mention sovereignty. However, from the perspective of the Indonesian Armed Forces (Tentara Nasional Indonesia), the delegated airspace is considered critical for national defense. Leaving such airspace – also known as critical borders in military terminology – within another State’s control is considered an infringement of Indonesian sovereignty (Nugraha [2021]). Furthermore, Article 458 of the Indonesian Aviation Law of 2009 sets a deadline that national airspace delegated to another State must be returned to Indonesia by no later than 2024. Such intention, laid out within the national legal framework, shows the political will pertaining to FIR realignment. The realignment efforts into Jakarta FIR have been discussed since the Asia-Pacific RAN Meetings held in Bangkok (1993), Singapore (1983), and Honolulu (1973). ICAO suggested that matters pertaining to the Jakarta-Singapore FIR must first be solved bilaterally between both governments before moving to a RAN Meeting. ICAO can only try its best to conciliate the conflicting States without any guarantee whether or when the FIR issue will be settled. In January 2022, Indonesia and Singapore signed an agreement on the realignment of the airspace into Jakarta FIR with certain conditions to become effective. In the end, FIR realignment is finally done when the Aeronautical Information Publication (AIP) was revised. The practices mentioned above show that FIR can be expanded beyond States’ ridha aditya nugraha

jurisdiction due to various reasons, from technical to political. However, national claims of FIR may overlap, thus creating areas of disputed jurisdiction that can potentially lead to tensions and even open conflict among States.

III. State Responsibility and Liability There has been a concern to prevent midair collisions within each respective FIR. In March 1973, a mid-air collision in French airspace occurred between a Spanish chartered Coronando 990 and a DC-9 operated by Iberia – killing all 68 people aboard the DC-9 aircraft while the former was able to land. Coincidently, the French air traffic controllers were on strike and replaced by the French Air Force when the tragedy occurred (BBC News [1973]). In September 1976, another mid-air collision occurred in the former Yugoslavia airspace between British Airways Trident and Inex Adria DC-9. The total fatalities were 176 people, including all crew and passengers onboard both aircraft. The infamous tragedy was known as the Zagreb mid-air collision. In November 1996, a mid-air collision occurred in India between Saudi Arabian Airlines Boeing 747-100 and Kazakh Airlines Ilyushin II-76, killing 349 people. There were shortcomings at the ATC side besides the unauthorized descent of Kazakh Airlines and the absence of an onboard Traffic Collision Avoidance System (TCAS) (M. KingsleyJones and D. Learmont, [1996]). The latest mid-air collision happened above German territory in July 2002. DHL Boeing 757 freighter and Bashkirian Airlines Tupolev TU-154 collided at an altitude of 34,890 feet. There were no survivors among all 71 passengers and crews onboard both aircraft. Interestingly, this tragedy, which is also known as the Überlingen or Lake Constance accident, became the first accident involving cross-border ANSP (Antwerpen [2008]). Investigators pointed out the fault on Skyguide side, which led to an out-of-court settlement to the passengers’ heirs (swissinfo, n.d.). There were also cases of near mid-air collisions. An infamous one is the near-miss accident of Japan Airlines above Suruga Bay between its Boeing 747-400 and a DC-10 aircraft above Japanese airspace in 2001. Imprisonment awaits the supervisor and trainee in service at the ATC, who mixed up

flight information region  261 the flight numbers that caused the incident (tokyoweekender [2022]). With regard to the Überlingen case, Skyguide was performing ANS in small areas of the southern part of German airspace on behalf of a State (Switzerland). In other words, such FIR was delegated from Germany to Switzerland after World War II ended. Hence, Germany was also held liable pursuant to the District Court of Konstanz decision on 27 July 2006 (see Case Number 4 O 234/05 H (Fourth Chamber)). Previous accidents and incidents raised a question on how far State(s) could be held liable. A State acting as the ANSP bears responsibility to comply with the Chicago Convention of 1944 provisions as well as both Annexes 2 and 11. Article 28 of the Chicago Convention of 1944 also regulates delegation of airspace, which refers to FIR. However, such cases show national laws prevail when it comes to liability. On a global scale, as today there is no uniformity pertaining to ANSP liability, especially to accident occurs within the designated FIR.

IV. Challenge in Accommodating Civil and Military Flights Military flights or those performed by State aircraft are not subject to the Chicago Convention of 1944. The increasing need for military exercises and operations has led to the question of how to encourage collaboration between civil and military flights. As a breakthrough, Flexible Use of Airspace (FUA) is a concept attached to FIR. FUA sets a dual use of airspace for both civil and military flights, aiming to reduce airspace segregation and encouraging flight efficiency. For example, a permanent closure of certain portions of airspace for military training upon a certain location marked as “danger area” could be avoided. Article 9 of the Chicago Convention of 1944 provides such rights to restrict or prohibit aircraft flying over certain territory without time restriction. The introduction and implementation of FUA will lead to new flight paths determination, which are open to civil flights outside the training period. This initiative could shorten flight time and save fuel within FIR acknowledging FUA. However, there is no uniform FUA provisions in FIR as it depends on each respective

State or regional association. Europe is one of the first to introduce FUA along with its technicalities (Antwerpen [2008]). As the latest development, the new Jakarta FIR plan shall accommodate FUA following the Indonesia-Singapore FIR agreement in early 2022.

V. Conclusion: The Way Forward FIR is not a standalone instrument, but it is closely linked to ANS implementation. Multidimensional issues and matters related to sovereignty in some cases related to FIR cannot be overlooked. Article 28 of the Chicago Convention of 1944 provision on “delegation of authority” pertaining to ANS has evolved into “delegation of sovereignty” when fundamental national interests are involved, such as defense and security. Flight safety and efficiency is one thing, but other aspects need to be taken into consideration, as shown in the recent development. Last but not least, a State must be able to mitigate its liability in connection with ANSP operations, including in crossborder practice, at its designated FIR. Ridha Aditya Nugraha

References BBC News, ‘On this Day 1950–2005’ 5 March 1973, (BBC News, 20 December 2022) . Case 4 O 234/05 H District Court of Konstanz (Fourth Chamber) [2006]. Council Regulation (EC) 1070/2009 amending Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004 and (EC) No 552/2004 in order to improve the performance and sustainability of the European aviation system, Art 1. ICAO, ‘Safety Compliance and Verification’ (ICAO, 20 December 2022) . ICAO, ‘Rules of the Air’ (Tenth Edition 2005). Matthew Hernon, ‘On this Day in Japan: JAL’s Near Miss Collision Above Suruga Bay’ (tokyoweekender, 20 December 2022) . ridha aditya nugraha

262  elgar concise encyclopedia of aviation law M. Kingsley-Jones and D. Learmont, ‘Collision Raises Doubts on ATC Routings’ [1996]. . Niels van Antwerpen, Cross-Border Provision of Air Navigation Services with Specific Reference to Europe: Safeguarding Transparent Lines of Responsibility and Liability (Wolters Kluwer 2008). Pablo Mendes de Leon, Introduction to Air Law (10th Edition, Wolters Kluwer 2017). Ridha Aditya Nugraha, ‘Flight Information Region above Riau and Natuna Islands: The Indonesian Efforts to Regain Control

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from Singapore’, 67(2) Zeitschrift für Luftund Weltraumrecht 236–253 (2018). Ridha Aditya Nugraha, ‘Gen. Andika, Indonesia’s Airspace is Not Completely in Our Hands’, (The Jakarta Post, 20 December 2022) . Swiss Info, ‘Crash Report Blames Controller and Russian Pilots’ (Swiss Info, 22 December 2022) . The Indonesian Directorate General of Civil Aviation’s Supplement Aeronautical Information Publication [2005] No. 02/05.

74. Freedoms of the Air1 ●

I. Defining the Freedoms The freedoms of the air are a set of nine operational and commercial aviation rights. Fundamentally, the freedoms allow the aircraft of one State to access the airspace of another State party to the Chicago Convention on international civil aviation (1944). The commercial freedoms of the air allow the operators from one State to carry traffic to, from, or within the territory of that or another State. The freedoms of teh air exist because the standard position in international law is that the airspace - the three-dimensional area overlying land and sea - of one State is not freely accessible to airlines of another State. The nine freedoms of the air, which shall be analyzed in more detail below, can be concisely described as follows: ●

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first, the freedom of an aircraft from one State (State A) to fly through the airspace of another State (State B) without landing; second, the right of an aircraft from one State (State A) to land in another State (State B) for technical stops; third, the freedom of an aircraft from one State (State A) to put down passengers, mail, and cargo in another State (State B); fourth, the right of an aircraft from one State (State A) to take on passengers, mail, and cargo from another State (State B); fifth, the right of an aircraft from one State (State A) to put down and take on passengers, mail, and cargo from another State (State B) that comes from or are destined to a third State (State C); sixth, the right of an aircraft from one State (State A) to transport, via its territory, passengers, mail, and cargo moving between another State (State B) and a third State (State C); seventh, the right of an aircraft from one State (State A) to transport passengers, mail, and cargo from another State (State B) to a third State (State C) without needing to make contact with its territory; eighth, the right of an aircraft from one State (State A) to transport passengers, mail, and cargo between two points in

another State (State B) on an air service that originates or terminates in a third State (State C); ninth, the right of an aircraft from one State (State A) to transport passengers, mail, and cargo from and to another State (State B) on an air service performed entirely within the territory of that other State (State B).

Of all these freedoms, the first two freedoms are recognized in the Chicago Convention (1944) in relation to the operation of “nonscheduled” air services, which term shall be defined below. Insofar as “scheduled” air services are concerned, no freedoms of the air are recognized in the Chicago Convention. Rather, two separate treaties attached to the Chicago Convention (1944) recognize some freedoms of the air in the context of “scheduled” air services: one treaty recognizes only the first two freedoms, whereas the other treaty recognizes the first five. The sixth, seventh, eighth, and ninth freedoms are not officially recognized in either the Chicago Convention or other treaties.

II. Contextualizing the Freedoms A distinction must be made between the “freedoms” of the air and the “freedom” of the air. Whereas the former refers to a set of operational and commercial aviation rights, the latter refers to the concept of the free accessibility of airspace. This latter concept, which was proposed in the early 1900s by those who foresaw the major benefits of aviation, was not successfully adopted in law (Correia [2019] pp. 4–14). On the contrary, it was rejected by both the Convention Relating to the Regulation of Aerial Navigation of 1919 (the Paris Convention) and its successor Chicago Convention. According to the first article of both the Paris Convention and the Chicago Convention, the airspace overlying the territory (land or sea) of a State is under the complete and exclusive sovereignty of that State. Therefore, the airspace overlying the territory of any given State is de jure closed for, and not freely accessible by, every single other (Mendes de Leon [2017] p. 9). The International Court of Justice (the ICJ) and the Court of Justice of the European Union (the CJEU) have each explained that the first article of the Chicago Convention

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264  elgar concise encyclopedia of aviation law reproduces and embodies an established tenet of customary international law (Military and Paramilitary Activities in and Against Nicaragua [1986] para. 212; Case C-366/10 [2011] paras. 103–104). Notwithstanding the general rule of the de jure closure of airspace, there exist instances where airspace is freely accessible. The foremost example of such freedom of accessibility is in the case of the airspace overlying the high seas, that is, the airspace overlying those areas of sea that do not fall under the sovereignty of any State. While the airspace over the territory (land or sea) of a State is under the sovereignty of that State, the airspace over the high seas is, identical to the high seas themselves, not under the sovereignty of any State. Over the high seas, therefore, the freedom of the air is the rule, not the exception. The Chicago Convention, in fact, provides, in Article 12, that, over the high seas, the rules in force over the high seas are those established under the Convention. The CJEU has explained that this principle of freedom of flight over the high seas is regarded as embodying the current state of customary international air law and has been codified in Article 87(1) of the United Nations Convention on the Law of the Sea of 1982 (Case C-366/10 [2011] paras. 103–104). Setting aside this exception to the rule, the standard position in law is that the airspace of a State is closed to every other.

III. Analyzing the Freedoms The freedoms of the air are a set of nine aviation rights that can be split into two categories: operational and commercial. Whereas the first two freedoms are operational rights, meaning that they deal with how aircraft may be operated over an agreed route or routes while operating international air services, the remaining seven pertain to commercial rights, meaning that they deal with international carriage by aircraft over an authorized route or parts thereof (ICAO [2018] Part IV, Section 2.4). 1. The Operational Freedoms The first freedom of the air is the freedom of overflight. This is the right of an aircraft from one State (State A) to fly through the airspace of another State (State B) without landing. The second freedom is the freedom of roberto cassar

technical stops. This is the right of an aircraft from one State (State A) to land in another State (State B) for non-traffic purposes, such as refueling, repairs, or emergencies. These two freedoms are directly guaranteed by Article 5 of the Chicago Convention (1944) but only with respect to “non-scheduled” international air services. “Scheduled air services” are defined by the International Civil Aviation Organization as a series of flights that possesses all the following characteristics: (1) it passes through the airspace over the territory of more than one State, (2) it is performed by aircraft for the transport of passengers, mail, or cargo for remuneration in such a manner that each flight is open to use by members of the public, and (3) it is operated so as to serve traffic between the same two or more points either (a) according to a published timetable, or (b) with flights so regular or frequent that they constitute a recognizable systematic series (ICAO [2008] pp. 1–11). While the first two freedoms are guaranteed by the Chicago Convention (1944) insofar as non-scheduled air services are concerned, these two freedoms are not guaranteed by the Chicago Convention insofar as scheduled air services are concerned. Rather, these two freedoms are guaranteed in an ancillary accord to the Chicago Convention, which is the International Air Services Transit Agreement of 1944. In October 2022, this treaty has 133 Member States and, in its Article 1, it provides for the multilateral exchange of the first and second freedoms of the air. 2. The Commercial Freedoms The third, fourth, fifth, sixth, seventh, eighth, and ninth freedoms are all commercial rights. This is because they concern traffic rights in the context of scheduled air services. A “traffic right” is a right to access the market of a State and, in practice, it is the right to transport passengers, mail, and cargo (i.e., “traffic”) from and to the territory of a State or combination of States by means of an aircraft that is registered either in one of those States or in another. The necessity of commercial aviation rights in the context of scheduled air services emanates not only from the standard legal rule of the closure of airspace but also from Article 6 of the Chicago Convention, which specifically stipulates that no “scheduled”

freedoms of the air  265 international air service may be operated over or into the territory of a contracting State except with its special permission. This requirement for “special permission” has led to a proliferation of bilateral air services agreements (“ASAs”) (Dempsey [2017] p. 5), that is, international trade agreements by virtue of which governmental authorities of two States negotiate and regulate the performance of air services, such as traffic rights, rates, and frequency, between their respective territories (Haanappel [1980] p. 241). ASAs are not merely the result of the “special permission” that a State must give in accordance with Article 6 of the Chicago Convention, but they are its embodiment. This “special permission” is thus another exception to the standard rule of the de jure closure of airspace. The third and fourth freedoms can be seen as two sides of the same coin. The third freedom is the right of an aircraft from one State (State A) to put down traffic from its territory in the territory of the State granting the right (State B). The fourth freedom is the right of an aircraft from one State (State A) to take on traffic from the territory of the State granting the right (State B) to its territory. The fifth freedom is the right of an aircraft from one State (State A) to put down and take on traffic from the territory of the State granting the right (State B), which traffic comes from or is destined to a third State (State C). In the context of the fifth freedom, therefore, State B is the “stop” at which the aircraft from State A puts down and takes on traffic, and proceeds to State C. The third, fourth, and fifth freedoms are not directly guaranteed by the Chicago Convention, neither insofar as non-schedule air services are concerned nor insofar as scheduled air services are concerned. Similar to the first two freedoms, the third, fourth, and fifth freedoms are guaranteed as a consequence of another ancillary accord to the Chicago Convention. This ancillary accord is the International Air Transport Agreement of 1944, which has only 11 Member States and which, under Article 1, provides for the multilateral exchange of the not just the third, fourth, and fifth freedoms, but also the first two. This legal instrument, however, is not very successful, the most likely reason being the fact that States wish to exchange commercial aviation rights only in the context of specific and bespoke (mostly bilateral) ASAs. The sixth freedom is the right of an aircraft from one State (State A) to transport, via

its territory, traffic moving between two other States (States B and C); in this scenario, State A can be considered as the “hub” and States B and C as the “spokes” to and from which scheduled air services are provided. The seventh freedom is the right of an aircraft from one State (State A) to transport traffic from the State granting the right (State B) to a third State (State C) without the aircraft needing to make contact with its home State (State A). The eighth freedom is the right of an aircraft from one State (State A) to transport cabotage traffic between one point in the territory of the State granting the right (State B) and another point in that same State (State B) on an air service that originates or terminates in a State other than that (any State other than State B). The ninth freedom is the right of an aircraft from one State (State A) to transport cabotage traffic of the State granting the right (State B) on a service performed entirely within the territory of the State granting the right (State B); in this scenario, the aircraft from State A carries traffic from one point in State B to another point in State B on an air service that begins and ends entirely within State B. 3. The Exchange of the Freedoms by States As already indicated, the freedoms of the air are exchanged between States, namely, through mostly bilateral ASAs between States, who may also conclude such agreements on a regional basis. A practical example of a multilateral ASA concerns the Agreement on air transport concluded between the United State and the European Union and its Member States, which ASA entered into force on 29 June 2020, even though to had been provisionally applied since 30 March 2008 (EUR-Lex [2020]). This ASA replaces all existing bilateral agreements between the United States and the Member States of the EU (Hunnicutt [2011] p. 676) and allows EU and US air carriers to, inter alia: ●

●

●

operate third and fourth freedom flights between the EU and the United States; operate fifth freedom flights beyond the EU and the United States without restrictions on the number of flights or type of aircraft; operate unlimited seventh freedom cargo services; and roberto cassar

266  elgar concise encyclopedia of aviation law ●

operate limited seventh freedom flights for passenger services between the United States and any point in the European Common Aviation Area.

Bilateral and other ASAs are not the only method of exchanging the freedoms of the air. Multilateral ASAs are another such method. A practical example of a multilateral ASA is that of the Association of Southeast Asian Nations (ASEAN), which is composed of Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam. ASEAN signed a Multilateral Agreement on Air Services in 2009, which multilateral ASA liberalizes third, fourth, and fifth airspace freedoms for air carriers based in the ASEAN Member States. In addition to multilateral ASAs, there is also regional legislation that allows for the exchange of the freedoms of the air, as exemplified by the EU. Following a process of liberalization of the internal air transport market that started in 1987 (Correia [2014] pp. 63–64), EU law has liberalized air services for “EU air carriers” as defined by EU Regulation 1008/2008. Subject to environmental restrictions and availability of capacity at EU/EEA airports, these EU air carriers are allowed to operate all freedoms of the air between airports located in any EU or EEA State.

IV. Concluding Remarks The freedoms of the air are a legal necessity as the standard position in air law is that the airspace of one State is closed to every other State. The freedoms of the air cement an industrial stimulus as, effectively, they allow aviation to be the international and commercial force that it is. Though it is probable that the international rule of de jure closure of airspace shall never change, it is likewise probable that, thanks to the freedoms of the air, aviation shall remain a global industry. Roberto Cassar

Note 1.

This entry has been written in the personal and independent capacity of the author.

roberto cassar

References ASEAN Multilateral Agreement on Air Services (signed 20 May 2009; entered into force 1 January 2015). Case C-366/10 – Air Transport Association of America and Others v Secretary of State for Energy and Climate Change (2011). Charles A. Hunnicutt, ‘U.S.–EU Second Stage Air Transport Agreement: Toward an Open Aviation Area’ (2011) 39 Georgia Journal of International and Comparative Law 663. Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295. Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397. Convention relating to the Regulation of Aerial Navigation (adopted 13 October 1919, entered into force 1 June 1922) 297 LNTS 173. Council Regulation (EEC) 2407/92 on licensing of air carriers [1992] OJ L240. Council Regulation (EEC) 2408/92 on access of Community air carriers to intraCommunity air routes [1992] OJ L240. Council Regulation (EEC) 2409/92 on fares and rates for air services [1992] OJ L240. Council Regulation (EC) 1008/2008 on common rules for the operation of air services in the Community (Recast) [2008] OJ L293/3. EUR-Lex, EU-US Aviation Agreements (13 August 2020) https://eur​-lex​.europa​.eu​/ EN​/ legal​-content​/summary​/eu​-us​-aviation​ -agreements​.html​#keyterm​_E0002. Guillaume Burghouwt, Pablo Mendes de Leon and Jaap de Wit, ‘EU Air Transport Liberalisation: Process, Impacts and Future Considerations’ OECD Discussion Paper No. 2015-04 (2015). ICAO ‘Policy and Guidance Material on the Economic Regulation of International Air Transport’ (3rd ed, 2008) Doc 9587. ICAO ‘Manual on the Regulation of International Air Transport’ (3rd ed, 2018) Doc 9626. International Air Services Transit Agreement (adopted 7 December 1944, entered into force 20 January 1945) 84 UNTS 252. International Air Transport Agreement (adopted 7 December 1944, entered into

freedoms of the air  267 force 8 February 1945) US Department of State, Publication 2282, Conference Series 64, pages 91–95 (1945). Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), I.C.J. Rep. 14, 111 (1986). Pablo Mendes de Leon, Introduction to Air Law (10th ed, Kluwer 2017). Paul S. Dempsey, ‘Introduction: Multilateral Conventions and Customary International Law’ in Paul S. Dempsey and Ram S. Jakhu (eds), Routledge Handbook of Public Aviation Law (Routledge 2017).

Peter P.C. Haanappel, ‘Bilateral Air Transport Agreements – 1919–1980’ (1980) 5 MJIL 241 Vincent Correia, in Pablo Mendes de Leon and Niall Buissing (eds), Behind and Beyond the Chicago Convention: The Evolution of Aerial Sovereignty (Wolters Kluwer 2019). Vincent Correia, L’Union Européenne et le Droit International de l’Aviation Civile (Bruylant 2014).

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75. Functional Airspace Block I. Definition Functional airspace blocks (FABs) are a key component of the European Union (EU) Single European Sky (SES) initiative (de Wit, Fukken, Riemens, and Deleu [2011]; EUROCONTROL [2004]; Jarzembowski [2011]; Lawless [2020]): the concept was introduced with the SES I package and further regulated by the SES II package. A functional airspace block (FAB) is defined by the SES Framework Regulation as “an airspace block based on operational requirements and established regardless of State boundaries, where the provision of air navigation services and related functions are performance-driven and optimised with a view to introducing, in each functional airspace block, enhanced cooperation among air navigation service providers or, where appropriate, an integrated provider” (Article 2, No. 25, of the Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the Single European Sky, the “Framework Regulation,” as modified by the Regulation (EC) No. 1070/2009 of the European Parliament and of the Council of 21 October 2009). Therefore, a FAB consists in a volume of airspace over one or more national territory/ies, including the territorial sea/s, within Northern, Western, Central, Central-Eastern, and Southern Europe, theoretically not necessarily overlapping the borders set between States or regions for political or administrative purposes and established for granting more efficient, more environmentally friendly, and safer Air Traffic Management (ATM), according to homogeneous operational requirements, taking into consideration air traffic (de Wit, Fukken, Riemens, and Deleu [2011]; Schubert [“The Liability,” 2003]; Vaugeois [2013]). Airspace as a scarce resource and the increasing air traffic induced the EU Commission to reconsider and improve the organization of ATS among the EU Member States through a better integration of the European airspace, which was fragmented into non-uniform and non-efficient services

(Campos [2013]; Debyser [2022]; Defossez [2015]; Dempsey [2017]; Fox [2016]; Masutti [2020]; Motyka, Njoya [2020]; Trovò [2011]; on the situation of ATS in the 1990s, see EC Commission, 1996). According to Article 9a of Regulation (EC) No. 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of Air Navigation Services in the Single European Sky (the “Service Provision Regulation”), as modified by the Regulation (EC) No. 1070/2009 of the European Parliament and of the Council of 21 October 2009 amending Regulations (EC) No. 549/2004, (EC), No. 550/2004, (EC), No. 551/2004, and (EC) No. 552/2004 to improve the performance and sustainability of the European aviation system, Member States had to “take all necessary measures in order to ensure the implementation of functional airspace blocks” by 4th December 2012. The Article emphasizes also the need of an intense cooperation among the EU Member States “with a view to achieving the required capacity and efficiency of the air traffic management network within the single European sky and maintaining a high level of safety and contributing to the overall performance of the air transport system and a reduced environmental impact.” For this purpose, the participation of third countries is envisaged where relevant (Article 7 of the Framework Regulation and Article 9a.1 of the Service Provision Regulation). To achieve the above-mentioned targets, FABs should be created and operated as a continuum within a single seamless European Upper Flight Information Region (Communication from the Commission to the Council and the European Parliament on the implementation of the Single European Sky, 11 December 2001, COM/2001/0564 final, par. 3.2; Schubert “The Liability”, [2003]; Masutti [2019]; Trovò [2011]).

II. Previous Initiatives and First Projects Before the SES I package, in the second half of the 1990s, “The ATM Strategy for the Years 2000+” was launched by EUROCONTROL together with the European Civil Aviation Conference (ECAC) (EUROCONTROL, 1998) for introducing a uniform European ATM improved system

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functional airspace block  269 through standardization and interoperability among the existing systems (Trovò [2011]). The very first example of a single integrated management of the upper airspace in Europe is represented by the Maastricht Upper Area Control Centre (MUAC), which provides civil and military air navigation services in the upper airspace over Belgium, Luxembourg, the Netherlands, and northwestern Germany on behalf of the member States (Nava-Gaxiola, Barrado [2016]). The center is operated by EUROCONTROL, following the Agreement relating to the Provision and Operation of Air Traffic Services and Facilities by EUROCONTROL at the Maastricht UAC (the “Maastricht Agreement”), signed on 25 November 1986 and amended on 1 July 2022. Between the end of the 1990s and the early 2000s other ATM Cooperation systems were launched. FABs could be considered similar to upper controlled airspace areas like UAC, but, according to some early studies and reports, they should entail an even more ambitious integration (Eurocontrol Performance Review Commission, 2008) and “an effective interconnectivity” (Jarzembowski [2011]). Among these experiences for integrating air traffic services, it is worth mentioning the Central Europe Air Traffic Services (CEATS), established with an agreement signed on 27 June 1997 among the EUROCONTROL, Austria, Bosnia and Herzegovina, Croatia, Czech Republic, Hungary, Slovakia, Slovenia, and Northern Italy for implementing a single unified air traffic control system for the upper airspace over the State parties to the agreement, managing that upper airspace similarly to the Maastricht UAC, maintaining or upgrading safety levels and improving capacity and efficiency of the services. EUROCONTROL was entrusted with the operation of en route air traffic services and facilities, without prejudice to the sovereign powers of the States parties, that retained, in particular, legislative, regulatory, and organizational powers. The main flaws emerging from this project, according to some scholars, were delays in the actual implementation of CEATS and the increasing financial burdens for the State parties (Trovò [2011]). Another project was the Strategic Plan for a South East Europe Cooperation on Air Traffic Management (SEECAS) among Italy (Brindisi), Serbia and Montenegro, Albania, Macedonia, Bulgaria, Romania, Greece, and

Cyprus. A further experience was the Nordic Upper Airspace Centre (NUAC), established in 2000 in order to reorganize and improve the efficiency of ATS in the upper spaces of Denmark, Finland, Norway, and Sweden. The above-mentioned projects had little success (Trovò [2011]). In 2005 the BUL-ROM was established as ATM Cooperation among Bulgaria, Moldavia, Romania, and Turkey. With the memorandum of understanding signed on 10 August 2010 by Bulgaria and Romania, the BUL-ROM has been established as the Danube FAB. Following the SES package, in 2006 two initiatives for FABs were launched: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Romania, Serbia and Montenegro, and Macedonia launched the South East EuropeFunctional Airspace Block Approach (SEEFABA) (Matsoukis and Poulimenakos [2007]; Trovò [2011]). Two years later, the SEE-FABA was converted into the ISIS Programme, signed on 22 April 2008 by the Directors-General of Civil Aviation of Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Montenegro, Romania, Serbia, the Former Yugoslav Republic of Macedonia, the representative of the United Nations Mission in Kosovo under UNSCR 1244/99, the European Commission, and the Stability Pact for South Eastern Europe and Regional Cooperation Council with the purpose to support the extension of SES to SEE and to further the harmonization of ANS regulation among the participating countries and the coordination in their provision, along with the interconnection of the related infrastructures (Steiner, Mihetec and Božičević [2010]). The second 2006 initiative concerns the MOSAIC project, proposed by air traffic professional unions, that would have involved Belgium, France, Germany, Italy, the Netherlands, Luxembourg, Switzerland, and the Maastricht UAC (Trovò [2011]).

III. The Extent of FABs According to Article 1 of the Regulation (EC) No. 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organization and use of the airspace in the Single European Sky (the “Airspace Regulation”), SES’s scope is limited to EUR and AFI ICAO regions where Member States are responsible for the provision of air elena orrù

270  elgar concise encyclopedia of aviation law traffic services conforming with the Service Provision Regulation. However, under Article 1.3 of the Airspace Regulation, a Member State can include in a FAB other airspace under its responsibility within other regions established by the International Civil Aviation Organization (ICAO), provided that it informs the Commission and the other Member States. Furthermore, given the SES’s objective and FABs’ aims that were described in the previous paragraphs, Article 3.2 of the abovementioned Regulation provides that the European Upper Flight Information Region (EUIR) can include airspace of European third countries. Article 7 of the Framework Regulation, as modified by the Regulation (EC) No. 1070/2009, also calls the EU and its Member States to foster the cooperation with European third countries in order to extend SES to them.

IV. The Requirements and Procedure for Establishing a FAB Under Article 9a of the Service Provision Regulation, as modified by the Reg. (EC) No. 1070/2009, a FAB can be established only by mutual agreement among all the participating Member States and, where the case warrants, third countries that are responsible for any part of the airspace there included. Para 2 of the same Article sets the requirements that each FAB must possess. The agreement must also provide for the procedures in which a block can be modified or any of the Member States participating in it can withdraw and the pertaining transitional regime. Article 9b of the Service Provision Regulation enabled the Commission to appoint a Coordinator of the functional airspace blocks system in order to smooth their establishment until the signature of the last FAB agreement and, however, not later than the 4 December 2012. In 2010 this office was assigned to Georg Jazerbomwsky (Jarzembowski [2011]). The Coordinator would perform its task where so demanded by all the Member States and third countries participating in a prospective FAB under a mandate granted to him or her by them. The Coordinator has a duty to be impartial toward the Member States, the third countries, the Commission, elena orrù

and the stakeholders and of non-disclosing the information obtained during its remit, except when so authorized. He or she reports on its activities, including the negotiations and their results, to the Commission, to the Single Sky Committee, and to the European Parliament every three months after his or her designation. The Commission, the European Aviation Safety Agency (EASA), the other Member States and interested parties must be notified by the Member States concerned by the prospective FAB in order to submit observations where the case warrants. Pursuant to Article 9a, para 9, of the Service Provision Regulation, the Commission enacted the Commission Regulation (EU) No. 176/2011 of 24 February 2011 on the information to be provided before the establishment and modification of a functional airspace block. The latter details the procedures for notifying the decision to establish a prospective FAB or to modify an existing one and the information to be provided to this end, together with those for the submission of observations by the parties concerned. In particular, under Regulation (EU) No. 176/2011, a FAB should be considered modified where the changes concern its defined dimensions and will therefore have a considerable impact on it or on the neighboring FABs (eighth whereas and Article 5). Following the considerations above, a bottom-up approach was therefore preferred, with the Member States and third countries retaining their own sovereignty over their respective airspace and taking actions for establishing FABs within the deadline set by the SES II Framework (Jarzembowski [2011]). However, the Commission has the power to determine that the proposed or modified FAB complies with the relevant requirements and presents its results to the Single Sky Committee for discussion. If the former deems that one or more FABs do not fulfill the requirements, the Service Provision Regulation requires the Commission and the Member State/s concerned to discuss the matter for identifying the measures necessary to rectify the situation. The agreements and the declarations are notified to the Commission for their publication in the Official Journal of the European Union, where it is also specified the date of entry into force of the relevant decision.

functional airspace block  271 In case of difficulties between two or more Member States concerning a cross-border FAB involving airspace under their responsibility, they can jointly submit the matter to the Single Sky Committee’s opinion, which has to be taken into consideration by the Member States concerned in order to solve the problems.

V. The Designation of ANS Providers and the Role of Supervisory Authorities The responsibility of ensuring the provision of adequate Air Navigation Services and their safe and efficient operation, of appropriate airport capacity planning, and of the supervision over their providers still lies with each Member State, through the respective relevant authorities (Article 2, paras 1 and 2, of the Service Provision Regulation; Jarzembowski [2011]). With regard to the first of the abovementioned aspects, the Member States have to designate an air traffic service provider, duly holding a valid certificate in the Community, for the provision of Air Navigation Services on an exclusive basis. In case of FABs extending across the airspace under the responsibility of different Member States, they have to jointly designate one or more air traffic service providers (Article 8, paragraphs 1 and 5). As for supervising tasks, according to Article 2.3 of the Service Provision Regulation, supervision over the Air Navigation Service Providers is regulated by an agreement among the Member States having the responsibility over the airspace included in a FAB. The agreement has to include the mutual recognition of these tasks and their results (para 4). The sixth paragraph of the same Article enables national supervisory authorities to conclude agreements among them on the division of supervising responsibilities. Moreover, within the performance scheme adopted pursuant to Article 11 of the Framework Regulation, Member States must adopt plans for functional airspace blocks. These plans are drafted by the national supervisory authorities following consultations with Air Navigation Service Providers, airspace users’ representatives, and, where relevant, airport operators and airport coordinators, and they must include compulsory performance targets that must be in general consistent with the Community-wide ones and pursue the same results (Jarzembowski

[2011]). The plans must also include incentive schemes. Their conformity with the EU-wide performance targets is assessed by the Commission following the procedure laid down in Article 6 of the same regulation. Where the EU institution deems that one or more performance targets do not satisfy the assessment criteria, it can address a recommendation to the relevant national supervisory authorities asking for a revision. The Member State/s concerned have to adopt the revised performance targets and appropriate measures to be notified to the Commission in due time. Nonetheless, where the revised performance targets and the related measures are still not adequate according to the Commission, it can decide either that the Member States concerned must adopt corrective measures or revise the Communitywide performance targets. Moreover, coherently with FABs’ objectives, within the charging scheme to be established under Chapter III of Regulation No. 550/2004, Member States participating in a FAB are asked to “make reasonable efforts to agree on common principles for charging policy” (Article 15, para 2, c). The above-mentioned provisions of Regulations No. 549/2004 and No. 550/2004 are currently implemented by the Commission Implementing Regulation (EU) 2019/317 of 11 February 2019 laying down a performance and charging scheme in the Single European Sky and repealing Implementing Regulations (EU) No. 390/2013 and (EU) No. 391/2013.

VI. Current FABs Currently, nine FABs have been established, after long processes involving different legal instruments and solutions (de Wit, Fukken, Riemens, and Deleu [2011]); Fox [2016]; Motyka, Njoya [2020]; Schubert [“The Financing”, 2003] 1. the United Kingdom-Ireland FAB (UK-Ireland FAB), among the United Kingdom of Great Britain and Northern Ireland and the Republic of Ireland, established in 2008; 2. the Danish-Swedish FAB (DK-SE FAB), between the Kingdoms of Denmark and of Sweden, since 2009; 3. the FAB of Central Europe (FAB CE), among the Republics of Austria, Bosnia elena orrù

272  elgar concise encyclopedia of aviation law and Herzegovina, Croatia, Czechia, Hungary, Slovakia, and Slovenia: the agreement and the ANSP Cooperation were signed on 5 May 2010; 4. the FAB of Europe Central (FABEC), among the Kingdom of Belgium, the French Republic, the Federal Republic of Germany, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, and the Swiss Confederation, since 2011; 5. the Danube FAB, between the Republics of Bulgaria and Romania, whose agreement was signed on 12 December 2011; 6. the Baltic FAB, between the Republics of Lithuania and Poland, whose agreement was signed in 2012; 7. the North European FAB (NEFAB), among the Republics of Estonia, Finland, Iceland, Latvia, and the Kingdom of Norway, formally established with an agreement signed on 4 June 2012; 8. the BLUE MED FAB, among the Republics of Cyprus, Greece, Italy, and Malta, established with an agreement signed on 12 October 2012. On 27 April 2020 a Memorandum of Cooperation was signed between the Member States of this FAB and the Republic of North Macedonia for a prospective adhesion of the latter to the functional airspace block; 9. the South-West FAB, between the Republic of Portugal and the Kingdom of Spain, whose final agreement was signed in May 2013.

VII. FABs and ICAO’s role: The “Homogeneous ATM Areas” One of ICAO’s goals is to implement an interoperable, standardized, and harmonized global Air Traffic Management system in order to improve the efficiency, safety and security, and environmental sustainability of Air Navigation Services, overcoming the differences among the different Air Traffic Management systems, mostly limited to the national or regional level (Trovò [2011]). Under ICAO Docs No. 9750 and 9854, homogeneous ATM areas can be established. They consist of “an airspace with a common air traffic management interest, based on similar characteristics of traffic density, complexity, air navigation system infrastructure requirements or other specified considerations elena orrù

wherein a common detailed plan will foster the implementation of interoperable CNS/ATM systems.” With regard to ICAO’s global air navigation system, FABs fall within the agreements allowed by the Chicago Convention (Convention on international civil aviation, signed at Chicago on 7 December 1944), requiring registering with the Council arrangements among contracting States that are not inconsistent with the Convention itself (Article 83). In particular, they are subject to the provisions and procedures laid down by Annex 11 on “Air Traffic Services.” Where the establishment of a FAB implies changes to ICAO Flight Information Region (“FIR”) boundaries or to the facilities and services provided within them, it is subject to ICAO air navigation planning process and the procedure for amendment of ICAO air navigation plans (11th and 12th whereas of Regulation No 176/2011).

VIII. The Regime of Liability in Cross-border ATM Services One of the main issues emphasized by scholars and experts is the regime of liability for the provision of Air Navigation Services for FABs extending over the airspace subject to the sovereignty of more States, when the activity is not limited to the national boundaries of a specific State where the provider itself is established. A uniform regime of liability of Air Navigation Service Providers in these cases is still lacking. As a consequence of the wide range of existing ANS providers as of their nature, such as governmental agencies, private corporations, and public intergovernmental agency, their liability regime could considerably vary. Two main doctrines have been envisaged: the territorial State doctrine and the effective service provider doctrine (Schubert [2011]). Well-drafted agreements also on these matters under Articles 2 and 8 of the Service Provision Regulation hence play a crucial role. Moreover, given the possibility for ANS providers to conclude arrangements for availing themselves of the services of another provider, under Article 10 of the same Regulation, while retaining the responsibility for the services entrusted to them

functional airspace block  273 by the relevant State/s, some scholars have suggested to specifically establish in these agreements the right of the sub-contractor to be relieved by the designated service provider for any compensation paid to third parties (Schubert [2011]). Elena Orrù

Paul Stephen Dempsey, Public International Air Law (2nd edn, McGill University, Institute of Air and Space Law, 2017). Bianca de Wit, Jeroen Fukken, Paul Riemens and Raymond Deleu, ‘FABEC: Structure Follows Performance or Performance Follows Structure?’. Pablo Mendes de Leon and Daniel Calleja Crespo (eds), Achieving the Single European Sky: Goals References and Challenges, 17–31 (Kluwer Law Agreement Relating to the Provision and International, 2011). Operation of Air Traffic Services and Eurocontrol, ‘ATM Strategy For 2000+’, vol. Facilities by EUROCONTROL at the 1 and 2 (1998). Maastricht Upper Area Control Centre of Eurocontrol, ‘Operational Concept Document 25 November 1986 and amended on 1 July (OCD)’, Vol. 1 (edn 2.1, 2004). 2022. Eurocontrol Performance Review Javier Campos, ‘Air Transport’. Matthias Commission, ‘Evaluation of Functional Finger and Torben Holvad (eds) Regulating Airspace Block (FAB) Initiatives and Their Air Transport in Europe, 36–60 (Edward Contribution to Performance Improvement’ Elgar Publishing, 2013). (October 2008). Commission, ‘Building the Single European FABEC Performance Management Group, Sky through Functional Airspace Blocks: ‘ATM in Europe – It’s all About A mid-term report’, Belgium 2007. Performance’ (2014) . a performance and charging scheme in Sarah Fox, ‘Single European Skies: Functional the single European sky and repealing Airspace Blocks – Delays and Responses’, Implementing Regulations (EU) No 41 Air and Space Law 201–227 (2016). 390/2013 and (EU) No 391/2013. ICAO, ‘Annex 11 – Air Traffic Services’ (15th Commission Regulation (EU) No 176/2011 edn, 2018). of 24 February 2011 on the information to ICAO, ‘Global Air Navigation Plan for CNS/ be provided before the establishment and ATM Systems’, Doc No 9750 (5th edn, modification of a functional airspace block. 2016). Commission White Paper ‘Air Traffic ICAO, ‘Global Air Traffic Management Management. Freeing Europe’s airspace’ Operational Concept’, Doc No 9854 (1st (COM(96) 57 final, 6 March 1996). edn, 2005). Communication from the Commission to the Georg Jarzembowski, ‘The Coordinator for Council and the European Parliament on the Functional Airspace Blocks System: the implementation of the Single European The Task and the Report’. Pablo Mendes Sky, 11 December 2001 (COM/2001/0564 de Leon and Daniel Calleja Crespo (eds), final). Achieving the Single European Sky: Goals Convention on International Civil Aviation, and Challenges, 179–187 (Kluwer Law signed at Chicago on 7 December 1944 International, 2011). (The Chicago Convention). Christopher Lawless, ‘Assembling Airspace: Ariane Debyser, ‘Air Transport: Single The Single European Sky and Contested European Sky’ (Fact Sheets on the Transnationalities of European Air Traffic European Union, 03-2022) https://www​ Management’, 50(4) Social Studies of .europarl​ .europa​ .eu​ / factsheets​ /en​ /sheet​ Science 680–704 (2020). /133​ /air​ - transport​ - single​ - european​ - sky Anna Masutti, ‘Sovereignty Pertaining to accessed 3 September 2022. Air Traffic Management’. Pablo Mendes Delphine Defossez, ‘Towards an Optimized de Leon and Niall Buissing (eds), Behind Sharing of the ANS Liability Risk in the and Beyond the Chicago Convention: The Single European Sky’, 40 Annals Air & Evolution of Aerial Sovereignty, 112–124 Space Law 373 (2015). (Kluwer Law International, 2019).

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274  elgar concise encyclopedia of aviation law Anna Masutti, Il diritto aeronautico (Giappichelli 2020). Evangelos Matsoukis and Sarantis Poulimenakos, ‘Air Traffic Management in the South East European Countries. Current Situation and Prospects’, 37 European Transport 16–34 (2007). Anna Motyka and Eric Tchouamou Njoya, ‘Single European Sky: The Progress So Far’, 12 J Aerosp Tecnol Manag e3920 (2020) accessed 24 June 2022. Cesar A. Nava-Gaxiola and Cristina Barrado, ‘Performance Measures of the SESAR Southwest Functional Airspace Block’, 50 Journal of Air Transport Management 21–29 (2016). Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky. Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky. Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky. Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 21 October 2009 amending Regulations (EC) No 549/2004, (EC) No 550/2004,

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(EC) No 551/2004 and (EC) No 552/2004 in order to improve the performance and sustainability of the European aviation system. Francis Schubert, ‘The Financing of Cross Border Air Traffic Services – A Legal Perspective’, 28 Annals Air & Space Law 121 (2003). Francis Schubert, ‘The Liability of Air Navigation Services in the Single European Sky’, 28 Annals Air & Space Law 57 (2003). Francis Schubert, ‘The Liability of Air Navigation Services Providers: Some Lessons from the Single European Sky’. Pablo Mendes de Leon and Daniel Calleja Crespo (eds), Achieving the Single European Sky: Goals and Challenges, 51– 63 (Kluwer Law International, 2011). Sanja Steiner, Tomislav Mihetec, and Ana Božičević, ‘Prospects of Air Traffic Management in South Eastern Europe’, 22 Promet – Traffic & Transportation 293 (2010). Laura Trovò, ‘Il processo d’integrazione degli spazi aerei europei: dalla riorganizzazione in blocchi funzionali verso la globalizzazione dell’Air Traffic Management (ATM)’, IX Rivista di Diritto dell’Economia, dei Trasporti e dell’Ambiente – Giureta 439– 462 (2011). Mathieu Vaugeois, ‘Le Ciel Unique Europeen: Fonctionnement et Mise en Œuvre’, 38 Annals Air & Space Law 157 (2013).

76. General Aviation The term “general aviation” does not mean aviation generally: it is a specific sector of the aviation industry and, in fact by hours flown, the largest. The majority of the world’s air traffic falls into the category of general aviation, and most of the world’s airports serve general aviation exclusively. According to the International Council of Aircraft Owner and Pilot Associations (IAOPA), there are 40 million flight hours per year flown under the banner of general aviation. It is certainly not the case that “general aviation” is equivalent to private aviation: roughly three-quarters of these flight hours are occupied with flight instruction, business travel, agricultural application, emergency medical services, and other activities that are broadly commercial. Approximately 350,000 aircraft and 700,000 pilots are involved in these activities worldwide (by contrast, roughly 60,000 aircraft and 400,000 pilots are employed in commercial air transportation).

general aviation by what it is not (CAT or aerial work). However, for statistical purposes ICAO uses a definition of general aviation that includes aerial work and has proposed officially extending the definition of general aviation to include aerial work. This would reflect common market usage, which tends to refer to “general aviation” as all aircraft operations other than commercial air transport (which is principally, of course, scheduled airline operations). Whereas the narrow ICAO definition of “general aviation” tends to represent the private transport and recreational components of aviation, the term “general aviation” in market usage is wider and in particular in frequent market usage can include both commercial and non-commercial activities. This tends to be reflected in aviation authority regulations, which can therefore diverge somewhat from the ICAO definition. The International Council of Aircraft Owner and Pilot Associations (IAOPA) refers to the category as general aviation/aerial work (GA/AW). Their definition of general aviation includes: ●

ICAO / IAOPA Definitions The International Civil Aviation Organization (ICAO) defines civil aviation aircraft operations in three categories: general aviation (GA), aerial work (AW), and commercial air transport (CAT). These are defined as:

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1. commercial air transport operation: An aircraft operation involving the transport of passengers, cargo, or mail for remuneration or hire; 2. aerial work: An aircraft operation in which an aircraft is used for specialized services, such as agriculture, construction, photography, surveying, observation and patrol, search and rescue, aerial advertisement, etc; 3. general aviation operation: An aircraft operation other than a commercial air transport operation or an aerial work operation.

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Partly because of the wide diversity of aviation activities that can be encompassed by the term, the ICAO definition therefore defines

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corporate aviation: company own-use flight operations; fractional ownership operations: aircraft operated by a specialized company on behalf of two or more co-owners; business aviation (or travel): self-flown for business purposes; personal/private travel: travel for personal reasons/personal transport; air tourism: self-flown incoming/outgoing tourism; recreational flying: powered/powerless leisure flying activities; air sports: aerobatics, air races, competitions, rallies, etc.

IAOPA’s definition of aerial work includes agricultural flights, including crop dusting; banner towing; aerial firefighting; medical evacuation; pilot training; search and rescue; sight-seeing flights; skydiving flights; and organ transplant transport flights.

EASA Regulations Regarding the European Union, the European Union Aviation Safety Agency (EASA) recognizes four categories of operations, based

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276  elgar concise encyclopedia of aviation law on the commerciality of the operations and the complexity of the aircraft operated. Commercial operation means “any operation of an aircraft, in return for remuneration or other valuable consideration, which is available to the public or, when not made available to the public, which is performed under a contract between an operator and a customer, where the latter has no control over the operator.” The aforementioned four types of operation are:

reflective of the type of aircraft involved in general aviation, the number of passengers capable of being carried on these aircraft, the nature of the operations involved, and the large-scale usage of secondary airports. The differing EASA rules therefore consider the principle of proportionality and the need to have different safety levels. The safety levels were based on a risk hierarchy, and the rules for non-commercial operations were developed to achieve the following objectives: ●

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Commercial Air Transport (CAT); Non-Commercial Operations with Complex Aircraft (NCC); Non-Commercial Operations with Aircraft Other than Complex (NCO); Special Operations (SPO).

Meaning of “Complex Motor-powered Aircraft” The term “complex motor-powered aircraft” is defined in Regulation (EU) 2018/1139 as follows: (i) an aeroplane: ● with a maximum certificated take-off mass exceeding 5700 kg; or ● certificated for a maximum passenger seating configuration of more than nineteen; or ● certificated for operation with a minimum crew of at least two pilots; or ● equipped with (a) turbojet engine(s) or more than one turboprop engine; or (ii) a helicopter certificated: ● for a maximum take-off mass exceeding 3175 kg; or ● for a maximum passenger seating configuration of more than nine; or ● for operation with a minimum crew of at least two pilots; or (iii) a tilt rotor aircraft. Safety Objective Similar to the regulatory regime in many countries, the regulatory regime in the European Union therefore recognizes that the safety risk of general aviation operations is different from commercial air transport operations (in particular by way of contrast with scheduled airline operations, which require the highest levels of safe operation). This is mark bisset

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to maintain a proportionate level of safety depending on the complexity of the aircraft; to guarantee sufficient flexibility and efficiency for operators and authorities; to be compliant with the ICAO Standards and Recommended Practices (SARPs) of Annex 6 Part II and Part III Sections III as far as feasible; to ensure proportionate rules between NCO and NCC operations; and to be consistent with the rules of the other Annexes to the AIR OPS Regulation.

The objective of regulation is to “promote high standards of safety in all aspects of aviation.” Efforts focus on ensuring appropriate standards of airworthiness, pilot licensing, the rules for the movement of aircraft, and equipment to be carried. Part-NCC EASA Air Operations Regulation (EU) No 965/2012 Part-NCC applies to non-commercial flights in complex motor-powered aircraft. Part-NCC requires each operator to adhere to the same essential requirements as commercial air transport operators, but the rules are proportionate – instead of holding an Air Operator Certificate (AOC), operators must submit a declaration to their regulatory authority about their operation. Part-NCC applies to operators of complex motor-powered aircraft flying noncommercial flights: ●

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with an aircraft that is registered in an EU Member State, wherever the operator is established or residing; or with an aircraft that is registered in a non-Member State but where the operator is established or residing in an EU Member State.

general aviation  277 Part-NCO EASA Air Operations Regulation (EU) No 965/2012 Annex VII, Part-NCO, applies to non-commercial flights in other than complex motor-powered EASA aircraft. Specialized Operations (SPO) Under EASA regulations, SPO means any operation other than commercial air transport where the aircraft is used for specialized activities, such as agriculture, construction, photography, surveying, observation, and patrol and aerial advertisement. Specialized operations are governed by Commission Regulation (EU) No 965/2012 on air operations. They have been introduced into the EU set of harmonized rules through Regulation (EU) No 379/2014 that amends Regulation (EU) No 965/2012 on air operations by complementing it with Part-SPO.

US Regulations General aviation is particularly strong in North America, with over 6,300 airports available for public use by general aviation aircraft (around 5,300 airports in the United States, and over 1,000 in Canada). In comparison, scheduled flights operate from around 560 airports in the United States. According to the US Aircraft Owners and Pilots Association, general aviation provides more than 1% of the US GDP, accounting for 1.3 million jobs in professional services and manufacturing. The rules relating to general aviation are set out in the relevant “parts” of the Federal Aviation Regulations, Titles 14 and 49 of the Code of Federal Regulations; the main relevant parts are: Part 25: Rules governing airworthiness standards; Part 61: Outlines requirements for obtaining licenses (also applies to small flight instructing schools); Part 91: General operating and flight rules (general aviation); Part 135: Rules for commuter and on-demand operations (i.e., corporate and government and all helicopter operations); Part 141: Rules for flight schools; Part 142: Rules for training centers. General operations and flight rules fall into the Part 91 category. Part 91 is the least

restrictive of the three parts of the FAR concerning aircraft operations, the others being Part 121 and Part 135. Part 91 concerns the general rules under which all aircraft operate unless trumped by more restrictive laws that apply to their operation. Part 135 sets out the regulations for commuter operations and on-demand operations (also known as charters) and applies to aircraft with 30 or fewer seats or a maximum payload capacity of 7,500 pounds, including commercial helicopter operations. Part 121 relates to scheduled airlines: the FAA’s definition of a scheduled operation is at least “5 round trips per week on at least one route between two or more points according to the published flight schedule.” Part 121 is the most restrictive of the three parts and is considered the highest commercial air travel safety standard. One of the most notable distinctions between parts 121 and 135 is the requirement for two pilots on a Part 121 operation compared with the allowance for one pilot on a Part 135 operation.

United Kingdom Organizations in the United Kingdom describe general aviation in less restrictive terms than the narrow ICAO definition, including elements of commercial aviation. The British Business and General Aviation Association defines it as “all aeroplane and helicopter flying except that performed by the major airlines and the Armed Services.” For the purposes of a strategic review of general aviation in the United Kingdom, the Civil Aviation Authority (CAA) defined the scope of general aviation as “a civil aircraft operation other than a commercial air transport flight operating to a schedule,” and considered it necessary to depart from the ICAO definition and include aerial work and minor CAT operations.

Business Aviation Business aviation is one of the most significant elements of general aviation. The International Business Aviation Council (IBAC) defines business aviation as “that sector of aviation which concerns the operation or use of aircraft by companies for the carriage of passengers or goods as an aid to the conduct of their business, flown for purposes generally considered not for public hire and piloted by mark bisset

278  elgar concise encyclopedia of aviation law individuals having, at the minimum, a valid commercial pilot license with an instrument rating.” Business aviation aircraft encompass a very wide range of aircraft types, generally characterized as very light jets, light jets, mid-size jets, super mid-size jets, large jets, long-range jets, and VIP airliners. There are three basic types of operators that own, manage, and operate business jets: Flight departments: Flight departments are corporate-owned operators that manage the aircraft of a specific company for usage by employees. In the United States, flightdepartment aircraft operate under FAR 91 operating rules. Charter companies: Charter operators own or manage private jets for multiple clients. In the United States, such aircraft may be operated under either FAR 91 as private operations for the business purposes of the owner, or under FAR 135 as commercial operations for the business purposes of a third party. In the European Union, any third‑party charter operations would be governed by the CAT rules. Fractional ownership: business aircraft owned by a consortium of companies or individuals. Under the ICAO definition discussed above, commercial business aviation (chartering of aircraft for reward) is excluded from the definition of “general aviation” and falls into the category of commercial air transport.

mark bisset

Under the European Union regulatory regime, business aviation falls into more than one category: this can be CAT operations for all commercial operations, NCC for all corporate operations, and even NCO for some specific airframes that are operated as corporate aircraft. In market parlance, however, the term “general aviation” is likely to encompass all business jet operations, whether commercial or non-commercial. The National Business Aviation Association (NBAA), for example, refers to “business aviation” as being “the use of any ‘general aviation’ aircraft for a business purpose.” The private jet aircraft industry was estimated at worth USD 29 billion in 2022 and is projected to grow to USD 38 billion in 2029. The United States has by far the largest business aviation market in the world, with about 22,000 business aircraft in operation. The European Business Aviation Association (EBAA) estimates that business aviation represents 8% of European aviation traffic; employs 374,000 people in Europe (directly and indirectly); generates 87 billion euros in economic output annually; and connects 1,400 European airports, of which 900 are connected by business aviation operators only. In this sector, the broker Jetcraft expects 12,261 pre-owned transactions worth USD 57 billion in the next five years, and over 600 new aircraft delivered every year. Mark Bisset

77. The Geneva Convention (1948) See entry: 21. Aircraft Financing (Finance and Operating Leasing)

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78. Global Navigation Satellite Systems for Aviation

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I. Introduction Global Navigation Satellite Systems (GNSSs) can be considered as a key element of today’s communications, navigation, and surveillance as well as Air Traffic Management systems. GNSS-based services provide a significant improvement in Air Navigation Services not only due to their global availability but also because of their comparatively low operational costs and their high degree of accuracy. GNSS widespread use in civil aviation is closely linked to continuous efforts of two international organizations: the International Civil Aviation Organization (ICAO) and the International Telecommunications Union (ITU). GNSS full potential for future aviation applications has by far not been reached yet. However, recent incidents of harmful Radio Frequency Interference (RFI) in several regions around the globe might pose a critical challenge to the GNSS wider proliferation as a primary means of air navigation.

II. GNSS Core Elements and Capabilities

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Thus far, four global core constellations, GPS (US), GLONASS (Russian Federation), Galileo (EU), and COMPASS/BeiDou (PRC), as well as regional constellations, QZSS (Japan) and IRNSS/NavIC (India), have been installed. They are complemented by three distinct types of augmentation systems: ●

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While specific use cases of GNSS in aviation may differ with regard to their technical complexity and number of components, common operation, and basic elements of the systems themselves can be outlined rather easily: a GNSS comprises a position and time determination system with global coverage including one or more satellite constellations, aircraft, and ground station receivers as well as system integrity-monitoring units, augmented as necessary to support the Required Navigation Performance for the intended operation. By continuously transmitting signals timed by precise atomic clocks on the spacecrafts, a global satellite constellation enables its users to determine their three-dimensional position, velocity, and time by measuring each signal’s arrival time. GNSS performance is assessed using four different criteria: accuracy, the difference between a receiver’s measured and real position, speed, and time;

integrity, a system’s capacity to provide a threshold of confidence and, in the event of an anomaly in the positioning data, an alarm; continuity, a system’s ability to function without interruption; availability, the percentage of time a signal fulfills the above-mentioned criteria.

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Satellite-Based Augmentation Systems (SBASs), mostly based on geostationary satellite constellations, at present WAAS (US), EGNOS (EU), MSAS (Japan), GAGAN (India), as well as under implementation SDCM (Russian Federation), SNAS/BDSBAS (PRC), SouthPAN (Australia and New Zealand), and several other constellations of commercial service providers, support GNSS users by providing detailed information on signal integrity and runtime delays as well as satellite clock and orbit corrections; Aircraft-Based Augmentation Systems (ABASs) enhance measurements obtained from GNSS, based on data available onboard the aircraft providing sufficient signal integrity for takeoff, en route, approach, and non-precision approach phases of flight; Ground-Based Augmentation Systems (GBASs) allow pilots to perform several types of approaches and landing operations without using Instrument Landing System (ILS) networks by providing augmentation information from a groundbased transmitter, typically installed with airport infrastructure.

III. GNSS Use in Aviation 1. Early Use and Developments In 1960 the first US research projects acknowledged GNSS as a clear technological advantage in the military aviation domain that enabled its users to change from pointto-point radio navigation via ground-based

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global navigation satellite systems for aviation  281 navigation aids (beacons) used since the 1940s to a more flexible and efficient area navigation relying on geographical coordinates, initially called Random Navigation (Nolan [2011]; Farnworth [2017]). However, even when the first satellite of the GPS constellation (originally named DNSS, then Navstar) was launched into space in 1978, access to the system remained limited to military operations only. It was just in the aftermath of the tragic loss of Korean Airlines flight 007 in 1983 in Soviet-prohibited airspace due to a navigational error as well as a forceful interception of the aircraft that former US president Ronald Reagan authorized the civil use of GPS on a global scale. Although access was granted only to a deliberately degraded performance of GPS, service still included better performance and coverage conditions than any existing conventional ground-based navigation aids before. First industry standards for supplemental GPS use in inflight navigation published from 1991 onward were followed by a refined offer in 1994. The US government committed itself in a letter from the US Federal Aviation Administration (FAA) to the International Civil Aviation Organization (ICAO) to make GPS – reaching its full operational capacity only one year earlier in 1993 – available on a continuous worldwide basis and free of direct user fees with a minimum of at least six years notice prior to termination. Three years later, in 1996, a similar offer made by the Russian Federation regarding its newly established system called GLONASS increased global availability and accessibility of GNSS services significantly. Both offers have been reiterated on various occasions. Mainly driven by sovereignty concerns linked to an overreliance on a foreign system, more and more States followed these examples and established their own GNSS (Kong [2019]). ICAO began to observe and support the integration of GNSS services into aviation at an early stage. While its Future Air Navigation System (FANS) Committee acknowledged the important and evolutionary role of GNSS for future communications, navigation, and surveillance (CNS) functions in its findings in the late 1980s (ICAO [1988]), ICAO’s subsequent work focused on the initiation of an agreement with GNSS-provider States concerning quality and duration of GNSS services, as its Legal Committee found no fundamental legal impediments to the use

of GNSS within the ICAO CNS/ATM concept (ICAO [1994]; Milde [2016]). In 1993, a newly established GNSS Panel was tasked with developing Standards and Recommended Practices (SARPs) in support of aeronautical applications. As GPS and GLONASS had initially not been designed with aviation safety in mind, performance requirements needed to be carefully assessed and finally augmented as necessary with the help of SBAS, ABAS, and GBAS. In the following years, ICAO’s efforts paved the way for wider implementation of GNSS by encouraging manufacturers to overcome their reluctance to new equipage costs, addressing challenges of technological diversity by initiating standardization and improving overall acceptance of GNSS by its Member States, particularly in respect of their concerns about sovereignty, immunity, and liability. This endeavor, described as one of the most complex and far-reaching projects ever undertaken by ICAO in the history of aviation (Weber [1999]; Kong [2019]), resulted in multiple ICAO Assembly Resolutions, most prominently ●

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Resolution A32-19, titled “Charter on the Rights and Obligations of States Relating to GNSS Services”; Resolution A32-20, titled “Development and Elaboration of an Appropriate Long-Term Legal Framework to Govern Implementation of GNSS”.

All these efforts were finally crowned with success in 1999 when SARPs, supporting GNSS as radio navigation aid, complementary to existing traditional navigation aids, were included in Annex 10 to the Chicago Convention and made applicable from 2001 onward. In light of the above, and convinced by the benefits that GNSS offered for international air navigation, ICAO’s 11th Air Navigation Conference finally decided to recommend a worldwide transition to GNSSbased air navigation (ICAO [2001]). 2. State of Play and Current Challenges At present, most international commercial flights are guided using information provided by GNSS. Due to the shift from sensor-based to Performance-Based Navigation (PBN), ensuring global standardization of RNAV

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282  elgar concise encyclopedia of aviation law and Required Navigation Performance (RNP) specifications, satellite-based navigation systems have become one of the main drivers toward a more precise and optimized use of airspace. All PBN navigation specifications are based on GNSS, either as one of the primary navigation infrastructure or as one element of their infrastructure (Nagle [2007]). In particular, this means that GNSS services can be used in all phases of flight, ranging from en route through precision approach within the coverage area. Consequently, the aircraft will be able to configure their routes more directly and make their flights as short as possible between the departure airports and destinations, ultimately improving airspace capacity and relieving congestion while reducing fuel consumption and pollution. The aviation community has embraced the use of GNSS not only due its high-performance global navigation capabilities, but also due to the system’s comparatively low operating costs and small size of its readily available receivers. Yet, one of the biggest challenges of GNSS use in aviation and its further proliferation as prospective primary means for air navigation remains its vulnerability to Radio Frequency Interference (RFI). The International Telecommunication Union (ITU), one of the world’s oldest international organizations seated in Geneva, is tasked, inter alia, with the objective to ensure interferencefree operations of radiocommunication on a global scale. It defines RFI as any effect of unwanted energy due to one or a combination of emissions, radiations, or inductions upon reception in a radiocommunication system, manifested by any performance degradation, misinterpretation, or loss of information (RR No. 1.166). While most RFI occur at low level and have only a very short-term and geographically limited impact, reports of increasing numbers of harmful RFI, in particular endangering the functioning of navigation services (RR No. 1.169), continue to be a source of great concern for many regulators as well as operators around the globe. Recently documented GPS signal jamming by Russian forces affecting air traffic near 11 passenger airports in Norway’s northern Finmark region (RNTFND [2022]) as well as impeding military operations in the ongoing war in Ukraine (Mehta [2022]) are only two of several other incidents in the Middle East, but also North American and Asian regions in

clear violation of international law (ITU-BR, CR/4788 [2022]; Baumann/Pellander/Baidoo [2019]). Continuing warnings issued by ICAO as well as ITU to their 193 Member States, most recently referring to 329 received reports about harmful interferences and infringements of its Radio Regulations between 1 February and 31 January 2022 (ITU-News [2022]; ICAO [2020]), present an ambiguous picture. On the one hand, they give a clear indication that efforts within the organizations as well as by many other industry stakeholders to establish an effective reporting and review mechanism in order to identify harmful RFI have been successful (ICAO [2017]). On the other hand, however, they reveal a systemic weakness of the ITU system: the absence of a strong enforcement mechanism to ensure compliance with the respective provisions of international law. Despite of several urgent appeals to Member States to exercise the utmost goodwill and mutual assistance in the application of Article 45 ITU Convention as well as Article 15 of ITU’s Radio Regulations regarding the settlement of disputes over harmful RFI, there has been no evidence that relevant States acknowledged the appeals or have undertaken any steps toward a return to compliance. However, one should not underestimate the diplomatic approach embedded in the ITU Convention, including instruments causing loss of international credibility by “naming and shaming” and political pressure exercised by other international organizations. In continuation of its efforts, ITU has announced that it wants to address the challenges of harmful RFI during the next World Radiocommunication Conference in Dubai toward the end of 2023. It remains to be seen whether it will succeed in nudging non-compliant States into responsibility. Considering the significant safety and security gains for international aviation, but also in light of further proliferation of GNSS, including incentives for future technology investments, this would most definitely constitute a desirable outcome. 3. Future GNSS Use As recent forecasts by European Union Agency for the Space Programme (EUSPA) indicate, the full potential of GNSS has not been reached (EUSPA [2022]). The Agency estimates that by 2031 more than 10 billion GNSS devices will be deployed across the world, the lion’s share of these (98%) used

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global navigation satellite systems for aviation  283 in mass market segments of consumer solutions, tourism, and health as well as road and automotive. In respect to these market shares, GNSS aviation applications appear to form a niche market at first sight. In absolute terms, however, the growing influence of GNSS on aviation should not be underestimated. In combination with satellite-based Earth observation, GNSS is expected to help in understanding and reducing the industry’s impact on the environment significantly, for instance, by aircraft emission measurement and monitoring. New types of precision approaches in less than 100 ft height supported by Dual Frequency Multi-Constellation (DFMC) and , most recently adopted as a new standard by the ICAO Council in March 2023, allowing for the combination of dual frequency signals from up to four GNSS constellations simultaneously, aim for an optimized efficiency as well as an improved resilience against RFI (Capretti [2019]). In addition, more and more downstream aviation applications, for instance, increasingly sophisticated drone operations in urban and low-level airspace environments, will benefit from readily available and affordable GNSS chipsets. As all these future applications must be carefully integrated into a single airspace ecosystem, in which safe and secure interoperability between manned and unmanned aviation is of key importance, reliance on GNSS in air traffic management is more than likely to increase. Ingo Baumann, Oliver Heinrich and Malte Krumm

References Alessandro Capretti, ‘Introducing the Global Navigation Satellite System in Civil Aviation Use’, ICAO Uniting Aviation, 31 May 2019. Dejian Kong, Sovereignty and GNSS: Connecting the Traditional Legal Concept with High Technology, in: Pablo Mendes de Leon/Niall Buissing (Eds.), Behind and Beyond the Chicago Convention, 2019, pp. 175 ff. EUSPA, ‘EO and GNSS Market Report’, Issue 1 (2022). ICAO State Letter AN7/5-20/89, ‘Strengthening of Communications, Navigation, and Surveillance (CNS) Systems Resilience and Mitigation of Interference to Global Navigation Satellite System (GNSS)’, 28 August 2020.

ICAO, ‘Global Navigation Satellite System (GNSS) Manual’, Doc 9849, Third Edition 2017. ICAO, ‘Report of the Fourth Meeting of the Special Committee on Future Air Navigation Systems’, Doc. 9524, FANS/4, Rec. 2/1, (1988). ICAO, 32nd ICAO Assembly, October 1998, Resolution A32-19, ‘Charter on the Rights and Obligations of States Relating to GNSS Services’. ICAO, 32nd ICAO Assembly, October 1998, Resolution A32-20, ‘Development and Elaboration of an Appropriate LongTerm Legal Framework to Govern Implementation of GNSS’. ICAO, Report of the 28th session of the Legal Committee, Doc. 930-LC/189, (1994). ICAO, Report of the Eleventh Air Navigation Conference, 22 September to 3 October 2003, AN-Conf/11-WP/206. Ingo Baumann/Erik Pellander/Nana Baidoo, ‘GNSS Cybersecurity Threats: An International Law Perspective’, InsideGNSS May/June 2019, pp. 30 ff. ITU Radiocommunication Bureau (BR), Prevention of harmful interference to Radio Navigation Satellite Service Receivers in the 1559–1610 MHz frequency band, Circular Letter CR/488, 8 July 2022. ITU/ITU-News, ITU Issues Warning on Interference with Radio Navigation Satellite Service, 23 August 2022. Jim Nagle, ICAO policy on GNSS, GNSS SARPs and global GNSS developments, presented to ICG-2, Bangalore, India, 5–7 September 2007. Ludwig Weber, The Global Navigation and Communications Satellite Systems and the Role of ICAO, in: ESA/ECSL et  al. (Eds.), Proceedings of the Third ECSL Colloquium-International Organisations and Space Law, European Space Agency, 1999 at 98. Michael Milde, International Air Law and ICAO, 3rd Edition, 2016, pp. 217 ff. Michael S. Nolan, Fundamentals of Air Traffic Control (Cengage Learning, 2011), at 4. Richard Farnworth, ‘Aviation Applications’, i n: Teu n issen / Montenbr uck ( E ds.), Springer Handbook of Global Navigation Satellite Systems, 2017, pp. 877 ff. Russia Jamming Norway GPS – Coordinated with Computer Attach?’, Resilient Navigation and Timing Foundation (RNTFND), 12 July 2022.

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79. The Guadalajara Convention (1961) See entries: 40. Aviation Law; 54. Code Share Agreements; 100. Liability for Damage to Cargo; 101. Liability for Death and Personal Injuries

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80. Guatemala City Protocol (1971) See entries: 90. International Aviation Law; 98. Liability for Accidents; 100. Liability for Damage to Cargo

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81. The Hague Convention (1970) See entries: 11. Air Piracy and Crime; 31. Airport Security; 37. Arbitration in Aviation; 40. Aviation Law; 44. Aviation Security (International); 47. Bermuda Agreements; 59. Cybersecurity; 84. Hijacking of Aircraft; 90. International Aviation Law; 130. Sabotage of Aircraft; 147. Unlawful Interference with Aviation

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82. The Hague Protocol (1955) amending the Warsaw Convention (1929) See entries: 4. Air Cargo; 15. Air Waybill; 40. Aviation Law; 47. Bermuda Agreements; 60. Delay under Private International Air Law; 90. International Aviation Law; 100. Liability for Damage to Cargo; 101. Liability for Death and Personal Injuries; 108. The Montreal Convention (1999); 153. The Warsaw Convention (1929)

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83. Handling I. Definition 1. Ground Handling Services At a global level, the International Air Transport Association (IATA), the trade association for the world airlines that supports aviation with global standards and industry policy on critical aviation issues, has identified and classified the services that are part of the handling activities. According to the 2018 IATA Standard Ground Handling Agreement (SGHA), the standard procurement contract generally used to govern the relations between air carriers and handling operators, ground handling services are divided into two large groups. The air side handling activities include all support services for aeronautical activities; the land side handling activities concern the services provided in the part of the airport interfacing with the surrounding area. 2. The 2018 IATA Standard Ground Handling Agreement (SGHA) The new version of the SGHA replaces the previous text of 2013 according to the usual five-year frequency. Among the other revisions, mention should be made of the duty of data protection (Article 1.1), the conventional prohibition of self-handling (Article 3.3), the reference to the standard practices and procedures of handler and IATA in the case of absence of instructions by the carrier (Article 5.3), the obligation to comply with the maintenance and safety criteria of the equipment in use to the operator (Articles 5.13 and 5.14), the introduction of an electronic receipt format (Article 7.1), the right to interrupt the service if the carrier fails to pay one or more services (Article 7.3), or, in case the carrier manifests its insolvency (Article 11.8), the agreed procedure to change the fees for the service (Article 11.11). 3. Liability and Indemnity In particular, Article 8 SGHA regulates the “liability and indemnity” of the carrier and the handler. The carrier cannot make any claim against the handler and shall indemnify it against any liability for claims or suits, including costs and expenses, in respect of delay, injury, or

death of persons carried or any employee of the carrier and in case of damage to or delay or loss of baggage, cargo, mail, and property (Article 8.1), or loss to third parties caused by the operation of the carrier’s aircraft (Article 8.2), arising from an act or omission of the handling company, unless done with intent to cause damage, death, delay, injury, or loss or recklessly and with the knowledge that damage, death, delay, injury, or loss would probably result. The handler cannot make any claim against the carrier and shall indemnify it against any legal liability for claims or suits, including costs and expenses, in respect of injury to or death of any employees, damage to, or loss of property of the handling company arising from an act or omission of the carrier, unless done with intent to cause damage, death, delay, injury, or loss or recklessly and with the knowledge that damage, death, delay, injury, or loss would probably result (Article 8.3). According to Article 9, failing mutual resolution of the dispute, the parties may elect to resolve the dispute through arbitration.

II. EU Regulatory Framework 1. Ground Handling Services according to the EU A specific list of ground handling services is contained in the Annex of Directive 96/67/EC of 15 October 1996 on access to the ground handling market at Community airports ([1996]), henceforth also referred to as the EU Directive, the first identification of ground handling activities by a regulatory text. The 11 categories of services indicated include ground administration and supervision, passenger, baggage, freight and mail handling, rump handling, aircraft services, fuel and oil handling, aircraft maintenance, flight operations and crew administration, surface transport, and catering services. The different services carried out at the airport form many separate markets, according to the opinion of the European Commission (since Case IV/M.786 Birmingham International Airport [1997]) and the approach adopted by the Court of Justice (Case C-82/01 Aéroports de Paris v. Commission [2002] ECLI:EU:C:2002:617), which have qualified handling services as a business activity subject to the EU rules on competition.

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handling  289 2. Directive 96/67/EC in the EU Aviation Liberalization Process The regulation on handling services is part of the broader liberalization process of air transport in the European Union (EU). The Directive clearly states the principle that most categories of ground handling services should be opened up to the maximum possible extent. Nevertheless, the progressive liberalization of handling services and self-handling may not come up against safety, security, capacity, and available space constraints. Therefore, Member States may sometimes limit the number of authorized suppliers of such categories of activities, provided the criteria for limitation are relevant, objective, transparent, and non-discriminatory (see European Commission Decision Düsseldorf Airport [1998]; Court of Justice Case C-277/13 Commission v. Portuguese Republic [2014] ECLI:EU:C:2014:2208). The EU Directive also allows Member States to impose public service obligations on airports serving peripheral or developing regions (Article 11). 3. Ground Handling for Third Parties and Self-handling Directive 96/67/EC applies to any airport located in the territory of a Member State, subject to the provisions of the Treaty and open to commercial traffic, whose annual traffic is not less than 2 million passenger movements or 50,000 tons of freight. If only freight traffic thresholds are reached, it does not apply to ground handling services exclusively reserved for passengers (Article 1.2). In airports with a lower traffic volume, the handling services may be provided by the airport managing body under a monopoly regime. Member States shall ensure free access to the market by suppliers of ground handling services to third parties (Article 6.1). Furthermore, self-handling by airport users is generally allowed, albeit with some exceptions, without exclusion depending on the amount of annual passenger or freight traffic (Article 7.1). The rights recognized by the EU Directive also apply to third country suppliers of ground handling services and third-country airport users under conditions of strict reciprocity (Article 20). The EU Directive does not affect the application of the rules of the Treaty (Article 100.2 TFEU represents its legal basis), especially

those of competition (see Commission Decision IV/34.801 [1998] FAG - Flughafen Frankfurt/Main AG, and IV/35.613 [1998] Alpha Flight Services/Aéroports de Paris). 4. Land Side and Air Side Operations The process of opening up to competition is based on the parameters of the type of services provided (land side or air side) and on the methods of production of the latter (ground handling for third parties or self-handling). Regarding the first category, the land side services have been fully liberalized, while the air side only partially, depending on airport capacity and security needs. Considering that the operations on the air side are located in a particularly sensitive area of the airport, the EU Directive does not impose complete freedom and requires a minimum degree of opening up of both self-handling and services to third parties. However, for baggage handling, ramp handling, fuel and oil handling, freight, and mail, Member States may not limit the number of suppliers to fewer than two for each category of ground handling service (Article 6.2). Moreover, they can neither directly nor indirectly control authorized service suppliers: at least one may not be directly or indirectly controlled by the managing body of the airport or by any airport user who has carried more than 25% of the passengers or freight during the year preceding or by a body controlling or controlled directly or indirectly by the managing body or any such user (Article 6.3). Member States may reserve the right to self-handle no fewer than two airport users, provided they are chosen on the basis of relevant, objective, transparent, and non-discriminatory criteria (Article 7.2). 5. Centralized Infrastructures and Access to Installations Airport infrastructure may also encounter structural limitations due to complexity, cost, or environmental impact, which do not allow their separation or duplication. For example, baggage handling systems, defrosting, water purification, and fuel distribution are among the factors allowing the managing body of the airport to retain the exclusive operation of the infrastructures (Article 8) and that require the suppliers of ground handling services and self-handling airport users to use centralized infrastructures. francesco morandi

290  elgar concise encyclopedia of aviation law The management of these infrastructures is based on the principles of transparency, objectivity, so as to ensure the access of ground handling service providers or self-handling airport users are not hindered (Court of Justice in Case C-181/01 Deutsche Lufthansa AG v. ANA - Aeroportos de Portugal SA [2007] ECLI:EU:C:2007:412). The managing body is entitled to collect a fee for the use of airport installations of an amount that accounts for the interest of that body in making a profit (Article 16.3; Court of Justice, Case C-363/01 Flughafen HannoverLangenhagen GmbH v. Deutsche Lufthansa AG [2003] ECLI:EU:C:2003:548). 6. Separation of Accounts Since the managing body of the airport may also provide ground handling services, its decisions may significantly affect competition among ground handling service providers. To ensure fair competition in the sector, airports are required to separate the accounts for their infrastructure management and regulatory activities, on the one hand, and the supply of ground handling services, on the other (Article 4). The same transparency requirements apply to the airport user and the supplier of ground handling services. To avoid cross-subsidies between exclusive activities and the other activities along with preventing the handling services from being provided below cost, an airport may not subsidize its ground handling activities using the profit resulting from its role as the airport authority (Recital 20). 7. Safety and Security, Social and Environmental Protection To guarantee high standards and ensure the quality of the services, Member States may make the ground handling activity of a supplier or a self-handling user conditional upon obtaining the approval of a public authority independent of the managing body of the airport (Article 14). As per usual, the measures adopted must comply with principles of nondiscrimination, objectivity, and free access to self-handle. They also must be concerned with a sound financial situation, sufficient insurance cover, the security and safety of installations, aircraft, equipment and persons, as well as environmental protection, and they must comply with the relevant social legislation (see Case C-460/02 Commission v. Italian Republic [2004] ECLI:EU:C:2004:780; Case francesco morandi

C-386/03 Commission v. Federal Republic of Germany [2005] ECLI:EU:C:2005:461).

III. Concluding Remarks Over time, the ground handling regulation has been the subject of several studies (SH&E 2002, ECORYS 2008, ARC 2009, Booz 2009, SDG 2010, etc.), a report on the application of the Directive ([2007] Report from the Commission COM(2006) 821 final), a European Parliament resolution ([2007] 2007/2092(INI)), a stakeholders’ public consultation ([2009–2010] Impact assessment for a possible revision of the Directive 96/67/ EC; see the [2011] Commission staff working paper SEC(2011) 1439 final). The resulting European Commission’s “proposal of regulation on ground handling services at Union airports and repealing Council Directive 96/67/EC” (COM(2011) 824 final) has never been adopted. The trouble with acting on a crucial matter for airports, airlines, and passengers, which is a strategic issue for the efficient use of air transport infrastructure and the performance of the aviation system in general, is today heightened by the need to consider the impact of the COVID-19 pandemic on regulation of ground handling. Francesco Morandi

References Abeyratne, Ruwantissa (2008). ‘Ground Handling Services at Airports as a Trade Barrier’ 42(2) Journal of World Trade, 261–277. Abeyratne, Ruwantissa (2014). Law and Regulation of Aerodromes. Springer. Balfour, John (1998). ‘Air Transport Liberalisation in the EU: The Current Legal Framework and Anticipated Developments’ (4) Travel Law Journal, 168–176. Blanco, L. Ortiz, and Van Houtte, Ben (eds.) (2017). EU Regulation and Competition in the Transport Sector. Oxford University Press. Colangelo, Margherita, and Zeno-Zencovich, Vincenzo (2019). Introduction to European Union Transport Law, 3rd edition. Roma3E-Press. Available at: http://romatrepress ​ . uniroma3​ . it ​ / libro ​ / introduction​-to​- european​-union​-transport​ -law​-iii​-edizione.

handling  291 Crans, Berend J. H. (1996). ‘Liberalization of Airports’ 21(1) Air & Space Law, 10–16. de Bournonville, Dimitri, and Blackshaw, Carole (2011). ‘Ground Handling at European Airports: A Look at the Potential Effects of the Draft New Ground Handling Regulation Proposed by the European Commission’ 10(4) The Aviation & Space Journal, 2–16. Deselaers, Wolfgang (1996). ‘Liberalisation of Ground Handling Services at Community Airports’ 21(6) Air & Space Law, 260–266. Dussart-Lefret, Corinne, and Federlin, Christine (1994). ‘Ground Handling

Services and EC Competition Rules’ 19(2) Air & Space Law, 50–61. Karlsson, Kent, and Callaghan, James J. (1999). ‘Air Transport Liberalisation Comes Down to the Ground: Recent E.C. Developments in the Ground handling Sector’ 20(2) European Competition Law Review, 86–100. Peeters, Maarten R. (2008). ‘The European Commission’s Airport Package’ 33(3) Air & Space Law, 244–276. Zolea, Sirio (2022). ‘Ground Handling’ Encyclopaedia of European Union Law, OUP.

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84. Hijacking of Aircraft I. Introduction The term “aircraft hijacking” has the common meaning of the unlawful seizure of an aircraft in flight as well as its unlawful diversion to a non-scheduled destination. The necessity to deal with those acts that are able to create a state of terror in the minds of persons, or a group of persons or the public, first arose in 1937 when the Council of the League of Nations drafted a Convention on Terrorism for the establishment of an International Criminal Court, which would have jurisdiction over certain acts specified as acts of terrorism in the Convention. Looking at the evolution of aviation law, the issue of aircraft hijacking drew attention soon after the end of World War II as the use of aircraft for the transport of passengers and civil purposes became the norm. Moving from consideration that the transport by air is a fact that mainly involves more than one country, the first attempt to deal with the problem of aircraft hijacking was made at the international level.

II. Aircraft Hijacking and the Geneva Convention of the High Seas (1958) The Geneva Convention of the High Seas of 1958 was the first law instrument that aimed to harmonize the application of rules to both piracy at sea and in the air. This Convention considers the substantial similarity between “hijacking” and “piracy,” the latter defined as “Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passenger of a private ship or a private aircraft (…) against the ship or a private aircraft” (Art. 5). The Geneva Convention treated acts of violence against vessels and aircraft (in the high seas), and commentaries have considered that considerable difference exists between the two terms (and conducts). While piracy is essentially based on “private ends,” aircraft hijacking is mainly provoked by “public and political ends.” In this sense the Geneva Convention assumed that the act of violence against the aircraft should be made from outside the plane. Also, piracy, according to the Convention, must be committed on the “high

seas,” while instances of hijacking may occur anywhere. Moreover, according to the Art. 15 of the Convention, a hijacking must involve acts of violence, detention, or depredation while experience has shown that hijackings have been carried out simply using threats or by a variety of means other than those involving violence or force. These arguments have led to the conclusion that hijacking does not necessarily fall within the “aircraft piracy” as defined by the Geneva Convention on the High Seas.

III. The Tokyo Convention (1963) and the Role of ICAO In parallel to the Geneva Convention, and since 1950, the International Civil Aviation Organization (ICAO) has focused its attention on the necessity to assess the issue of rights and obligations placed on the aircraft. The aim of these works has been to determine the law applicable to events occurring and acts performed onboard an aircraft and, in this sense, according to official records seven types of acts were studied. Of these, two involved acts that were crimes under the law of the State of registry and the State in which the act occurred, or one but not both States; the other five involved various civil matters, such as torts and contracts, torts requirements under both the law of the State in which the aircraft is registered and the territorial or subjacent State. In particular, those acts related to crimes were (1) acts that are crimes under the law of the State of registry of the aircraft and the law of the State in which the act occurred, and (2) acts that are crimes according to the law of the two States mentioned above. Moving from these considerations, the Legal Status of the Aircraft sub-committee in Montreal issued the first draft convention on offenses, criminal jurisdiction, and the rights and duties of the aircraft commander. Commentaries have recognized it as the first pure aviation legal instrument to deal with acts and offenses able to jeopardize the safety of aircraft. Based on this background, the representatives of 49 ICAO Member States signed in Tokyo on 14 September 1963 the Convention on Offences and Certain Other Acts Committed on Board of Aircraft, which entered into force after six years on 4 December 1969 (Tokyo Convention). The essential goal of the Tokyo Convention was to achieve the collaboration of States

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hijacking of aircraft  293 in restraining terrorist activity against air transport in consideration of the necessity to ensure that commission of crimes onboard aircraft while in flight where for any number of reasons the criminal might escape punishment would be liable to punishment. According to the Tokyo Convention, in case of (1) offenses against penal law committed by any person onboard the aircraft, and (2) acts that, whether or not they are offenses, may or do jeopardize the safety of the aircraft or of persons or property therein or which jeopardize good order and discipline onboard (Art. 2), the State of registration of the aircraft has the authority to apply its laws (Art. 3). This Convention, which does not apply to aircraft used in military, customs, or police services, also contains specific provisions related to the position and powers of the aircraft commander. Indeed, he has the authority to deal with persons who have committed, or are about to commit, a crime or an act jeopardizing safety onboard his aircraft through use of reasonable force when required and without fear of subsequent retaliation through civil suit or otherwise (Arts. 5–10). The Tokyo Convention also establishes the duties and responsibilities of the contracting State in which an aircraft lands after the commission of a crime onboard, including its authority over, and responsibilities to, any offenders who may be either disembarked within the territory of that State or delivered to its authorities (Arts. 12–15). Notwithstanding the mentioned goals, the Tokyo Convention does not define the offense of hijacking. Art. 11 only specifies the circumstances that would constitute the offense, such as when a person onboard has unlawfully committed by force or threat thereof an act of interference, seizure, or other wrongful exercise of control of an aircraft in flight or such an act is bound to be committed. As stated before, hijacking is not “aerial piracy” within the meaning of the Geneva Convention, and, above all, it is basically committed by a person onboard an aircraft who, once landed, leaves the aircraft, and normally is located in a country that will ensure him the right of asylum or of which he is a citizen. Despite, after 1960, an increase in aircraft hijacking by persons on the ground, or even by a willing aircraft commander according to established ICAO terminology as well as to

most commentators, the expression “unlawful seizure of aircraft” applies only to acts of unlawful interference with the control of an aircraft committed by a person on board. The fact that the Tokyo Convention has not outwardly dealt with the issue of aircraft hijacking has led the ICAO soon after the entry into force of the Convention to focus on this topic. The aim has been indeed to deter persons from committing unlawful seizure of aircraft and, at the same time, ensuring the prosecution and punishment of these persons.

IV. Subsequent Attempts to Improve the Regulation of Aircraft Hijacking at the International Level The outcome of this activity led to approval of The Hague Convention for the suppression of the unlawful seizure of the aircraft, done in 1970. Despite the title, the Hague Convention neither features nor defines the expression “unlawful seizure of aircraft.” In respect to the previous convention (Tokyo 1963), this second international legal instrument considers offenses as made by any person who, onboard an aircraft in flight, (a) unlawfully, by force, or threat thereof, or by any other form of intimidation, seizes or exercises control of that aircraft or attempts to perform any such act; or (b) is an accomplice of a person who performs or attempt to perform any such act (Art. 1). The Hague Convention also set a geographical framework in terms of its application. Art. 3 limits the offense described in Article 1 to “unlawful seizure” of aircraft committed during flight with an “international character.” According to this Convention (Art. 4), each State shall take such measures as may be necessary to establish its jurisdiction over the offense and any act of violence against a passenger or crew when (a) the offense is committed onboard an aircraft registered in that State; (b) the aircraft on which the offense is committed lands in the territory with the alleged offender still onboard; (c) the offense is committed onboard an aircraft leased without crew to lessee who has his principle place of business or, if he has no such place of business, his permanent residence in that State. federico franchina

294  elgar concise encyclopedia of aviation law Art. 4 also adds that every contracting State must take necessary measures to establish its jurisdiction over the offense in cases in which the alleged offender is present in its territory and it does not extradite him. Art. 7 of the Hague Convention also provides that the State in whose territory the alleged offender is found shall, if it does not extradite him, be obliged to submit the case to its competent authorities for the purpose of prosecution. With these provisions, the gap left by the Tokyo Convention to deter and contrast hijacking has been filled, giving the State a tool of action in the absence of any link between an alleged offender and the State of landing. On the other hand, and despite the relevant improvement from the Tokyo Convention to the Hague Convention, it has been noted that both the Conventions have left out the issue of unlawful act committed on the ground. Indeed, they do not cover unlawful interference with air navigation facilities and services. In this sense the ICAO Member States have approved another international legal instrument, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, known as the Montreal Convention (1971). The Montreal Convention (1971) introduced a definition of “aircraft in service.” Aircraft is in service from the beginning of the preflight preparation of the aircraft by ground personnel or by the crew for a specific period until 24 hours after the landing. The period of the service shall, in any event, extend for the entire period during which the aircraft is in flight (Art. 2), and the Convention listed the types of offenses committed (Art. 1) using a broader meaning of the term “violence” and including those acts committed onboard the aircraft as well as those on the ground, including aviation infrastructures. A Protocol related to the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation was added to the Montreal Convention (1971) in 1988. In place for almost 30 years, the legal system worked such as to produce a steady decrease of hijacking incidents until the devastating events of 9/11 led to renewed shocks. federico franchina

V. The Beijing Convention (2010) Alongside ICAO Annex 17, the international community felt it necessary to assess the phenomenon through a proper instrument. In 2010, ICAO Member States approved the Beijing Convention, which supersedes the Montreal Convention (1971) and its Protocol (1988). The Beijing Convention introduces the concept of dangerous materials (Art. 1) that could be used for attacking civil aircraft. This provision lists articles as well provides a broader definition of “offense,” which can create damage to property or to the environment a part to persons which includes legal ones. In 2010 ICAO Member States also adopted the Beijing Protocol, which aims to widen the scope of the Hague Convention (1970) by amending it and putting in place new provisions on extradition and providing for a broader meaning of terms such as “terrorist attack” and “persons.” The evolution of air transport, given its constant growth, has recently witnessed a new phenomenon, that of the “unruly passenger.” Several factors can affect passengers (alcohol and illegal drugs consumption, smoking bans, claustrophobia, persistent flight delays, insufficient leg room in the cabin, etc.), increasing the risk of unruly behaviors. Such situations carry risks that can compromise the safety of the aircraft as well as give rise to issues such as a possible lack of jurisdiction and weak enforcement. These considerations have led ICAO to propose a modification of the Tokyo Convention in order to allow conduct of unruly passengers to fall within the scope of the Convention itself to reduce the risk of these dangerous behaviors and to ensure their punishment. Federico Franchina

References Abeyratne, Ruwantissa, Unruly Passengers – Legal, Regulatory and Jurisdictional Issues, in Air & Space Law Review, XXIV(2): 46– 61 (1999). Abyeratne, Ruwantissa, Aviation Security Law, Springer, 2010.

hijacking of aircraft  295 Abeyratne, Ruwantissa, The Beijing Convention of 2010: An Important Milestone in the Annals of Aviation Security, in Air and Space Law, 36(3): 243–255 (2011). Abramovsky, Abraham, The Hague Convention, in Columbia Journal of Transnational Law, 3(3): 89 (1974). Abramovsky, Abrahm, Multilateral Convention for the Suppression of Unlawful Seizure and Interference with Aircraft, in Columbia Journal of International Law, 13(3): 381 (1974). Abramovsky, Abraham, The Montreal Convention, in Columbia Journal of International Law, 14(2): 278 (1975a) Ben Bella, M., de La Pradelle, P., Revue Generale de l’air, 233, 1956. Boyle, Robert P., Pulsifer, Roy, The Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft, in Journal of Air Law and Commerce, 30(4): Article 2 (1964). Diederiks-Verschoor, I.H., Mendes de Leon, P., An Introduction to Air Law, Kluwer, 2012. du Pontavice, E., Revue Generale de l’air, 276, 1970. Evans, Alona E., Aircraft Hijacking: Its Cause and Cure, in American Journal of International Law, 63: 695–696 (1969).

Fitzgerald, G.F., Toward Legal Suppression of Acts Against Civil Aviation, in International Conciliation 585: 42–78 (1971). ICAO Document 7035-LC/128, 1953. ICAO LC/SC “Legal Status”; WD No. 14, 1956. ICAO, LC/34-WP/2-4. Int’l Law Ass’n, Fifty-Third Annual Report, B.A. Consult. Ass., 1st Sess., at XXI, at 112 (1968). Mankiewicz, René H., The 1970 Hague Convention, in Journal of Air Law and Commerce, 37(2): Article 6 (1971). Milde, Michael, The International Fight against Terrorism in the Air, in The Use of Airspace and Outer Space for All Mankind in the 2Ist Century, B. Cheng (ed.), Kluwer Law International (1995), pp. 143–144. Piera, Alejandro, ICAO’s Latest Efforts to Tackle Legal Issues Arising from Unruly/ Disruptive Passengers: The Modernization of the Tokyo Convention 1963, in Air & Space Law Review, 37(3): 231–244 (2012). Van Panhuys, Haro Frederick, Aircraft Hijacking and International Law, in Columbia Journal of Transnational Law, 9: 13 (1970).

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85. Hull Insurance

I. Utmost Good Faith

Hull Insurance is a contract in which the insurer undertakes to compensate the economic loss of the insured, if the aircraft in which the insured has an economic interest is damaged or destroyed during the term of the contract. Compensation is made by determining the monetary equivalent of the economic loss and paying it to the insured. The amount of money payable by the insurer is called the “insurance indemnity.” In consideration for the insurer’s promise to pay insurance indemnity in the event of damage or destruction during the term of the contract, the insured is obliged to pay a certain sum of money called the premium. A hull insurance contract put in writing and signed by the insurer is called a “hull policy.” Hull policies are typically issued for a term of one year. The time and date on which the hull policy becomes binding on both the insurer and insured is called “inception.” At inception, the insurer is called to pay an insurance indemnity to compensate the probable loss of the insured in accordance with the provisions of the policy. The insured, in turn, has to pay the premium. A hull policy protects the insured against economic loss in case the aircraft is damaged or destroyed by shifting the burden of bearing the financial consequence of the realization of this risk to the insurer. The premium is a small fraction of the economic loss that may result if the aircraft is damaged or destroyed. The insurer keeps the premium regardless of whether the risk they carry throughout the term of the policy is realized or not. By collecting premiums from the many, insurers strive to be able to make good the losses of the few, as well as securing a reasonable and equitable profit for the capital, know-how, expertise, time, and other resources that they employ to make it possible. Aviation insurance by its nature is a potentially hazardous market for insurers. Large losses are rare, but their financial consequences can easily bankrupt an imprudent insurer. It is therefore very uncommon for a single insurer to issue a hull policy covering 100% of risk for a commercial airline or other commercial operator of aircraft. Any individual hull policy is almost always issued by several insurers. Insurers are sometimes called underwriters.

A person with an insurable interest in an aircraft who wishes to obtain hull insurance has an increased burden of acting in utmost good faith, as compared to ordinary basic good faith expected from parties to any other contract in general. He/she must disclose to the insurer any and all material facts about the aircraft, the purpose for which it is used, the regions where it will fly, minimum qualifications of the crew who will fly and maintain it, and anything else that will enable the insurer to measure the risk as accurately as possible and fix a reasonable premium. Failure to disclose any material fact that, had the insurer been of aware of it, he/she would reasonably have been expected to decline to issue the policy, or to charge a higher premium, may result in a situation where the insurer is relieved of the obligation to pay an insurance indemnity.

II. Insurable Interest The sole purpose of a hull insurance contract is to put the insured in exactly (or almost exactly) the same economic position after a loss as he/she was immediately before the loss. The insured must therefore have an “insurable interest” in the aircraft. He/she may be the owner of the aircraft or have a security interest, such as a mortgage or lien on it. Lessees of aircraft also have an economic interest if the lease agreement requires them to carry the risk of damage to, or destruction of, the aircraft. If the person who purchases hull insurance for an aircraft is not in a position to lose anything as a result of damage or its destruction, the insurance contract is null and void.

III. Perils and Risks A peril is a harmful event. Risk is the probability of a peril happening and causing harm. In the context of a hull policy, risks are perils covered by the policy. There are many perils that can damage or destroy an aircraft, such as accident, theft, fire, flood, storm, earthquake, sabotage, hijacking, war, warlike hostilities, terrorism, seizure by a government, etc. The hull policy can specify which perils are within the scope of the policy. Alternatively, instead of exhaustively naming each peril, it can be issued as an “all risks policy.” With a hull all

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hull insurance  297 risks policy, any peril that is not expressly excluded will be within the scope of the policy, without having to name it. Even then, and for obvious reasons, damage or destruction as a result of an intentional act by the insured is not within the scope of insurance. All risks policies typically exclude war, hijacking, and similar risks. Hull war policies against war risks can be purchased from insurers specializing in this type of insurance. In hull policies, a distinction can be made between ground risks and flight risks. For a variety of reasons, there can be times when an aircraft will not be flying for an extended period. This eliminates risks peculiar to flight and lowers the exposure of the insurer, and it entitles the insured to a rebate or lowered premiums.

IV. Deductible In all hull policies there is a certain amount called the “deductible” in some countries and the “excess” in others, which will be deducted from the insurance indemnity payable to the insured. This is usually a small percentage of the sum insured. The deductible or excess limits the risk of the insurer to a certain extent and saves the cost of processing numerous small claims. This practice also drives down the premium and makes insurance more accessible to persons or entities who may otherwise find the cost of the premium prohibitive. However, the downside for the insured is that he/she will have to bear the loss up to the deductible. There are insurers who specialize in offering hull insurance for the deductible.

V. Actual Total Loss and Constructive Total Loss The physical destruction of an aircraft beyond any means of repair is called an “actual total loss.” If an aircraft disappears under circumstances conducive to its destruction, and it cannot be found within a reasonable period of time, actual total loss may be presumed. In case of an actual total loss, the insurer is obliged to pay the current value of the aircraft to the insured, provided it does not exceed the “sum insured” defined in the policy. The sum insured is the maximum amount of insurance indemnity that the insurer is obliged to pay. It is also called the “policy limit.” If the policy limit is less than

the current value of the aircraft, the insured will have to bear the loss in excess of the policy limit. The value of an aircraft can change significantly with its age, utilization, and condition. In addition to this, commercial aircraft values also fluctuate to a substantial degree with the strength of demand for passenger and cargo transport. Owing to these reasons, determining the actual value of an aircraft on a certain date presents many difficulties and is likely to lead to disputes between the insurer and the insured. For this reason, in almost all hull policies, the parties agree on the value of the aircraft at inception. This is called the “agreed value” principle. The insurer will pay the agreed value if the aircraft is destroyed, regardless of whether the agreed is value is higher or lower than the actual value of the aircraft on the date of its destruction. If an aircraft is damaged to such an extent that the cost of repairing it is close to or exceeds its agreed value, the aircraft can be declared a “constructive total loss,” and the agreed value is paid to the insured. In both actual and constructive total losses, the aircraft or what remains of it becomes the property of the insurer upon payment of the insurance indemnity. Any money obtained from the sale of the wreckage for scrap, or the damaged aircraft, is called the salvage value and will belong to the insurer.

VI. Repairable Damage If the anticipated value of a damaged aircraft after repair exceeds the cost of repairing it, the insurer is obliged to pay the cost of repairing and thereby restoring the aircraft to its condition before the event that caused the damage, not exceeding the policy limit. This is not as simple as it sounds, as repairs to the aircraft may in most cases result in “betterment.” Betterment is repair or replacement of aircraft components that restore the aircraft to a condition that is superior to its condition immediately before the loss. Aircraft are complex machines with many life limited parts. A life limited part is an aircraft component that has to be removed and replaced with a new one after a certain number of flight hours or cycles, even if it still works. (A cycle is one takeoff, flight, and landing.) If a component installed on the aircraft that was used for a certain number of flight hours or cycles before it was damaged is replaced by a new component, which can be used for more flight ali kartal

298  elgar concise encyclopedia of aviation law hours or cycles than that remaining on the component it replaces, this constitutes a betterment. The insurer is obliged to pay only the fair market value of the used component just before it was damaged and not the total cost of replacing it with a brand new one. Another issue is reduction of resale value. An aircraft with a damage history may attract a lower price when resold, compared to an identical aircraft without a damage history. A hull policy does not cover reduction in resale value.

VII. Subrogation Aircraft are sometimes damaged or destroyed due to negligent acts of third parties. Ground collisions between airport ground service vehicles and aircraft are typical examples. When a hull insurer pays insurance indemnity to the insured as a result of damage or destruction negligently caused by a third party, the right of the insured to demand compensation from persons or entities who may have caused the loss automatically passes to the insurer. This is called “subrogation.” To protect the insurer’s material interest in subrogation, the insured has an obligation to notify the insurer as soon as possible after a loss has occurred, preserve evidence, take all necessary legal actions in a timely manner to make sure that the right to demand compensation from liable parties is not jeopardized, and provide the insurer with any and all information and documentation that will enable them to pursue a claim against

ali kartal

the liable parties. The insured may also be required to sign and submit a “subrogation receipt” to the insurer upon payment of the insurance indemnity. This document enables the insurer to prove that they are entitled to demand compensation from the persons or entities who may have caused the loss. The right of the insurer to demand compensation is limited to the amount of insurance indemnity that they paid. The insured retains the right to demand the deductible, and the reduction in resale value, from the liable parties. If the actual loss is greater than the insurance indemnity, the insured is also entitled to demand compensation for the amount that exceeds the insurance indemnity that they have received. Ali Kartal

References “A Guide to Aviation Insurance”, International Union of Aerospace Insurers, December 2012, accessed 28 April 2022 Glossary and Acronyms, accessed 28 April 2022 Aoife O’Sullivan, “Make Sure You’re Covered”, accessed 28 April 2022

86. IDERA I. Legal Sources 1. Cape Town Convention and Protocol The Convention on International Interests in Mobile Equipment (Convention) and the Protocol on Matters Specific to Aircraft Equipment (Protocol) were concluded in Cape Town on 16 November 2001 and entered into force on 1 March 2006. These two legal instruments were adopted under the joint auspices of ICAO and UNIDROIT, the latter having worked closely with the Aviation Working Group (AWG) and IATA. The Convention and the Protocol state that they shall be read and interpreted together as a single instrument, but in case of any inconsistency between the two, the Protocol prevails (Art. 6, § 2 Convention). The Convention can be ratified alone, but such a ratification has no legal effect. However, a country cannot ratify the Protocol without having first ratified the Convention (Art. XXVI, § 5 Protocol). September 2023, the Convention and the Protocol had 84 Contracting States. 2. Rationale and Definition Aircraft and helicopters are particularly expensive and can travel unimpeded from one State to another. Considering the substantial amounts involved in the financing of these asset categories, credit financing companies have tended either to deny credit to potential debtors from certain States, in particular developing States, or to increase the costs significantly. One reason for this is that each State has its own legal regime with different dispositions covering security agreements, conditional sells under a title reservation agreement, and leasing agreements, which creates legal uncertainty among lending institutions as to the effectiveness of their rights. Therefore, the aim of the Convention and the Protocol is to provide a legal framework that strengthens the rights of creditors by establishing commonly accepted rules allowing a financing company or a lessor to swiftly repossess and retain an aircraft if it considers the borrower or the lessee to be in default, permitting it to reallocate the aircraft, so it can be used for other revenue-generating purposes. These measures are facilitated by the adoption of an irrevocable de-registration

and export request authorization (IDERA), which can be defined as the issuance, by the debtor, of an irrevocable de-registration and export permit application authorization, intended to have the authorized party (the creditor) recognized by the competent authority as the only person entitled to de-register, export, and transfer the aircraft from the territory in which it is located.

II. Defaulted Debtor 1. Remedies The Convention and the Protocol provide an arsenal of remedies available to the creditor in the event of default by the debtor. Among these remedies, the creditor may (1) take possession or control of any object charged to it, (2) sell or grant a lease of any such object, and/or (3) collect or receive any income or profits arising from the management or use of any such object (Art. 8, § 1, a-c Convention), but also (4) have ownership of the object transferred to it, in or toward satisfaction of its secured obligations, subject to the restrictive conditions set out in Article 9 of the Convention. These remedies flow from the existence of an “international interest” between the parties to the agreement. 2. International Interest The Convention set out four cumulative conditions for the creation of an international interest. First, the parties shall be bound by a security agreement, a title reservation agreement, or a leasing agreement (e.g., operational or financial lease) (Art. 2, § 2, a-c Convention). Second, the agreement shall relate to an aircraft object (i.e., an airframe, aircraft engine, or helicopter), which is capable of being uniquely identifiable (Art. 2, § 2 and 3 Convention). Third, the agreement shall meet certain formal requirements, which are set out in Article 7 of the Convention (Art. 2, § 2 and 3 Convention). Finally, the debtor must be situated in a contracting State at the time of the conclusion of the agreement creating the international interest. The geographical location of the creditor is irrelevant (Art. 3, § 1 Convention). However, the Protocol adds that the Convention also applies to helicopters and airframes belonging to an aircraft registered in a contracting State at the time of the conclusion of the agreement (Art. IV, § 1 Protocol). Thus, the international interest is created by the conclusion of the agreement itself. It arises under the Convention,

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300  elgar concise encyclopedia of aviation law not under national law, and constitutes a right in rem. One of the cardinal principles of the Convention is that it allows a party to the contract to exercise directly the remedies provided for in the event of default by the other party, without having to obtain a prior court order. However, this is the case only if the contracting State in which the debtor is situated has not made a declaration (opt-out) making the exercise of the Convention remedies subject to a prior court order (Art. 54, § 2 Convention). 3. Aim of the IDERA Where an aircraft is financed or leased, default by the debtor or lessee may, depending on the terms of the agreement, constitute a default under Article 11 of the Convention. If so, the credit financing companies or the lessor may decide to repossess the aircraft, sell it, or have its ownership transferred in or toward satisfaction of the secured obligations (Art. 8, § 1 and Art. 9 Convention). However, to be attainable and effective, a repossession generally must be done in parallel with a de-registration, which is a prerequisite for a new registration (Art. 18 The Chicago Convention). Similarly, a change of ownership also should be accompanied by a de-registration prior to the registration of the aircraft, as most States make the acquisition and transfer of ownership of an aircraft conditional upon its registration in an aircraft register. It is at this stage that the operation can be delicate, depending on the national body in charge of registrations and the type of register concerned. In particular, some national registers are limited to owners only, which means that only owners are entitled to request the de-registration. In the case of financing, the credit financing company is not the aircraft owner of the aircraft and, as such, cannot obtain the de-registration itself. Therefore, the de-registration is subject to the goodwill of the debtor, who is the owner of the aircraft. Other types of national registers register the owner and the operator, as is the case in the Netherlands. In the case of a lease, the lessor-owner cannot obtain the de-registration without the express agreement of the lessee operator. To overcome these difficulties, the Protocol has introduced, in addition to the aforementioned remedies, the possibility of calling for an IDERA. The IDERA allows the credit financing company or the lessor to physically repossess the aircraft and arrange for a ferry flight jacomo restellini

to the desired location for maintenance, refurbishment, and/or remarketing for sale or lease, before the debtor flies to a jurisdiction where the Convention does not apply. A debtor can issue an IDERA only if the Contracting State in charge of the de-registration has declared expressly its consent to apply the articles of the Protocol relating to IDERA (opt-in); contracting States having the choice as to whether or not to apply these articles (Art. XXX, § 1 Protocol). One of the great advantages of an IDERA lies in the fact that the registry authority and other administrative authorities of the contracting State have the obligation to promptly assist the authorized party (the creditor) to implement the de-registration of the aircraft and its exportation, without having to obtain a prior court order (Art. XIII, § 4 Protocol). The Protocol does not impose, per se, an obligation for the debtor to issue an IDERA. Therefore, the option for the creditor to de-register and export the aircraft is based solely on the debtor’s consent, which may be given at any point in time and not necessarily in the agreement constitutive of the interest (Art. IX, § 1 Protocol). In practice, the debtor registers an IDERA in writing before the registry authority; an IDERA template is annexed to the Protocol (Art. XIII, § 2 Protocol). Once registered, only the person in whose favor an IDERA has been issued may implement the de-registration and export measures provided for in the Protocol, within the limits of any applicable safety laws and regulations (Art. XIII, § 3 Protocol). Also, an IDERA may not be revoked by the debtor without the written consent of its beneficiary. The registry authority shall remove an authorization from the registry only at the request of the beneficiary (Art. XIII, § 3 Protocol).

III. Implementation Requirements Once the IDERA is issued, the beneficiary can implement it and thus, proceed with the de-registration and export of the aircraft only if several cumulative conditions are met. First, the debtor must be in default of its obligations. If the circumstances that constitute a default are not provided for directly in the contract between the parties then the Convention defines default as “a default which substantially deprives the creditor of what it is

idera  301 entitled to expect under the agreement” (Art. IX, § 1 Protocol and 11, § 2 Convention). The use of the term “substantial” means that a mere non-performance is, in principle, not sufficient. Second, as mentioned above, the debtor must have given its consent to a de-registration as a remedy for default. The signing and registration of an IDERA is in itself constitutive of such consent (Art. IX, § 1 Protocol). Third, the request for de-registration and export shall be submitted properly. In particular, this means that the request shall be made in writing, identify the IDERA recorded in the registry, and be signed by an authorized party or a certified agent. To assist contracting States, the AWG has drafted and published on its website a standard application form for de-registration and export with explanatory comments and documents. Fourth, the authorized party shall certify “to the registry authority, if required by that authority, that all registered interests ranking in priority to that of the creditor in whose favour the authorisation has been issued have been discharged or that the holders of such interests have consented to the de-registration and export” (Art. IX, § 5, b Protocol). In practice, this condition does not raise any particular difficulty since it is customary for an IDERA to be issued in favor of the lessor or the credit financing company that benefits from the highestranking receivable. Fifth, the request for de-registration and export shall not contravene any applicable laws and regulations relating to aviation safety (Art. XIII, § 3 Protocol). For some scholars, this condition applies only to the export and not to the de-registration since the risk to aviation safety lies in the export and not in the administrative task of de-registration. The protocol does not define the laws and regulations applicable to aviation safety that could hinder the effectiveness of an IDERA. Therefore, this issue will have to be assessed by each State authority requested to proceed with a de-registration and export on the basis of international safety rules and its own national rules. Given this broad discretion, a creditor would be well advised to inquire about the applicable security rules in the contracting State before having an IDERA registered. Finally, the creditor shall give reasonable written notice of the proposed de-registration and export, provided that the de-registration and export is not the result of a court order. The list of persons to be notified

is set out in Article 1, (m) of the Convention by reference to Article IX, § 6 of the Protocol. Once these requirements are met, the registry authority shall honor each request promptly and, in any event, no later than five working days after receipt of the request. It also should be noted that some national regulations may impose additional formalities to which attention should be paid, such as the obligation to notarize or legalize an IDERA.

IV. Concluding Remark The IDERA system implemented by the Protocol is an important source of security for credit financing companies because of the legal predictability it provides. The resulting reduction in the cost of borrowing allows debtors to acquire more modern and, thus, more fuel-efficient aircraft. According to ICAO, airlines in States that adopt the Convention and the Protocol may benefit from a 10% discount on export credit premiums. Jacomo Restellini

References Aviation Working Group, Model Implementing Idera Regulation. Available at:  http://awg​ . aero​ / wp​ - content​ / uploads​ /2019​/09​/ IDERA​-Regulation​-AWG​-Model​ -FINAL​-NOV2014X​-2​-revised​-May​-2015​ -final​.pdf accessed 2 January 2022. Convention on international interests in mobile equipment, (2001). Available at: https://www​ .unidroit ​ . org ​ / instruments ​ / security​-interests​/cape​-town​- convention/ accessed 2 January 2022. Dean N. Gerber & David R. Walton, (2014). De-registration and export remedies under the Cape Town convention. Cape Town Convention Journal, 3(1), 49–68. Sir Roy Goode, La convention du Cap relative aux garanties internationales portant sur des matériels d’équipement mobiles et son protocole aéronautique, in Le droit du financement des aéronefs (2017). Donald G. Gray & Auriol Marasco, (2018). Cape Town in Canada: Financing the future. The Air and Space Lawyer, 31(1), 17–21. ICAO, Cape town convention and protocol. Ava ilable   at:   ht t ps://www​ . icao ​ . int ​ / sustainability​/ Pages​/Capetown Convention​ .as​px accessed 2 January 2022. jacomo restellini

302  elgar concise encyclopedia of aviation law Grégory Laville de la Plaigne, L’immatriculation des aéronefs et leur radiation, in Le droit du financement des aéronefs (2017). Reuleaux Matthias & Morten L. Jakobsen, (2015). The de-registration of aircraft as a default remedy in aircraft leasing and financing transactions. Air & Space Law, 40(6), 377.

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Protocol to the convention on international interests in mobile equipment on matters specific to aircraft equipment (Cape Town on 16 November 2001). Available at: https:// www​.unidroit ​ .org ​ / instruments ​ /security​ -interests ​ /aircraft ​ - protocol/   accessed 2 January 2022.

87. Interception of Aircraft I. Sovereignty of Airspace Interception of aircraft, as discussed in this chapter, will not include the intercepting and escorting of aircraft in distress as part of a search and rescue operation, as the focus will be on civil aircraft that are intercepted by military aircraft. One of the most important principles of international law is that of sovereignty. The term “sovereignty” denotes, inter alia, mutual recognition of States and political and regulatory independence, and it also includes the duty of non-interference in the domestic affairs of other sovereign States. In addition, Article 2 of the Charter of United Nations states that States shall not threaten or use force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations. In aviation, sovereignty refers to the complete jurisdiction with respect of airspace, namely, to the exclusive competence of a State to exercise its legislative, administrative, and judicial powers within its national airspace (as confirmed by Article 1 of the Chicago Convention). The airspace above a particular State’s land and sea territory is part of that State and within its own airspace a State has the sovereign power to exercise its unlimited and exclusive right to make any decisions related to its airspace, unless that State has made arrangements with foreign States on the use of its airspace by operators of that foreign State. A number of air law conventions regulate the use of the airspace. Furthermore, the exponential growth of international civil aviation accentuated the need for uniform and consistent international rules regulating the safe use of the international airspace. The 1919 Paris Convention on the Regulation of Aerial Navigation affirmed the principle of airspace sovereignty, and the principle is replicated in the 1944 Convention on International Civil Aviation (The Chicago Convention). Article 1 of the Chicago Convention states that “contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.” “Territory” is

defined as “the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State” (Article 2). It is also specifically provided in Article 3(c) that State aircraft of a contracting State do not have the right to overfly or land in another State without having obtained prior permission and that they can do so only in accordance with the terms of the agreed permission. The operation of scheduled international flights are also not permitted to operate over or into the territory of another State without prior permission and in only accordance with the provisions of the authorization granted (Article 6). Every State therefore has the right to regulate the entry of foreign aircraft into its territory and foreign aircraft entering the airspace of a State must adhere to the laws and regulations of that State. Another important provision in this regard is Article 3 (d), which requires contracting States to have “due regard for the safety of navigation of civil aircraft” when they issue rules for their State aircraft. This issue of “having due regard to the safety of civil aircraft” is vital in situations where civil aircraft are intercepted.

II. Interception by Military Aircraft The International Civil Aviation Organization (ICAO) Doc 9433, Manual Concerning Interception of Civil Aircraft, consolidates the ICAO provisions and recommendations regarding the interception of civil aircraft and specifies that civil aircraft may be susceptible to being intercepted by military aircraft in the event that: a) the aircraft observed in or entering the sovereign airspace of a State cannot be positively identified by means other visual inspection i.e. by co-ordination with air traffic services units and/or by secondary surveillance radar; b) the aircraft without proper authorization is about to enter, or has entered, an area in which civil flights are restricted or prohibited; c) the aircraft is a strayed aircraft, namely the aircraft within a States airspace deviates from a designated air traffic services (ATS) route, or a flight plan route outside the ATS route network, without a known or apparent valid reason; or

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304  elgar concise encyclopedia of aviation law d) if it is suspected that an aircraft is engaged in illegal flight and/or transportation of illicit goods or persons, inconsistent with the aims of the Chicago Convention and contrary to the laws of the State’s sovereign airspace entered into. (ICAO Doc 9433 Manual concerning interception of civil aircraft at 1.21) In addition, “interception of civil aircraft may also take place if an aircraft: a) enters the sovereign airspace of a State without proper permission and fails to comply with instructions to land or to leave the airspace; b) enters the sovereign airspace of a State through different positions or routes from those stated in the overflight permission; or c) constitutes a hazard to other aircraft (1.2.2).” 1. Unidentified and Strayed Aircraft In accordance with Annex 2 Rules of the Air, civil aircraft operating international flights must file a flight plan with the appropriate Air Traffic Service containing information regarding the registration, destination, passengers, cargo, emergency communication channels, identification modes and codes, cruising speed and level, routes to be followed, estimated travel time, and fuel endurance (3.3.1). Aircraft that fail to do so or that deviate significantly from a designated Air Traffic Services route or a flight plan route without a known or apparent valid reason for the deviation or that have reported being lost (strayed aircraft) and aircraft that cannot be identified (unidentified aircraft) may be lawfully intercepted (ICAO Doc 9433). 2. Restricted/Prohibited Areas States have the right, based on national law, to establish Air Defense Identification Zones (ADIZs), which are a buffer between international airspace and a country’s territorial airspace in the interest of national security to monitor aircraft flying near its airspace and regulate aircraft entering its airspace. The ADIZ is the defined area of airspace over land or water within which civil aircraft are required to identify themselves (Annex 15). Although such zones are not recognized as sovereign airspace by international law, any sofia mateou and andreas mateou

unauthorized aircraft entering the ADIZ are at risk of being intercepted by military fighter aircraft. 3. Illegal Flights and/or Transporting Illegal Goods or Persons In such cases, the interception must be limited to particular aircraft. In addition, “due regard” denotes that there must be reasonable suspicion that the aircraft is engaging in illegal activity (Williams 2022). The concept of due regard is also evident in the Protocol relating to an amendment to the Convention on International Civil Aviation, namely, Article 3 bis, signed at Montreal on 10 May 1984 and which came into force 14 years later on 1 October 1998 on the realization that invoking the right that contracting States have complete and exclusive sovereignty over the airspace above their territory to justify shooting down civilian aircraft poses a severe threat for aviation. Article 3 bis deals, inter alia, with the problems of interception of civil aircraft in flight and was adopted after the shooting down of Korean Airlines flight 007 on 1 August 1983. KAL 007 was a scheduled passenger flight from Seoul to Anchorage, Alaska, which was shot down by Soviet military jets when it strayed from its scheduled path and entered Soviet airspace. The shooting down, which resulted in the death of all 269 passengers and crew onboard, occurred during the Cold War and Soviet authorities claimed that it was an American intelligence aircraft. Article 3 bis is declaratory of international law with regard to: a) the obligation of States to refrain from resorting to the use of weapons against civil aircraft in flight; b) the obligation, in case of interception, not to endanger the lives of persons on board and the safety of aircraft; c) the right of States to require landing at a designated airport of a civil aircraft flying above its territory without authority or if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of the Convention. The duty to refrain from using force against civil aircraft is one that is imposed on all States and not only on contracting States as it

interception of aircraft  305 is largely accepted that this duty is part of customary international law, which is affirmed and declared in Article 3 bis. The use of weapons against civil aircraft is thus expressly prohibited. However, Article 3 bis acknowledges that there are circumstances in which States may lawfully intercept civil aircraft and expressly provides that, in such cases, the lives of persons onboard and the safety of aircraft must not be endangered and that, when an intercepted aircraft is forced to land, States may use any appropriate means that are in line with the relevant rules of international law and the provisions of the Chicago Convention. However, Article 3 bis does not identify the rules of international law nor does it specify what means will be deemed to be appropriate. The ICAO, established by the Chicago Convention, has adopted 19 Annexes, which set out the Standards and Recommended Practices (SARPs) expected from all 193 State signatories. The standards governing the interception of civil aircraft are outlined in Annex 2, the Rules of the Air, which apply without exception to international airspace and national territories to the extent that they do not conflict with the overflown States regulations. It is specifically stated in Standard 3.8.1 that the interception of civil aircraft shall be governed by the rules issued by the contracting States in compliance with ICAO, and, particularly, with Article 3(d) requirements of having due regard for the safety of navigation of civil aircraft by complying with the provisions of Appendices 1 and 2 and Attachment A of Annex 2. The Standards provide uniform procedures that pilots are required to comply with when their aircraft is being intercepted and specify the procedures for interception, including approach, visual signals, and maneuvering, and sample voice transmissions. Appendix 2 outlines the principles that States must uniformly adhere to, the action that an intercepted aircraft must take, as well as the required radiocommunication, pronunciation, and phrases to be used during interception. The provisions specify that the interception of civil aircraft must be a last resort, and that if an aircraft is intercepted, it should be limited only to identifying the aircraft unless it is necessary to return the aircraft to its filed flight track; direct it outside of national airspace; guide it away from a prohibited, restricted, or danger area; or instruct

it to land at a designated aerodrome. An intercepted aircraft is obliged to immediately follow the instructions given by the intercepting aircraft; interpret and respond to visual signals in a specified manner; notify, if possible, the appropriate Air Traffic Services unit; and attempt to establish radiocommunication with the intercepting aircraft or with the appropriate intercept control unit by making a general call on the emergency frequencies of 121.5 MHz or 243 MHz. The standards contained in Annex 2 are binding on civil aircraft and non-adherence to the ICAO standards on interceptions that aim at providing conformity, consistency, uniformity, and safety in situations where civil aircraft are intercepted, will result in endangering the safety and security of passengers, the crew, and the aircraft. Despite the existing legal framework, the diversion under an alleged false bomb threat on 23 May 2022 of Ryanair flight FR4978, traveling from Athens to Lithuania, to arrest a Belarusian journalist who was on board is a recent example of how one State diverted a civil aircraft by exercising control over another State in a manner inconsistent with international legal principles.

III. Concluding Remarks The interception of aircraft is potentially hazardous and the well-established published rules, procedures, and guidelines allow for aircraft to be intercepted, as a last resort, in specific situations. Military interceptions of passenger airliners are rare, but they do occur in cases of loss of communication; crew incapacitation, as in the case of the tragic Helios 552 accident, where aircraft have strayed offcourse or have entered restricted airspace; in the event of security threats, including reports of bomb threats, explosives, or other suspicious objects onboard; or when authorities believe that the aircraft is involved in some illegal activity. In these situations, military jets will be deployed to identify, communicate with, or divert the aircraft. To minimize the risk, the published procedures and guidelines must be adhered to and complied with. Non-conformity or interception falling outside the specified situations without a justifiable cause will be in violation of a number of international agreements and endanger the safety and security of passengers, the crew, sofia mateou and andreas mateou

306  elgar concise encyclopedia of aviation law Article 2(4) United Nations Charter. DOC 9433, Manual Concerning Interception of Civil Aircraft, DOC 9433-AN/926, 2nd ed, 1990. Available at https://skylibrarys​ .files​ .wordpress​ .com ​ / 2016 ​ / 07​ /doc ​ -9433​ -interception​-civil​-aircraft​.pdf. ICAO, International Standards, Rules of the Air, Annex 2 to the Convention on International Civil Aviation (10th ed July 2005). References Andrew Williams, ‘The Interception of Nnamdi Akani, ‘The Concept of Sovereignty Civil Aircraft Over the High Seas in the in International Law and Relations’ Global War on Terror’ (2006). Available (2019). Available at https://www​ at https://escholarship​.mcgill​.ca ​/concern​ .researchgate​ .net ​/publication ​/335134711​ /theses​ /zg64tr16p accessed 15 March _THE​_CONCEPT​_OF​_ SOVEREIGNTY​ 2022. _IN ​ _ INTERNATIONAL ​ _ LAW​ _ AND​ _RELATIONS accessed 10 March 2022. the aircraft, those on the ground, as well as property. In addition, States resorting to the interception may also potentially be faced with, inter alia, a review by the ICAO Council and the UN Security Council, diplomatic tensions, sanctions, denied overflying rights, and travel bans. Sofia Mateou and Andreas Mateou

sofia mateou and andreas mateou

88. Interlining I. Introduction and Terminology Interlining is a commercial agreement between two airlines through which an airline A is legally and technically entitled to market and sell a flight service operated by another airline. Since the 1950s, interlining has been an essential feature of international aviation and has been a catalyst instrument for the massive development of inter-airline cooperation, which has marked the last decades of international air transport. The International Air Transport Association (IATA) defines interlining as: travel or potential travel involving multiple airlines on a single ticket, bought in a single transaction, using a single currency, which offers a passenger through-checked baggage, and a high degree of flexibility as to choice of timing, routing and carrier.

Interline is considered the most basic form of airline partnership, as it often forms the basis for other agreements, such as code sharing, franchising, and airline alliances. In essence, through interlining, a passenger can book a single itinerary, comprising two (or more) flight segments/airlines with a single reservation. In other words, interline is a relationship between airlines that allows one airline to sell services to a customer that are provided by another airline. Airlines use interline to sell itineraries that they would otherwise not be able to serve alone. From a technical/operational point of view, when interlining, airline will handle check-in and baggage for each other’s passengers. This means that a passenger will have to check-in only once for all the flights. Usually, if two airlines are interlining, they will handle the check-in and baggage for each other’s passengers. That means travelers have to check in only once for all the flights on the itinerary, receive all their boarding passes, and their baggage will be transferred from the first airline to the second airline without having to collect it and drop it off again. This is not a marginal benefit for passengers as, if no interline ticketing agreement exists, there will be two separate tickets, with no coordinated check-in and baggage management.

Benefits are also for the airlines, which may successfully reach more foreign regional or domestic destinations. An example of this is that UAE airline, Emirates, which has signed multiple interline agreements with smaller local carriers to expand its commercial offer and maximize its bookings. Overall, in 2019, it has been estimated that over 8% of passenger segments flown by IATA member airlines have been sold by other airlines. Across the entire airline industry, interline revenue is estimated at over USD 52 billion annually. The proportion of itineraries that involve interline is even higher, at around 10%. These figures show that, although airline cooperation has significantly evolved to the level of full airline joint ventures and global alliances, interlining continues to play a considerable role in today’s international air transport.

II. Relationship between Interlining and Code Sharing Traditionally, cooperation between airlines included a large number of commercial practices, such as pooling of costs and revenues, coordination of tariffs, scheduling of services, ground handling, and maintenance. Even though it is very common that, in the context of global airline alliances, airline members have in place both interlining and code-sharing agreements, to improve their commercial cooperation, the two practices still remain distinct. While through code sharing, the airlines may use flight designator codes to market flight services as their own, in the context of interlining, airline A is not entitled to place its designator code on the flight operated by airline B. Hence, a net distinction between the two airlines remains, as they not only act as two distinct legal entities but also the service provided clearly indicates that it is to be operated by two different airlines. Furthermore, unlike code sharing, which is usually reciprocal (both airlines place their codes on flight services operated by their airline partner), interlining may be “unidirectional” as airline B may not be granted specular rights. By virtue of an interline agreement, therefore, the French air carrier, Air France, is entitled to sell a segment between Kuala Lumpur, Malaysia, and Auckland, New Zealand, operated by the Malaysian air

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308  elgar concise encyclopedia of aviation law carrier, Malaysia Airlines. The same may not be granted to Malaysia Airlines instead. Code sharing not only provides for a significant enhancement of computer reservation systems’ (CRS) priority listing, but also, and most notably, allows the virtual extension of a foreign carrier into a domestic market it cannot serve. In practice, through code sharing, an airline may create a virtually global route network. Caution is necessary, however, when judging the benefits to the traveling public claimed for the practice of airline code sharing, and the elements of quality of service, flight options, and tariffs will be pivotal to any assessment of benefit. The simple fact of a service being code shared will not automatically result in a better air service than an interline or non-stop one. The level of commercial cooperation/ synergy in interlining is, however, considerably limited as opposed to full integration, which is a notable feature of airline joint ventures and international airline alliances, whereby member airlines provide, inter alia, shared airport lounges, common frequent flyer programs, alliance-branded credit cards, shared check-in facilities, etc. Importantly, both practices – interlining and code sharing – do not affect the identity of airlines in terms of ownership and control. Air carriers remain distinct and formally independent, and passengers are at all times able to identify which carrier is operating which flight segment. A fundamental aspect of both practices, in fact, relates to transparency and consumer information. Whether a reservation includes interline agreements or code-shared flights should be made absolutely clear to the customer, not only at the time of purchasing the ticket but as early as possible during the customer’s travel inquiry process. In the European Union (EU), for instance, transparency is a fundamental requisite for interlining and code-sharing arrangements to be valid. The practices of interlining and code sharing are also strongly dependent on the fact that they shall be included in the bilateral Air Services Agreements (ASAs) concluded between the relevant States at hand. This implies that, given the triangular scheme involving generally three countries, all ASAs between such countries shall explicitly allow for the possibility of operating interline air services or code-shared flights. In particular, with respect to code sharing, it is necessary andrea trimarchi

that airlines be designated and authorized to operate the routes included in the code-sharing agreements under the bilateral ASAs concerned. This is further underlined by ICAO, which has even included a provision on code sharing/interlining and cooperative arrangements between airlines in the ICAO Template ASA, which serves as a model for States when negotiating bilateral agreements. In Europe, interlining and code sharing for intra-EU services are generally allowed by virtue of Regulation (EC) No. 1008/2008, which not only abolished the reserve of cabotage and introduce the concept of “Community” (now “Union”) Air Carrier, but also aimed at removing restrictions relating to inter-airline cooperation arrangements. In this regard, Article 15 (4) of the Regulation provides that: “when operating intra-Community air services, a Community air carrier shall be permitted to combine air services and to enter into codeshare arrangements, without prejudice to the Community competition rules applicable to undertakings.” The same provision allows, therefore, European air carriers to combine their intra-EU services with no limitation through code-sharing arrangements or other types of cooperation, such as interlining, for example.

III. The IATA Multilateral and Bilateral Interline Traffic Agreements (MITA) and the IATA Multilateral Prorate Agreement (MPA) IATA has traditionally played a major role in supporting inter-airline agreements. As such, the Association has developed an interline system that covers air transport services worldwide. IATA standards, multilateral agreements, and settlement platforms combine to create the IATA interline framework. This framework facilitates a standard model of interline that is used between IATA member airlines, and by many other airlines. IATA standards support common processes around scheduling, reservations, ticketing, pricing, baggage, departure control, irregular operations, interline billing, and settlement. The IATA interline framework has been a cornerstone of the airline industry for almost as long as the industry has been operating.

interlining  309 The system consists of two main agreements: the Multilateral Interline Traffic Agreement (MITA) and the Multilateral Prorate Agreement (MPA). Based on MITAs, airlines accept – for both passengers and cargo transportation – a standard traffic document to use various modes of transport involved in a route. This forms the basis for a standard interline agreement under which airlines may form an interline relationship. This agreement establishes a legal framework for interline and describes liability and general procedural obligations. The MPA, instead, determines how much an airline will receive for carrying an interlining passenger or cargo on any given flight segment. The members of IATA agree on tariffs and freight rates that are charged for certain routes by the participating airlines. The conditions of the IATA tariffs are also stipulated. The tariff consultations are also intended to enable interlining opportunities and make interlining easier. Note that if these arrangements do not involve an activity of price fixing or coordination, they will not collide with competition rules, such as, for instance, Article 101 (1) of the Treaty on the Functioning of the European Union (TFEU) when it comes to intra-EU agreements.

IV. Liability in the Context of Interlining With the emergence of new forms of interairline cooperation, it was necessary that the legal regime concerning air carrier liability to be adapted to such new scenarios. Both international legal instruments – the Warsaw Convention of 1929 and the Montreal Convention of 1999 – dealing with air carrier liability contain rules that govern “successive carriage” and are meant to cover situations in which the carriage is provided under, for example, interlining and performed, under the same reservation, by several distinct carriers. Both treaties apply only if the carriage is international (i.e., it involves more than one country) and if the carriage is part of a single contract or a single – indivisible – series of contracts. In this context, Article 36 of the Montreal Convention of 1999, which confirms the text of Article 30 of the Warsaw Convention of 1929, states that: “the passenger or any person entitled to compensation in respect of him or her can take action only against the

carrier which performed the carriage during which the accident or the delay occurred.” The liability of the “operating” carrier can be excluded only by express agreement, whereby the first airline has explicitly assumed liability for the whole journey. Liability scenarios may assume a different connotation when code sharing occurs. In this regard, it is essential to highlight that the Conventions mentioned in this section distinguish not only between “successive carriage” and “combined carriage,” but also make a relevant distinction between “contractual or marketing” and “operating or actual” carrier, for regulating liability in case of code-sharing agreements. Indeed, code sharing cannot automatically be equated to successive carriage such as in the usual case with interlining, but that ultimate legal responsibility could nonetheless be determined by the contract of carriage between the passenger and the contracting carrier, depending on the interest of the passenger or its claimants.

V. Interlining under the Scrutiny of Competition Law As noted, governmental intervention or approval are not required when two or more airlines cooperate through interline agreements, or other simple forms of interairline arrangements (e.g., ground handling, schedule coordination). As it falls under the heading of relatively simple marketing arrangements, interlining does not raise per se significant concerns in terms of competition/ antitrust. This is true for pure forms of interlining. The situation changes, however, where airlines engage in large cooperation agreements, also including interlining, which may give rise to anti-competitive arrangements, pooling, price fixing, or abuse of a dominant position. For example, in the EU, the Commission considered, in the context of interlining, that consultations on passengers and cargo tariffs within the IATA system, while potentially falling under Article 101 (1) TFEU, may contribute to the acceptance of interlinable fares and rates to the benefits of air carriers and passengers. The Commission eloquently clarified that consultations must not exceed the aim of facilitating interlining, users must be able to purchase a single ticket combining andrea trimarchi

310  elgar concise encyclopedia of aviation law services of more than one carrier, and change the reservation to another service on the same route operated by another carrier, provided this was permitted by the terms and conditions of the initial reservation. In other words, in Europe, as long as interline occurs under the aegis of IATA, it can be exempted from a rigid competition law scrutiny by the Commission. A further aspect in which the Commission intervened relates to cooperation on CRSs and Global Distribution Systems (GDSs), which are the computerized systems containing information about flight schedules, availability, and fares and through which tickets are issued. In 1991, the Commission found that cooperation among CRSs, which may be a relevant aspect for interlining, did not result in disturbing price competition within the EU but actually resulted in improved distribution throughout the Union.

VI. Conclusions The commercial practice of interlining has significantly characterized the development of international air transport, in particular, in the 1980s and 1990s. Further to providing expansion opportunities to airlines worldwide, interlining has been key to the progressive formation of global airline alliances and more structured agreements (e.g., joint ventures) among foreign airlines. As the airline industry evolved through a fierce competitive model, interlining is gradually leaving the pace to more structured commercial agreements, which aim at the so-called metal-neutrality, that is to say, the level in which both for passengers and for airlines it does not make a difference which airlines is actually operating a certain flight segment. In today’s interline environment, the settlement between airlines is often based on the fare that the customer has paid being shared between airlines. This model made sense when the industry was heavily regulated and airlines charged the same fares, but it makes very little sense in a competitive market. Against this background, the IATA is rethinking its Interline system. The complexity of today’s interline environment limits the involvement of many players, such as lowcost carriers and surface transport operators. The IATA interline framework is a one-sizefits-all model. Airlines often now negotiate and manage many separate agreements that complement or replace a traditional interline andrea trimarchi

agreement. Interline models are also emerging in the market that provide alternatives to traditional IATA interlining. Andrea Trimarchi

References John Balfour, “EC Competition Law and Airline Alliances”, 10 Journal of Air Transport Management 1 (2004). Convention for the Unification of Certain Rules for International Carriage by Air, opened for signature 28 May 1999, 2242 U.N.T.S. 309, entered into force 4 Nov 2003. Convention for the Unification of Certain Rules Relating to International Carriage by Air, opened for signature 12 Oct 1929, entered into force 13 Feb 1933. Convention on International Civil Aviation, opened for signature 7 Dec 1944, 15 U.N.T.S. 295, entered into force 4 Apr 1947, ICAO Doc. 7300. Paul S. Dempsey and Michael Milde, International Air Carrier Liability: The Montreal Convention 1999, (Centre for Research in Air & Space Law McGill University, 2005). European Cockpit Association, Barometer on Pilot Fatigue (2012). Sveinn V. Gudmundsson, “Airline Alliances: Consumer and Policy Issues”, 11 European Business Journal 3, 139–145 (1999). International Air Transport Association (IATA), The Future of Interline: A New Model for Seamless Customer Journeys, White Paper (2019). International Civil Aviation Organization, Implications of Airline Codesharing, Circular No. 269-AT/110 (1997). Anna Masutti, Il Diritto Aeronautico, Third Edition, (Giappichelli, 2020). Pablo Mendes de Leon, Introduction to Air Law, Eleventh Edition, (Kluwer Law International, 2022). John Milligan, European Union Competition Law in the Airline Industry, (Kluwer Law International, 2017). Benjamyn I. Scott and Andrea Trimarchi, Fundamentals of International Aviation Law and Policy, (Routledge, 2020). Jan Walulik (ed.), Harmonising Regulatory and Antitrust Regimes for International Air Transport, (Routledge, 2019).

89. International Air Transport Association

bankruptcy or insolvency procedure or has taken actions that are contrary to the mission and aims of the Association.

III. Mission and Aims

I. Origins and Establishment The International Air Transport Association (IATA, or Association) is an international non-governmental organization of airlines aimed at promoting and developing air transport through the collaboration of the latter with each other and with ICAO, the increase in safety and reliability levels of flights, the contractual standardization by means of the adoption of general conditions of transport, and the concertation of fares and rates. IATA, succeeding the International Air Traffic Association (also known as “old IATA,” operational from 1919 to 1945 and with headquarters in the Netherlands at The Hague), was founded on 19 April 1945 during the International Air Transport Conference held at Havana, and it was incorporated on 18 December 1945 in Montreal through a special Act of the Canadian Parliament, where its head office is still located.

II. Membership IATA is an association, originally open only to airlines that performed scheduled services and, then, starting from 1974, also to categories of non-scheduled operators. In April 2022 IATA included 298 members. To acquire member status, an airline must meet the following conditions: operate an air service for at least two years and have performed for each of those years at least 5-million revenue ton-kilometers and maintain a valid IATA Operational Safety Audit (IOSA) registration. In compliance with the principle of equality, all members enjoy the same rights and privileges, the exercise of which, however, is suspended if an airline is in arrears in payment of dues and interest for more than 90 days. Membership may cease either following a decision by the airline itself, which may submit the resignation at any time with written notice of at least 30 days, or by intervention of the Board of Governors, which provides for termination in the cases listed in Art. V.6.c. of the Articles of Association and, in particular, when the member no longer complies with the criteria for membership or is under a

Purposes, objects, and aims of the IATA are set out both in the Act of Incorporation and in the Articles of Association and as per Art. IV of the latter, they are described as follows: “1. Promote safe, reliable and secure air services for the benefit of the peoples of the world; 2. Provide means of collaboration among Airlines in compliance with applicable law; 3. Cooperate with the International Civil Aviation Organization and other relevant international organizations.”

IV. Structure and Organs IATA has undergone significant changes since its establishment, and, in October 1979, it acquired the current two-tiers structure, which comprises the Trade Association, dealing with technical, legal, financial, traffic services, and agency matters, and the Tariff Coordination, competent, through the conference machinery, for setting of fares, rates, conditions, and charges. Currently, the main bodies of IATA include the General Meeting, the Board of Governors, the Director General, the Corporate Secretary, and nine Advisory Councils. 1. The General Meeting The ultimate authority of the Association rests with the General Meeting, in which each member has an equal right to participate through its appointed representative, and each has one vote. The General Meeting is convened in ordinary sessions at least once every year (inde, “Annual General Meeting” or “AGM”), at a place and time agreed to by a previous AGM, but a Special General Meeting can be held at any time upon either the call of the Board of Governors or the request of one-third of all the members. Each AGM lasts approximately four days and the majority of the members registered at the meeting constitute a quorum for the duration of the same, and, unless there is an express provision to the contrary in the law or in the Articles of Association, decisions are taken by a majority of the votes cast. The AGM has broad responsibilities, listed in Art. XII and Rule 12, respectively, of the

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312  elgar concise encyclopedia of aviation law Articles of Association and of the Rules of Procedure of General Meetings, some relating to IATA internal affairs and others of external relevance and which may have a strong impact on the entire air transport sector. Among them the following stand out: to elect its President and the members of the Board of Governors, based on the nominations provided by the Nominating Committee; to confirm the appointment, term of office, and duties of the Director General; to establish Association’s Conferences and the groups and subordinated bodies considered appropriate; to approve the audited annual consolidated financial statements; and to analyze and discuss major issues facing the members, especially those identified by the Board of Governors, the Advisory Councils, and the Director General. 2. The Board of Governors The Board of Governors, henceforth also referred to as the “Board,” which acts on behalf and in the interest of the Association, is the Executive Committee mentioned in Art. 5(b) of the Act of Incorporation and is made up of the Director General and no more than 31 members elected by the AGM, who hold office for a three-year term, can be elected for a maximum of three consecutive terms, after which a minimum period of two years must elapse in order to be eligible again, and are not entitled to any remuneration. The seats of the Board are allocated on a macro-regional basis, in compliance with a formula dictated by Art. III(3) of the Rules and Regulations of the Board of Governors, and in such a way that in any case each of the seven geographical areas indicated – namely, Africa (except North Africa) and Indian Ocean, Asia-Pacific, Europe, Latin America and Caribbean, Middle East and North Africa, North America, North Asia – a minimum of two seats is guaranteed. The Board meeting must be held at least twice a year, one of which immediately before and in the same place as the AGM. Ten members of the Board and the majority of all Board members are required respectively as quorum for the constitution and the deliberation, provided that, for the purpose of approving the decisions, the members not present at the meeting can still cast their vote in writing or in electronic form. Art. XIV.8. of the Articles of Association confers on the Board numerous and extensive massimiliano musi

powers and functions, some of internal organizational relevance, such as the appointment of the Director General, the Corporate Secretary, and the Chief Financial Officer and the establishment of branches and other offices of IATA; others of decision-making of operational and executive nature, such as the provision of policy directives and guidelines to the Advisory Councils and to the Traffic Conferences, the general management and control of the business affairs, funds, and property of the Association, and the approval of the agenda of the General Meeting, of the Rules and Regulations of the Advisory Councils, and of the Provisions for the Conduct of the IATA Traffic Conferences. To carry out its duties, the Board established the Chair Committee and the Audit Committee. The first, consisting of a maximum of ten Board members, shall hold at least four meetings a year. It is vested with the responsibility to oversee the overall financial performance and governance of IATA, also providing administrative guidance to the Director General and recommending to the Board both the annual budget and the agenda of the General Meeting, and to determine and develop overall industry policy guidelines and the long-term strategy of the Association. The second, made up of five Board members, must meet at least three times a year and is in charge of reviewing the processes and systems concerning the financial reporting and audit, the control and management of financial risks, and the compliance with relevant norms. 3. The Director General As per Art. XV of the Articles of Association, the Director General is the chief executive officer of the IATA, appointed by the Board and confirmed by the AGM. He reports directly to the Board and, among its multiple attributions – also described by Art. VI.(1) of the Rules and Regulations of the Board of Governors – exercises, under the authority of the latter, the supervision, direction, and control over the business and affairs of the Association, having an overall responsibility for the correct and efficient organization and functioning of the same; prepares the budget; advises the Board on relevant issues concerning the air transport industry; expresses and implements the policies of IATA; provides guidance to the Traffic Conferences; can

international air transport association  313 establish Advisory Councils and Working Groups aimed at addressing specific matters of significant interest to the sector; and, finally, carries out all the functions assigned or delegated to him by the AGM or the Board. 4. The Corporate Secretary He or she is appointed by the Board on the recommendation of the Director General, under whose supervision he or she acts as secretary of the General Meetings and of the Board itself. 5. The Advisory Councils They are the so-called Industry Committees that the Director General can establish, subject to the approval of the Board, also determining their rules and regulations and mandates. The Advisory Councils are composed of a minimum of 12 and a maximum of 20 members, appointed by the Director General, who remain in office for a period of up to three years, renewable once for a further consecutive term, after which another three years must elapse before the same person can be eligible again. Each Advisory Council must hold Regular Meetings in person at least twice a year, with a quorum for the constitution equal to the majority of its members, each of whom has one vote, and a quorum for the deliberation corresponding to the majority of the members present. In April 2022, the following nine Advisory Councils were approved by the Board: Cargo; Digital Transformation; Distribution; Industry Affairs; Industry Financial; Legal; Safety, Flight and Ground Operations; Security; Sustainability and Environment. Each of them has the task of advising the Association’s management and the Board on campaigns, policy, and industry issues relating to the subjects included in their mandates, and each can establish, subject to the approval of the Director General, Working Groups made up of not more than ten members, with the necessary expertise to provide ongoing technical advice.

V. Main Competences Since its early days, IATA has played an essential role in making air services and their infrastructures ever more safe, reliable, and secure, offering its contribution to the

International Civil Aviation Organization in its work of drafting the Standards and Recommended Practices, and in the activity of standardizing the conditions to be applied in the relationships between the various suppliers and users of services relating to air navigation. In this regard, it is sufficient to mention the development of the standard contractual clauses, also regarding the tariff profiles, between customers and airlines, of the forms on the basis of which the passenger (tickets) and freight (air waybill) transport documents are issued, and of the agreements concerning handling (an example is the IATA Standard Ground Handling) and agency services. Historically, the most relevant field of intervention for IATA has been that relating to the coordination of tariffs. The 1944 Chicago Convention, in fact, did not contain provisions concerning the fixing of fares and rates, leaving the negotiation of the latter to the national governments in mostly bilateral air services agreements. The first of these, the Air Services Agreement between the United States and the United Kingdom, concluded in Bermuda on 11 February 1946, was subsequently used as a model for many other similar agreements between different countries. They provide that fares and rates have to be agreed between the airlines designated by each party and subject to governmental approval for their entry into force. Governments have therefore relied on the rate-recommending machinery of IATA Traffic Conferences to facilitate the setting of fares and rates to such an extent as to avoid, on the one hand, the risks of excessive competition between carriers and, on the other hand, to benefit customers in having affordable prices applied. As early as 1945, the so-called YY Fares were thus introduced, as IATA multilateral interlineable fares, which, together with the standardization of the conditions of transport contracts, allowed passengers to purchase a single ticket in a single currency, which could also be accepted by an airline other than the one that issued it, giving rise to the phenomenon of interlinging. In recent years, however, the role of the Association in coordinating tariffs, despite falling within the scope of the exemption from European antitrust legislation, referred to in Commission Regulation (EC) No. 1459/2006, was heavily downsized, following the increasingly strong pro-competition instances to the point that the YY Fares were retired on massimiliano musi

314  elgar concise encyclopedia of aviation law 31 October 2018 and progressively replaced by the fares determined by the airlines. The Traffic Conferences machinery, regulated by the Provisions for the Conduct of the IATA Traffic Conferences, still remains operational and in force, as they examine and intervene in all international traffic issues of interest to member airlines. More specifically, the Traffic Conferences are of four main types: the Passenger Procedures and the Cargo Procedures Conferences (each of them comprising the two sub-types of Services and Agency Conferences), which decide on a worldwide basis on matters other than tariffs concerning, respectively, the transport of passengers and cargo (such as, inter alia, passenger and baggage handling, reservations, ticketing, relationships between airlines and agencies, Standards and Recommended Practices for cargo industry), and the Passenger Tariff Coordinating and the Cargo Tariff Coordinating Conferences (dealing with matters relating to, inter alia, operating costs, fare construction, and currency rules), which, unlike the first two, are divided into three geographical macro-areas, which encompass North and South America; Europe, Africa, and the Middle East; and Asia and Australia. There are two classes of members of Traffic Conferences, the voting members, i.e., active members who operate scheduled commercial

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international air transport services, and nonvoting members. The regular meetings of each Traffic Conference must be held at least once every two years and the quorum for their constitution, unless otherwise provided, is one-fifth of the voting members of a Services or Agency Conference and of one-third of the voting Members of a Tariff Conference, while the quorum for the deliberation varies according to the decision to be taken or the measure to be adopted. Massimiliano Musi

References Brancker, J.W.S., IATA and What it Does (A.W. Sijthoff 1977). Chuang, Richard Y., The International Air Transport Association (A.W. Sijthoff 1972). Dresner, Martin and Tretheway, Michael W., ‘The Changing Role of IATA: Prospects for the Future’ (1988) 13 AASL 3–23. Koffler, Warren W., ‘IATA, Its Legal Structure, a Critical Review’ (1966) 32 Journal of Air Law and Commerce 222–235. Masutti, Anna, Il diritto aeronautico (3rd edn, Giappichelli Editore 2020) 44–46. Zunarelli, Stefano and Comenale Pinto, Michele M., Manuale di Diritto della Navigazione e dei Trasporti (4th edn, Cedam 2020) 39–40.

90. International Aviation Law

complete and exclusive sovereignty over the airspace above its territory. Article 17 provides that “Aircraft shall have the nationality of the State in which they are registered.” In addition, the aircraft of States, other than Aviation is a complex system, consisting of scheduled international air services, have the technical, human, environmental, and organi- right to make flights across States territories zational elements. In its common meaning, and to make stops without obtaining prior it is defined as the complex of the aeronautic permission (Article 5). activities involving any type of aircraft. According to Article 6, scheduled These aspects are regulated through inter- operations are prohibited, except with the national conventions and agreements. permission or authorization of the State in Therefore, international aviation law is the whose territory an aircraft wishes to fly. law of aircraft, including their passengers and Therefore, bilateral agreements are cargo. required in order to establish in advance From the first flight in 1903 to World War I, the capacity, frequencies, and tariffs. sector experienced a rapid technological evoluThe very important Bermuda Air Services tion. Then, States recognized the need for inter- Agreement of 1946, between the United national regulation of air navigation. In 1919, States and the United Kingdom, constituted during the Aeronautical Commission’s works a compromise between the liberal American of the Peace Conference, the first International view and the “State-controlled” and protecConvention Regulating Air Navigation was tionist British system. In particular, it was signed in Paris on 13 October 1919. based on the rule of dual approval of tariffs. This text, which was ratified by In 1977 this Agreement was renegotiated 37 countries, represents the first multinational (Bermuda II). legislation adopted at international level. A new Open Skies Agreement was signed Article 1 of the Paris Convention stated by the United States and the European Union that every State has complete and exclusive on 30 April 2007. It came into effect on sovereignty over the airspace above its 30 March 2008. territory. It codified a rule of customary The freedoms of the air, regulated for international law. the first time at international level by the Under Article 2, each contracting State Paris Convention of 1919, were taken up and recognized freedom of innocent passage subsequently developed during the works above its territory to the aircraft of the other of the Chicago Conference. The latter had contracting State. proposed to open the air to the traffic of all This Convention also created the by declaring “five freedoms” or privileges: (1) International Commission for Air Navigation, the right, granted by one State to another State which was a prelude to the establishment of or States, to fly across its territory without an international body for civil aviation. landing; (2) the right, granted by one State to After World War II, on 7 December another State or States, to land in its territory 1944, a new Convention on International for non-traffic purposes; (3) the right, granted Civil Aviation was signed in Chicago by by one State to another State, to put down, in 52 States. It was intended to replace the the territory of the first State, traffic coming Paris Convention and to “create and pre- from the home State of the carrier; (4) the serve friendship and understanding among right, granted by one State to another State, the nations and peoples of the world.” Today, to take on, in the territory of the first State, it has 193 States Parties and represents the traffic destined for the home State of the main multilateral agreement on international carrier; (5) the right, granted by one State to civil aviation. another State, to put down and to take on, in The text consists of 96 articles and four the territory of the first State, traffic coming parts: (1) Air Navigation; (2) the International from or destined to a third State. Civil Aviation Organization; (3) International A final consensus among the States Air Transport; (4) Final Provisions. on these freedoms had not been reached Article 1 of the Chicago Convention reaf- during the Chicago Conference. Therefore, firms Article 1 of the Paris Convention by the five privileges were set forth in two recognizing the rule that every State has separate agreements of 1944, the first one 315

316  elgar concise encyclopedia of aviation law (the International Air Services Transit Agreement) containing (technical) freedoms 1 and 2, and the second one (the International Air Transport Agreement) containing all five privileges. As regards the second part of the Chicago Convention, pending the 26 ratifications required by the Chicago Convention for its entry into force, the Provisional International Civil Aviation Organization (PICAO) was established. In 1947, when the Convention entered into force, ICAO became a specialized agency of the United Nations. Mandatory functions of the ICAO Council, conferred by the Chicago Convention, include the adoption of international Standards and Recommended Practices (SARPs), contained in 19 Annexes. The standards are mandatory requirements, while recommended practices are recommendations. The 17th Annex is entitled “Security Safeguarding International Civil Aviation Against Acts of Unlawful Interference.” According Chapter 1 of this Annex, security means “Safeguarding civil aviation against acts of unlawful interference. This objective is achieved by a combination of measures and human and material resources.” Concerning aviation security, three major international conventions must also be mentioned: the Convention on Offences and Certain other Acts Committed on Board Aircraft, signed in Tokyo on 14 September 1963; the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970; the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed in Montreal on 23 September 1971 (and subsequent Complementary Protocol of 1988). Under the Tokyo Convention, the contracting State in which a hijacked aircraft lands is obligated to “take all appropriate measures to restore control of the aircraft to its lawful commander” and to “permit its passengers and crew to continue their journey as soon as practicable.” According to The Hague Convention, who, during a flight “unlawfully, by force or threat thereof, or by any other form of thereof, or by any other form of intimidation, seizes or exercises control of, that aircraft, or attempts control of, that aircraft, or attempts to perform such act” commits an “offense” for which emilia vermiglio

extradition or prosecution and the imposition of severe penalties is required. Finally, under the Montreal Convention, the following acts are regarded as offenses: (a) acts of violence likely to endanger the safety of an aircraft, (b) destruction of or serious damage to an aircraft or air navigation facilities, and (c) communication of false information that endangers the safety of an aircraft. Lastly, the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation was signed at Beijing on 10 September 2010 (after the 11 September attacks), with the aim to modernize the above-mentioned Montreal Convention of 1971 and its Protocol of 1988. It seeks to criminalize terrorist actions against civil aviation and, in particular, a number of new and emerging threats to the security of civil aviation, including using aircraft as a weapon. This treaty entered into force on 1 July 2018. As regards the air carrier’s liability, at the First International Conference on Private Air Law, held in Paris in 1925, the International Technical Committee of Aerial Legal Experts promoted the adoption of the Convention for the Unification of Certain Rules Relating to International Carriage by Air. It was signed in Warsaw on 12 October 1929, subsequently amended by The Warsaw Convention of 28 September 1955. The Warsaw Convention focused on the air carrier’s liability for death or injury suffered by the passenger (Art. 17); for damage or loss to goods or registered luggage (Article 18) and for delay (Article 19). This system was based on a presumption of liability in the charge of the carrier, unless he provided proof that all reasonable measures had been taken. In any case, airline liability was limited, unless the passenger proved willful misconduct on the part of the carrier. The Protocol of Guatemala City was signed on 8 March 1971 with the aim to amend the 1929 Warsaw Convention. It maintained the presumption of fault and the limits of liability for carriage of goods as agreed at Warsaw in 1929, but it introduced a strict liability system in the case of death or personal injury to a passenger. This Protocol did not come into force. The Montreal Convention of 28 May 1999 replaces the Warsaw Convention by unifying all different international regimes

international aviation law  317 covering airline liability put in place since 1929. The main structure of the Warsaw Convention was roughly maintained in the new instrument. But according to Article 21, for damages resulting from death or injury of passengers not exceeding for each passenger 100,000 Special Drawing Rights (an artificial currency instrument created by the International Monetary Fund), the carrier shall not be able to exclude or limit its liability. The second paragraph of this Article clarifies that, on the contrary, the carrier shall not be liable for damages that exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that: (a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or (b) such damage was solely due to the negligence or other wrongful act or omission of a third party. If in the first case (paragraph 1) the Montreal Convention has deviated from the Warsaw system, in the second case (paragraph 2) it maintains the previous regime. Finally, the liability system for surface damage deserves to be mentioned. This kind of liability is regulated by the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, concluded in Rome on 7 October 1952. This international instrument, that replaces the previous Rome Convention of 1933, aims to “ensure adequate compensation for persons who suffer damage caused on the surface by foreign aircraft, while limiting in a reasonable manner the extent of liabilities incurred for such damage in order not to hinder the development of international civil air transport.” Liability of the operator (the registered owner) of the aircraft is not fault based but is strict and limited, based upon the weight of the aircraft. However, where harm is intentionally caused by the aircraft operator’s employees, liability is not limited (Article 12). According to Article 1, there shall be no right to compensation if “the damage is not a direct consequence of the incident giving rise thereto, or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations.” Emilia Vermiglio

References Antonini, A. ‘La responsabilità del vettore aereo per il trasporto di persone e cose nella più recente evoluzione normativa: protocolli di Montreal, Varsavia-Montreal, regolamento comunitario’ [2000] Diritto dei Trasporti 615. Beaumont, K. M. ‘Need for Revision and Amplification of the Warsaw Convention’ [1949] Journal of Air Law and Commerce 16 Issue 4 Article 3. Boyle, R. P. and Pulsifer, R. ‘The Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft Committed on Board Aircraft’ [1964] Journal of Air Law and Commerce 30 Issue 4 Article 2. Comenale Pinto, M. M. ‘Riflessioni sulla nuova Convenzione di Montreal del 1999 sul trasporto aereo’ [2000] Diritto Marittimo 798. Dempsey, P. S. Public International Air Law, (McGill University 2008). Diederiks-Verschoor, I. H. P. An Introduction to Air Law, (Kluwer Law International 2012). Fragali, M. ‘Regolamento giuridico dell’aviazione e allegati tecnici di Chicago’ [1967] Diritto aeronautico 159. Giannini, A. ‘La convenzione di Chicago 1944 sull’aviazione civile internazionale’ [1946] Riv. dir. comm. 83. Grigoli, M. ‘Danno, VI. Danni a terzi sulla superficie. Dir. nav.’ [1989] Enciclopedia giuridica X 8. Mankiewicz, R. H. ‘Air Law Conventions and the New States’ [1963] Journal of Air Law and Commerce 52. Mankiewicz, R. H. ‘The 1971 Protocal of Gautemala City to Further Amend the 1929 Warsaw Convention’ [1972] Journal of Air Law and Commerce 519. Mankiewicz, R. H. The Liability Regime of the International Air Carrier, (Kluwer 1981). Masutti, A. Il diritto aeronautico, (Giappichelli 2020). McClean, J. D., Balfour, J. M., Gardiner, R., Goh, J., and Margo, R. (eds) Shawcross and Beaumont: Air Law, (Butterworth & Co. Pub. 2010). Mendes de Leon, P. Introdution to Air Law, (Kluwer Law International 2017).

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318  elgar concise encyclopedia of aviation law Mendes de Leon, P. and Werner, E. ‘The Montreal Convention: Analysis of Some Aspects of the Attempted Modernization and Consolidation of the Warsaw System’ [2001] Journal of Air Law and Commerce 66. Milde, M. International Air Law and ICAO, (Eleven International Publishing 2016). Rosafio, E. G. ‘Convenzione di Montreal del 28 maggio 1999: problemi applicativi’ [2004] Diritto del Turismo 10. Ruwantissa, A. ‘A Protocol to Amend the Tokyo Convention of 1963: Some Unanswered Questions’ [2014] Air & Space Law 47. Scott, B. I. and Trimarchi, A. Fundamentals of International Aviation Law and Policy, (Routledge 2020).

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Stephen, J. E. ‘The Montreal Conference and International Aviation Liability Limitations’ [1967] Journal of Air Law and Commerce 554. Tullio, L. (ed.) La nuova disciplina del trasporto aereo. Commento della convenzione di Montreal 28 maggio 1999 (Jovene editore 2006). Tullio, L. ‘Responsabilità per danni a terzi sulla superficie’ [1988] Enciclopedia del diritto XXXIX 1420. Turco Bulgherini, E. La disciplina giuridica degli accordi aerei bilaterali, (Cedam 1984). Weber, L. International Civil Aviation Organization, (Wolters Kluwer 2017). Zunarelli, S. ‘Servizi aerei’ [1990], Enciclopedia del diritto XLII 347.

91. International Civil Aviation Organization I. Origins and Establishment The International Civil Aviation Organization, henceforth also referred to as “ICAO” or “Organization,” is a permanent international intergovernmental organization (IGO) and a Specialized Agency of the United Nations, with functions of supervision and control as well as preparation of technical standards. It was established on 4 April 1947, with the entry into force of the Convention on International Civil Aviation, henceforth also referred to as the “Convention”, adopted and signed in Chicago on 7 December 1944, on the last day of the International Civil Aviation Conference. Its permanent seat is in Montreal, although the following seven Regional Offices have been established over the years: European and North Atlantic in Paris; Eastern and Southern Africa in Nairobi, North America, Central America, and Caribbean in Mexico City; South America in Lima; Western and Central Africa in Dakar; Middle East in Cairo; Asia and Pacific in Bangkok. A comprehensive regulation on ICAO’s membership, legal status, aims, objectives, internal structure, and competences can be found mainly in Part II, but also in some provisions of Parts I and III of the Convention.

II. Membership All United Nations Member States, those associated with the UN, and those that remained neutral during World War II, which adhere to the Convention, can become members of the ICAO. This accession is implemented by direct notification to the US government, which, once entered into effect the adherence on the 30th day from receipt of the notification itself, notifies all the contracting States. In this regard, it should be noted that only sovereign States can acceed, thus, international organizations are not admitted. In October 2022 ICAO totaled 193 Member States. The uniform international discipline also identifies cases of suspension and termination of membership (Articles from 93 bis to

95 of the Convention). The first occurs when a State has been suspended from membership in the United Nations and the latter request that it also be suspended from the rights and privileges inherent in being a member of the ICAO. The second can take place upon the occurrence of the following circumstances: a year has passed since the State denounced the Convention, notifying the depositary, namely the government of the United States of America, which informed the other contracting States; the State has been excluded from the United Nations, or the United Nations General Assembly has recommended its exclusion; the State has not timely ratified an amendment to the Convention that the Assembly has decided must be ratified within a certain period of time. A Member State, in some specific cases, can be suspended only from voting rights in the ICAO’s Assembly and Council, while retaining all other rights, privileges, and obligations.

III. Legal Status To be able to fully perform the functions that have been assigned to it, ICAO has its own independent legal personality, as emerged from Art. 47 of the Convention, according to which the Organization is attributed legal capacity and even full juridical personality, where this is possible in compliance with the constitution and laws of the individual Member States. With Canada, as host State, ICAO, in order to regulate its legal status, immunities, and privileges, stipulated a Headquarters Agreement on 14 April 1951, which was subsequently replaced on 20 February 1992 by a second agreement, while, medio tempore, on 16 September 1980, a Supplementary Agreement was also concluded, still in force. Under the Headquarters Agreement, the ICAO enjoys the inviolability of its premises, as well as immunity from suits and judicial processes, in the same way as a foreign sovereign State. In addition, the representatives of Member States and senior staff are offered the same privileges and immunities guaranteed to diplomatic agents so as to ensure the independent exercise of their functions. Furthermore, by virtue of the agreement stipulated with the United Nations, which entered into force on 13 May 1947, ICAO is recognized as a UN Specialized Agency.

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IV. Aims and Objectives Art. 44 of the Convention provides a detailed list, albeit it ends up identifying wide-ranging areas of intervention, of the aims and objectives of the ICAO, from which emerges the centrality of safety and security, regularity, economic sustainability and efficiency of air services, avoidance of discrimination and equality of opportunity among States, on which the entire Convention is based, as can be seen by reading its Preamble. In particular, it is specified that ICAO shall: develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as to (a) Insure the safe and orderly growth of international civil aviation throughout the world; (b) Encourage the arts of aircraft design and operation for peaceful purposes; (c) Encourage the development of airways, airports, and air navigation facilities for international civil aviation; (d) Meet the needs of the peoples of the world for safe, regular, efficient and economical air transport; (e) Prevent economic waste caused by unreasonable competition; (f) Insure that the rights of contracting States are fully respected and that every contracting State has a fair opportunity to operate international airlines; (g) Avoid discrimination between contracting States; (h) Promote safety of flight in international air navigation; (i) Promote generally the development of all aspects of international civil aeronautics.

V. Organs The main bodies of ICAO include the Assembly, the Council, the Air Navigation Commission, the Secretariat, and the Legal Committee. 1. The Assembly The Assembly is intended to be the main policy-setting body of the Organization, even if over the years its role has been progressively eroded by the Council. Each contracting State can participate in the Assembly through its appointed representative, and each has only one vote, in compliance with a principle of substantial equality, regardless of its size in terms of population, territory, and economic strength. The Assembly meets in ordinary sessions at least once every three years, but extraordinary meetings can be held at any time upon either the call of the Council or the massimiliano musi

request of one-fifth of all the Member States. Each meeting lasts approximately 12 days and the majority of the contracting States and the majority of the votes cast are required respectively as quorum for the constitution and the deliberation. The Assembly has broad powers and duties, listed in Art. 49 of the Convention, among which the following stand out: to elect its own president and the other officers (in particular four Vice Presidents and the Chairmen of its Commissions), as well as the contracting States to be represented on the Council for three years; to create its own rules of procedure, namely the Standing Rules of Procedures; to establish subsidiary commissions if needed (such as the Technical, the Economic, the Legal, and the Administrative Commissions); to vote annual budgets, determine the financial arrangements, review expenditures and approve the accounts of ICAO; to delegate to the Council the powers and authority necessary or desirable; to consider proposals for modifications to the Convention; and to deal with any matter not specifically assigned to the Council. 2. The Council The Council is a permanent body responsible to the Assembly, made up of 36 contracting States elected by the latter, who remain in office for three years. In this election, the Assembly is required to comply with the guiding criterion laid down by Art. 50 (b) of the Convention, according to which it must give adequate representation to the “States of chief importance in air transport,” to the ones “which make the largest contribution to the provision of facilities for international air navigation,” and to the ones “whose designation will ensure that all the major geographic areas of the world are represented on the Council” (since 2004 the Assembly has decided to distribute the seats of the three groups according to the ratio 11-12-13). The Council elects its President, who represents it, does not have the right to vote, and can be reelected, as well as, from among its members, one or more Vice Presidents (usually three). Furthermore, it appoints the Air Transport Committee, establishes the Air Navigation Commission and other Committees, such as Finance, Technical Cooperation, Joint Support, and Personnel.

international civil aviation organization  321 The Council holds three sessions a year, at regular intervals, each of them divided into two parts, the so-called Committee Phase and the Council Phase, and the quorum for resolution is the majority of the members. Articles 54 and 55 of the Convention confer on the Council numerous functions of a legislative, administrative, and judicial nature, divided, respectively, into mandatory functions and permissive functions. Among those pertaining to the first group, the following are mentioned: the submission of annual reports to the Assembly; the appointment of the secretary general; the administration of the finances of the ICAO; the collection, examination, and publication of information relating to the advancement of air navigation and the operation of international air services; the reporting of infractions to the Convention; the adoption of international Standards and Recommended Practices (inde, “SARPs”); and the settlement of disputes between Member States. 3. The Air Navigation Commission Composed of 19 members, appointed by the Council from among persons nominated by contracting States in their capacity as experts with qualifications and experience in the science and practice of aeronautics, the ANC is an eminently technical body, whose main task is to study and recommend to the Council the adoption of amendments to the Annexes to the Convention. 4. The Secretary General and the Secretariat The chief executive officer of the ICAO, appointed by the Council, is the secretary general, who heads the Secretariat. The latter, divided into five Bureaus, is made up of about 700 staff members, considered as international civil servants, four-fifths of whom operate at the permanent headquarters of ICAO in Montreal, while the others are distributed among the seven Regional Offices. The Secretariat carries out its activities in favor of the ICAO bodies and contracting States, preparing the necessary documentation, carrying out studies and analyses on some specific issues, and offering translation services. 5. The Legal Committee It is a permanent committee, constituted by the Assembly in 1947 and responsible to the

Council. Each contracting State appoints a legal expert, with one vote, to represent it on the Committee. Its functions consist both in advising and in making recommendations to the Council and to the Assembly on matters relating to the interpretation and amendment of the Convention and to public and private air law, and in preparing draft international conventions and presenting the related reports and recommendations.

VI. Main Competences 1. Adoption of SARPs and PANS Art. 54 (l) of the Convention attributes to the Council the so-called quasi-legislative function of adopting SARPs, which take the form of Annexes to the Convention and which find a more complete regulation in Articles 37 to 42 and 90. Art. 37 provides a list, to be considered open, of the subjects that can be addressed in the SARPs, after specifying that “Each contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services,” thus revealing how they lack the fully binding normative force of the articles of the Convention, so much so that they do not require a ratification. Nevertheless, they still retain a legal significance to the extent that if a contracting State finds it impracticable to comply in all respects or to bring its own regulations or practices into full accord with them, it must immediately notify ICAO (Art. 38). The Council adopted 19 Annexes, keeping them constantly updated over the years. Each Annex has a uniform structure, consisting of three sections, the Definitions, the Standards and Recommended Practices, and the Appendices, and its adoption requires the vote of two-thirds of the members of the Council, at a meeting called for that purpose, and shall come into force within three months after its submission to the contracting States, unless expressly disapproved by the majority of the latter. The definition of “Standard” and “Recommended Practice” can be found in Assembly Resolution A36-13, Appendix A, according to which they are “any specification for physical characteristics, configuration, massimiliano musi

322  elgar concise encyclopedia of aviation law material, performance, personnel or procedure, the uniform application of which is recognized as necessary,” in the case of the first, or “as desirable,” in the case of the second, “for the safety or regularity of air navigation and to which contracting States will conform,” in the case of the Standard, or “will endeavor to conform,” in the case of the Recommended Practice. In addition to the SARPs, the Council has approved also five Procedures for Air Navigation Services (PANS), which comprise operating practices and technical material, among which can be mentioned the PANS-Aircraft Operations, the PANS-Air Traffic Management, and the PANS-ICAO Abbreviations and Codes. 2. Development and Adoption of International Conventions Although the Convention does not formally assign to ICAO the task of drafting, proposing, and adopting international air law instruments, over the years the Organization has assumed a central role in this regard in practice. The Assembly Resolution A31-15 (which has replaced the previous ones on the subject) provides, in fact, a procedure for the approval of draft conventions, which, according to the different phases in which it is declined, involves, based on their competences, the Secretariat, the Legal Committee, and the Council, and which ends with the convening of a Diplomatic Conference for the possible adoption of the text of the international instrument by the contracting States, to which the draft had been timely transmitted and that can approve it with a two-thirds majority. 3. Judicial and Quasi-judicial Functions The Council is entrusted, as per Art. 84, with the task of settling disputes between Member States concerning the interpretation

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or the application of the Convention and its Annexes. In carrying out this role, it acts as a judicial body and shall comply with the Rules of Procedure for the Settlement of Differences (ICAO Doc. 7782/2) and its decision may be appealed either before an ad hoc arbitral tribunal or before the International Court of Justice. Furthermore, in light of Art. 54 (n), the Council assumes a quasi-judicial function in resolving the dispute or the difference expressed in a complaint (not made under Art. 84) submitted by one contracting State against another one. In this case, it shall apply the Rules of Procedures for the Council and can intervene by making statements or recommendations or issuing a resolution. Massimiliano Musi

References Buergenthal, Thomas, Law-Making in the International Civil Aviation Organization (Syracuse University Press 1969). Cheng, Bin, The Law of International Air Transport (Stevens & Sons Ltd. 1962). Groenewege, Adrianus Dick, Compendium of International Civil Aviation (3rd edn, International Aviation Development Corporation 2003). Masutti, Anna, Il diritto aeronautico (3rd edn, Giappichelli Editore 2020) 25–31. MacKenzie, David, ICAO: A History of the International Civila Aviation Organization (University of Toronto Press 2010). Milde, Michael, International Air Law and ICAO (3rd edn, Eleven International Publishing 2016) 129–209. Weber, Ludwig, ‘Convention on International Civil Aviation – 60 Years’ (2004) 53(3) ZLW 289–311. Weber, Ludwig, International Civil Aviation Organization (ICAO) (2nd edn, Wolters Kluwer 2015).

92. International Conventions See entries: 36. Annexes to the Chicago Convention; 46. The Beijing Convention (2010); 51.  The Cape Town Convention and Aircraft Protocol; 52. The Chicago Convention (1944); 77. The Geneva Convention (1948); 79. The Guadalajara Convention (1961); 80. Guatemala City Protocol (1971); 81. The Hague Convention (1970); 82. The Hague Protocol (1955) amending the Warsaw Convention (1929); 108. The Montreal Convention (1999); 119. The Paris Convention (1919); 128. The Rome Convention (1952) on Damage Caused by Foreign Aircraft to Third Parties on the Surface; 153. The Warsaw Convention (1929)

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93. Jurisdiction in Contract of Air Transport Cases

In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier ‘s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.

I. Overview The criteria to determine the competent court to hear claims related to transnational air carriage contracts are provided by Article 33 of the 1999 Montreal Convention, governing the carrier’s liability in case of death and injury of passengers, damage to baggage, damage to cargo, and delay in the carriage by air of passengers, baggage, or cargo. The Convention is most likely not applicable to flight cancellation, denied boarding or bumping, because such rules apply to “carriage by air.” Most courts accept the point of view that flight cancellation and denied boarding occur before boarding, and, hence, before the process which is termed “carriage by air. (Dempsey and Johansson, 2010, p. 213 ff.)” At the European Union (EU) level, a complementary regime of compensation is provided by Regulation (EC) No. 261/2004. Since passengers are entitled to seek remedies under both the 1999 Montreal Convention and the EU regulatory framework, the criteria for identifying the competent court to receive claims based on Regulation 261/2004 will also be addressed.

II. Article 33 of the 1999 Montreal Convention Article 33, paragraph 1 of the 1999 Montreal Convention, reproducing almost verbatim Article 28 of the 1929 Warsaw Convention, stipulates as follows: An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.

It thus provides four different fora at the choice of the claimant. Furthermore, the negotiators of the Convention created a fifth jurisdiction for claims related to a passenger’s injury or death, which was not provided by the 1929 Warsaw Convention. Pursuant to Article 33, paragraph 2:

The aim was to increase the fora among which the plaintiff could choose for claims concerning a passenger’s injury or death. However, the extent of the fifth jurisdiction criterion has been widely debated. According to Article 33, paragraph 4, “[q]uestions of procedure shall be governed by the law of the court seized of the case.” It bears noting that this provision has given rise to a number of court cases concerning the applicability of the common law procedural principle of the forum non conveniens, i.e., if a court may rely on paragraph 4 in order to dismiss its jurisdiction based on such a principle (as did, for instance, a US court in a case that followed a flight crash in 2005 and involved the French Cour de Cassation: In re West Caribbean Airways, S.A., 619 F. Supp. 2d 1299 (S.D. Fla. 2007); see Mendelsohn and Ruiz, 2012; Johnson, 2014, p. 389 ff.). Under Article 49, the rules on jurisdiction contained in the 1999 Montreal Convention are mandatory and any clause to the contrary in an air carriage agreement is null and void. This provision thus precludes any effect on agreements on prorogation of jurisdiction entered into between the passenger and the carrier involving the choice of a forum different from the ones identified by the Convention. 1. The Criteria Provided by Article 33, Paragraph 1 The criteria of the domicile of the carrier and the place where it has its principal place of business might generate a number of uncertainties. Indeed, the notion of domicile may indicate different places depending on whether one considers either civil or common law systems. In the former, the domicile has the meaning of the ordinary residence of the carrier, where the airline conducts its operational business. In the latter, it also refers to

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jurisdiction in contract of air transport cases  325 the company’s place of incorporation, regardless of the center of its commercial activities (Carbone, 2000, p. 9). The third criterion, i.e. the place where the carrier has a place of business through which the contract has been concluded, has been widely interpreted by the Italian Supreme Court in cases of air transport contracts concluded online. The Court started from the assumption that the dematerialized nature of the agreement makes it difficult to identify the place where the contract was concluded. Such a place was then determined to be the place where the purchaser received the carrier’s acceptance of the contract proposal made by the former by placing the order online and, most likely, the remuneration. According to the Court, this place should be identified in the purchaser’s domicile (Corte di cassazione, no. 18257/2019). This interpretation is inspired by the quest for special protection for the passenger (intended as the weaker party). Finally, the place of destination in a round trip ticket has been interpreted as the place of departure of the journey, having thus regard to the entire transportation contract. This interpretation had initially regarded the corresponding provision of the 1929 Warsaw Convention, and it was later confirmed for the 1999 Montreal Convention (Tompkins, 2007, p. 225 ff.; Dettling-Ott, 2010, para. 58). The identification of the place of destination has to be undertaken taking into account the provisions of the agreement entered into between the carrier and the passenger, regardless of any change of the actual destination due to external circumstances beyond the parties’ control, such as adverse weather conditions. 2. The Fifth Jurisdiction The provision of the fifth criterion for claims arising from the death or injury of a passenger, which was promoted by the United States, has been inspired by the recognition that the adequacy of the determination of damages depends largely on the criteria used by the competent court. From this perspective, the criteria provided by the law of the place where the passenger has its permanent residence are the most proper ones in order to evaluate the living standards of the passengers, needed for assessing the damages (Carbone, 2000, p. 6 ff.). Article 33, paragraph 2 of the 1999 Montreal Convention may be regarded

as a compromise clause. In this regard, the court of the passenger’s place of residence is competent to hear the claims provided that two conditions are met. First, the passenger has to have his or her principal and permanent residence in that place at the time of the accident, regardless of his or her citizenship. Second, the carrier must have at least a minimum level of commercial presence in such a place, either directly or through a commercial agreement with another carrier. The meaning of the expression commercial agreement is explained in the following paragraph 3, providing that “‘commercial agreement’ means an agreement, other than an agency agreement, made between carriers and relating to the provision of their joint services for carriage of passengers by air.” As noted by Whalen (2000, p. 21 ff.), the formulation of Article 33 may constitute a source of litigation for at least two reasons. First, the definition of commercial agreement could result in excluding code share flights from the scope of the fifth jurisdiction. In code share arrangements, the contracting carrier and the operating one do not perform a joint service. From the passenger’s viewpoint, “[t]he service is considered the ‘service’ of the contracting carrier, albeit performed by a substitute operating carrier” (Whalen, 2000, p. 22). Second, it is unclear whether, in cases of both passenger injury (or death) and other claims (such as baggage loss), the passenger is entitled or not to invoke the fifth jurisdiction for both the claims.

III. The EU Perspective The 1999 Montreal Convention was concluded by the European Union (EU) with Council Decision of 5 April 2001, thus becoming part of the EU law. Accordingly, its provisions may be subjected to preliminary ruling proceedings of the Court of Justice of the EU (CJEU). Nonetheless, for flights departing from an airport located in the territory of an EU Member State, Regulation 261/2004 also applies to delay, denied boarding, and cancellation of flights. The latter has established standard rules on compensation and assistance to passengers following the occurrence of such events (Prassl, 2013, p.330 ff.). The compensations provided by Regulation 261/2004 are different from the damages that can be claimed under the 1999 Montreal marco argentini

326  elgar concise encyclopedia of aviation law Convention. In particular, as highlighted by the CJEU in IATA (case C-344/04): Any delay in the carriage of passengers by air, and in particular a long delay, may, generally speaking, cause two types of damage. First, excessive delay will cause damage that is almost identical for every passenger, redress for which may take the form of standardised and immediate assistance or care for everybody concerned, through the provision, for example, of refreshments, meals and accommodation and of the opportunity to make telephone calls. Second, passengers are liable to suffer individual damage, inherent in the reason for travelling, redress for which requires a caseby-case assessment of the extent of the damage caused and can consequently only be the subject of compensation granted subsequently on an individual basis.

Whereas Regulation 261/2004 provides remedies for the former, the 1999 Montreal Convention concerns the latter. The possibility to ask for both remedies is expressly allowed by Article 12 of the EU Regulation, according to which it “shall apply without prejudice to a passenger’s rights to further compensation.” On the one hand, the CJEU has stated that the court having jurisdiction over the claims concerning the compensations requested according to Regulation 261/2004 has to be identified on the basis of the criteria established by Regulation (EU) No. 1215/2012 (Brussels I bis) (Rehder, case C-204/08; Flight Refund; case C-94/14; Guaitoli, case C‑213/18; Libuše Králová, case C-215/18). On the other hand, the competent court to hear claims on further damages has to be determined according to the ordinary criteria provided by the 1999 Montreal Convention. On a procedural level, the passenger can ask for both remedies simultaneously pursuant to Articles 67 and 71 of Regulation Brussels I bis. In particular, Article 71 provides that the Regulation “shall not affect any conventions to which the Member States are parties and which, in relation to particular matters,” such as the air transport of passengers, “govern jurisdiction or the recognition or enforcement of judgments.” As there is no provision in the Brussels I bis Regulation concerning the competent forum for for air transport contracts, the CJEU held in Rehder that “air transport consists, by its very nature, of services provided in an indivisible and identical manner from the place of marco argentini

departure to that of arrival of the aircraft.” It thus identified the competent courts in one of the places of departure and arrival. Two elements mitigate the risk of dispersion of forums. First, both the 1999 Montreal Convention and the Regulation Brussels I bis identify the place of destination as a competent forum. As highlighted above, in round-trip tickets the place of destination coincides with the place of departure. Second, Regulation Brussels I bis provides that, if two or more actions pending in the courts of different EU Member States “are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings” (Article 30(3)), “any court other than the court first seised may stay its proceedings” (Article 30(1)).

IV. Arbitration According to Article 34 of the 1999 Montreal Convention, parties are entitled to submit the case to an arbitral tribunal for disputes related to contracts of carriage of cargo only (see Punzi, 2006, p. 330 ff.). In this cases, if the parties choose arbitration, “[t]he […] proceedings shall, at the option of the claimant, take place within one of the jurisdictions referred to in Article 33” (Article 34, paragraph 2), and the “arbitration tribunal shall apply the provisions of this Convention” (paragraph 2). Therefore, it is not possible to arbitrate cases concerning passenger air carriage contracts. Most States do not permit arbitration for disputes concerning injuries or death. Marco Argentini

References Allan I. Mendelsohn and Carlos J. Ruiz, ‘The United States vs. France: Article 33 of the Montreal Convention and the Doctrine of Forum Non Conveniens’, 77(3) Journal of Air Law and Commerce 467–488 (2012). Carmine Punzi, ‘La risoluzione delle controversie concernenti il risarcimento dei danni’, in Leopoldo Tullio (ed), La nuova disciplina del trasporto aereo: commento della convenzione di Montreal del 29 maggio 1999 (Jovene, 2006). Charlotte Thijssen, ‘The Montreal Convention, EU Regulation 261/2004 and the Sturgeon Doctrine: How to Reconcile the Three, 12(3) Issues in Aviation Law and Policy 413–448 (2013).

jurisdiction in contract of air transport cases  327 Eric Johnson, ‘Heads I Win, Tails You Lose: The Illusory Option of Montreal Convention Article 33(1) in West Caribbean Airways’, 13(2) Issues in Aviation Law and Policy 379–410 (2014). George Tompkins, ‘The Montreal Convention and the Meaning of “Destination” in Article 33(1)’, 32(3) Air and Space Law 224–226 (2007). Jeremias Prassl, ‘The European Union and the Montreal Convention: A New Analytical Framework’, 12(3) Issues in Aviation Law and Policy 381–412 (2013). Paul Stephen Dempsey and Svante O. Johansson, ‘Montreal v. Brussels: The Conflict of Laws on the Issue of Delay in

International Air Carriage’, 35(3) Air and Space Law 207–224 (2010). Regula Dettling-Ott, ‘Article 33 – Jurisdiction’, in Elmar Giemulla and Ronald Schmid (eds), Montreal Convention (Wolters Kluwer, 2010). Sergio M. Carbone, ‘Criteri di collegamento giurisdizionale e clausole arbitrali nel trasporto aereo: le soluzioni della Convenzione di Montreal del 1999’, 36(1) Rivista di diritto internazionale privato e processuale 5–14 (2000). Thomas J. Whalen, ‘The New Warsaw Convention: The Montreal Convention’, 25(1) Air and Space Law 12–26 (2000).

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94. Just Culture (Aviation) I. Incident and Accident and Investigation, Reporting Systems, and Safety Provisions in the International and European Legislative Framework Since the very beginning of manned aviation, accidents were part of aviation. The first accident investigations1 were, for example, carried out in 1852 in France and 1854 in the Netherlands. In 1912 the first independent air accident investigation was carried out by the Royal Aero Club (Van Wijk; [2017]). Following World War I and the technological advances that had occurred, independent aircraft accident investigations institutions were created while passenger traffic was increasing. Non-binding resolutions on aircraft accident investigations were discussed following the creation of the Commission Internationale de Navigation Aérienne (CINA) (Milde; [1984]) and endorsed as recommendations only. On 7 December 1944 ICAO endorsed the Chicago Convention on international civil aviation (1944), henceforth referred to as the Chicago Convention, pursuant to which Article 26 defines the principles of the investigation of accidents. In 1951 the Standards and Recommended Practices (SARPs) were endorsed and published in Annex 13 – Aircraft Accident and Incident Investigation, currently in its 11th edition (ICAO; [2016]). The European Union published, on 21 November 1994, EU Council Directive 94/56/EC establishing the fundamental principles governing the investigation of civil aviation accidents and incidents (repealed) (EC; [1994]). Only accidents and serious incidents needed to be investigated by the designated national authority.2 Minor incidents are not subject to the regulation. An enduring philosophical principle of Annex 13, from its inception, is that the rationale of an accident or incident investigation is not to attribute blame. Additionally, such investigations are considered inadmissible as evidence in judicial proceedings.

However, Member States can and do file differences contra to this. In the 2001 9th edition of Annex 13, ICAO introduced the mandatory character of a reporting system and as a result of this the European Union published Council Directive 2003/42/EC of the European Parliament and of the Council of 13 June 2003 on occurrence reporting in civil aviation (EU; [2003]). An entirely new ICAO Annex, ICAO Annex 19, was published in 2013 (ICAO; [2013]). This annex introduced Safety Management as a systemic approach to managing risk by aeronautical entities. Annex 19 emphasizes the significance of reporting systems in risk management. The global State Safety Programme is an ICAO program: described by ICAO as the management of safety at the State level, this also introduced the management of Safety through Safety Management Systems, reinforcing Annex 19 and restating the essential source of information about deficiencies in the operation of organizations that reporting systems can bring. Therefore, at the global level, ICAO Annex 19 (ICAO; [2013]) (Kovacevic; [2019]) and the State Safety Programme brings into focus the importance of reporting systems to sustaining and improving aviation safety, highlighting the benefit of voluntary reporting systems in particular (as opposed to mandatory reporting systems). Whilst Just Culture is not mentioned or acknowledged in ICAO legislation, Standard 5.3 of Annex 19 emphasizes that “a reporting environment where employees and operational personnel may trust that their training and experience will not be punished is a fundamental of safety reporting.” In 2014, the European Union (EU) introduced provisions for a Union-wide occurrence reporting, analysis, and follow-up of safety occurrences. EU Regulation 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation, amending EU Regulation 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/EC and EU Commission Regulations 1321/2007 and 1330/2007 (EU; [2014]).

II. The Dilemma of Reporting as Technical Reliability of Aircraft Improved Since the beginning of aviation the perception of and research about safety and accidents

328

just culture (aviation)  329 have evolved greatly (Widmer-Kaufmann; [2022]). Where in the beginning of aviation, accidents were assessed through a technical rational perspective, this has changed. Hollnagel (n) describes three eras of the evolution of human factors and systems safety. The first era considered accidents and incidents as functions of technical failure. The second era considers human error and human performance, which developed, particularly as a response to the event at Harrisburg and Three Mile Island. The third era is that of organizational human factors and organizational safety. These are reflected in accident investigation and interventions to prevent accidents. The development and evolution of complex aircraft following World War II and the growth in air transport and the increase in passenger numbers led to immense technical developments, especially the reliability of the technical elements of the aviation system and aircraft design and operation. Errors in either design or induced by human action were the main attributable causes for accidents. As the technical system achieved reliability, this thinking shifted to the human error as the major causal factor of aircraft accidents. Often incompetence, negligence, or complacency by human actors were frequently cited as causes of events. As a consequence, safety interventions to improve safety were adopted to deal with human-caused issues, which became a favored, if not dominant, accident prevention strategy. In 1954, Captain Clarence Sayers noted: “incident reporting schemes aren’t working because pilots fear disciplinary action by the carriers or the government if they reflect dangerous occurrences” (Reynard & Billings; [1954]). Ten years later concerns were still being raised amidst continued concern about practitioners placing themselves in jeopardy by disclosing the events that they were involved in and their experiences (Allen cited in Reynard and Billings; [1996]). These issues were brought into sharp focus after the Portland, Oregon, accident, and again in 1972 and the crash of TWA514 at Mount Weather, Virginia, in December 1974. The event involved an incorrect approach plate, which contributed to the controlled flight crash into terrain. The issues in the approach plate were well known but never reported because of a reluctance to report.

Solutions to this involved confidential open and no-blame reporting processes, which were implemented in various different contexts in different aviation settings. No blame reporting evinced a concern that blameworthy events were not subject to a suitable response as “no-blame” approaches afforded a freedom from sanctions or consequences. Herein lay the dilemma for which a balance was sought between the culpability of practitioners and preserving a willingness to disclose experiences and episodes freely and willingly from which learning about safety in operations that are largely invisible to others within an organization or beyond can be derived.

III. Just Culture James Reason is attributed as the first to coin the term “just culture,” and he describes it as a part of a larger safety culture (Reason [1997]; Pont; [2019]), although there are other claims to antecedence. In 1988, Reason discussed the dilemma and, in so doing, provided one of the first avenues of what later would become known as “just culture.”3 This development also introduced the language of just culture, foundational ideas, and principles that ground the notion, most notably and arguably, that of gross negligence. Reason identified limitations of no-blame reporting cultures. As a solution to this, the idea of a just culture was introduced. Reason was one of the first, if not the first, to coin the term “just culture” in his seminal work Managing the Risks of Organizational Accidents, and he describes it as a part of a larger safety culture (Reason; [1997]). He envisages safety culture to have five components, one of which is just culture. Reason argues that a just culture is not the same as a no-blame culture, but it is a culture where individuals are accountable for their willful misconduct or gross negligence. Reason4 describes a just culture as an atmosphere of trust in which people are encouraged (even rewarded) for providing essential safety-related information, but in which they are also clear about where the line must be drawn between acceptable and unacceptable behavior. An effective reporting culture is therefore underpinned by a just culture in which there exists a line of acceptable practice, a line is more clearly drawn but which the culpability line is more clearly drawn. To this, Reason marc baumgartner and anthony smoker

330  elgar concise encyclopedia of aviation law introduced an algorithm, later to be known as the substitution test, by which an individual practitioners’ actions could be examined and tested against characteristics of the event. Subsequently, Dekker (Dekker; [2012]) provided further avenues of what later would become the widely accepted view by which aviation organizations and the industry conceived Just Culture (each of the three editions of Just Culture by Dekker, developed iteratively the foundational ideas of Just Culture, e.g., “who draws the line?”). In so doing, Dekker recognised that to achieve this in practice, the need existed therefore5 to create or maintain a safety conscious and trusted atmosphere, the introduction and dissemination of an organizational climate that was described by Reason as “an atmosphere of trust in which people are encouraged (even rewarded) for providing essential safety-related information but in which they are also clear about where the line must be drawn between acceptable and unacceptable behaviour.” Dekker (2012) in this iteration of just culture, lays out two views of human error, which can be seen as two ends in the spectrum of the debate on this topic. “The old view,” he states, “sees human error as the cause of incidents. To do something about incidents then, we need to do something about the human involved.” On the other hand, “The new, or systems view, sees human error as a symptom, not a cause. Human error is an effect of trouble deeper in the system.” Although both these points of view can be argued, he writes, “they leave an important question unattended: Can people in your organisation simply blame the system when things go wrong? To many, this logical extension of the new view seems like a cop-out, like an excuse to get defective or irresponsible practitioners off the hook. The new view would seem almost incompatible with holding people accountable.”

IV. Just Culture – Adopted and “Implemented” by Some in Aviation, but Not All An effective reporting culture is underpinned by a “just culture,” in which the culpability line is more clearly drawn. It is in this way that safety culture evolves in pursuit of safety goals and ideals. Synthetically, according to the Reason model, a safety culture has a number of characteristics that just culture supports. In this marc baumgartner and anthony smoker

sense, just culture is not the end form or state of safety culture. It has been understood that just culture requires a set of good practices and safetyrelated attitudes in safety critical workplaces to implement or, in Reason’s ontology, to engineer. A prominent European aviation actor, EUROCONTROL (European Organisation for Safety in Air Navigation), championed the implementation of just culture with its Member States. EUROCONTROL6 has published the essential elements that need to be addressed when developing, implementing, and maintaining a Just Culture in an organization: ● ●

●

●

●

●

● ●

●

Just Culture policy documented; definitions agreed about what is “acceptable” behavior and what is “not acceptable” (Note: these will be specific to, and aligned with, values derived from national, organizational, and professional cultures); sanctions agreed for unacceptable behavior; the process to deal with actions in the “grey area”; Just Culture policy is communicated throughout the organization; reporting systems linked to a Just Culture policy; the fair treatment being applied; breaches of the policy being monitored (e.g., error punished, or violations excused); reports being followed up; actions taken to address error-producing conditions.

Professional staff associations such as IFATCA, IFATSEA, and ECA pursued the widest adoption of just culture, working closely with EUROCONTROL. The early implementations proved how complicated the implementation was to be. Expectations on the part of practitioners were similar to those who were steeped in experience of “no blame reporting culture” for example. Some organizations that sought to adopt just culture found difficulties in navigating the organizational processes around discipline and sanctions for those deemed to be blameworthy and at the time by managers or organizational human resource teams. The experience of aviation practitioners varied too. Especially, where information

just culture (aviation)  331 was disclosed through established reporting mechanisms and duly found their way to the state’s judicial teams. It became apparent that justice had a legitimate interest in just culture and the information that was disclosed. In 2014 the European Union introduced provisions for Union-wide occurrence reporting, analysis, and follow-up of the definition of safety occurrences. The Regulation (EU) No. 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis, and follow-up of occurrences in civil aviation, amending Regulation (EU) No. 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/ EC of the European Parliament and of the Council and Commission Regulations (EC) No. 1321/2007 and (EC) No. 1330/2007. Text with EEA relevance European Legislation therefore introduced, for the first time, a definition of just culture through several legislative provisions. The definition: “Just Culture means a culture in which front-line operators or other persons are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but in which gross negligence, wilful l violations and destructive acts are not tolerated” (EU Occurrence Regulation 376/2014, Article 2, § 12). The definition establishes, similar to Reason’s notion of just culture, that where a practitioner is deemed or adjudged to have been found grossly negligent or violated willfully, then sanctions and consequences are appropriate and responsible recourses to action, consistent with managerial accountability, are called for. In such cases, practitioners are held to account for their actions. Within organizations, the mechanisms for adjudicating and adjudging practitioner’s actions are referred to as organizational justice. In some cases, events and occurrences take place and become of interest to the relevant judicial jurisdictions. To the practitioner, both can be seen to be not in keeping within the spirit and obligations. Cases exist of practitioners being involved in occurrences and incidents, reporting these dutifully, in the spirit of disclosure to better improve the safety of the aviation system.

V. A Delicate Balance between Safety and Justice The main aim of just culture is to protect those disclosing experiences, incidents, and

occurrences – be those with a legal obligation to report or otherwise – who generate safety data and safety information in accordance with certain international norms. ICAO Annex 137 and the cited European legislative act indicate that the sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents, i.e., to sustain or improve safety. It is not the purpose of this activity to apportion blame or liability – this has no place in the basis for disclosure. ICAO (Annex 13 Art. 5.4.1) stipulates that any investigation conducted in accordance with the provision of this Annex shall be separate from any judicial or administrative proceedings to apportion blame or liability. Further, Article 5.128 defines the protection of accident and incident investigation records and affirms that their disclosure or use outweighs the likely adverse domestic and international impact. ICAO does not explicitly protect the reporter. Annex 199 stipulates the principle that the data and information data and information obtained from the reporting system should not be used or purposes other than maintaining or improving safety. This means that the content of the reporting system may not be used in “disciplinary, civil, administrative and criminal proceedings” and may not be published. However, Annex 19 draws an important distinction between mandatory and voluntary reporting. A European Union regulation addressing the relationship between aviation safety investigation and judicial or administrative proceedings was enshrined in EU law through EU 996/2010 Art. 12, Art. 14, and Art. 15. EU 376/2014 Art. 16.6. explicitly indicates that this shall not happen without prejudice to applicable national criminal law. Member States shall refrain from instituting proceedings in respect of unpremeditated or inadvertent infringements of the law that come to their attention only because they have been reported pursuant to Articles 4 and 5. In recent years occurrence reporting has changed in the EU with additional requirements to report incidents with a potential safety relevance now needing to be reported as well. Commission Implementing Regulation (EU) 2015/1018 lists a catalog of mandatory reporting occurrences. Reporting for an employee in aviation has thus become an obligation (EC 996/2010 Art. 9 EC 376/2014 Art. marc baumgartner and anthony smoker

332  elgar concise encyclopedia of aviation law 4). An aviation practitioner failing to report a reportable occurrence under these provisions is in breach of the regulation. Therefore, what was once an event that, when encountered by a practitioner, bore no legal obligation to disclose the event, after EU376/2014 and EU ?2015 entering into legal force. Pont 2019 aim of just culture is to ensure, as part of a positive safety culture in civil aviation, that safety-relevant incidents – incidents that have been brought about without intent or negligence – can be reported without fear of consequences, such as criminal or disciplinary sanctions. In other words, just culture is intended to protect reporters from negative consequences based on their own reporting, barring very specific circumstances. The protection of data and information voluntary reporting is a mandatory standard, whereas in the area of mandatory reporting, the provision is only formulated as a recommended practice. In addition to Annex 19, Annex 13 (Widmer-Kaufmann; [2022], page 218) also contains references to just culture, which then applies to the safety investigation procedure. Finally, the Safety Management Manual devotes an entire chapter to the protection of data and information obtained from the reporting system. While the aviation community works within a framework of ICAO regulations and procedures which undertake the management of safety and risk, these provisions are subverted when there is recourse to law. In the just culture discourse, this relates to “who draws the line of acceptable practice?” This is even more critical for practitioners than “where the line is drawn.” The metaphor of a line by which practitioners’ praxis can be measured against is anathema in contemporary safety thinking, where the line of acceptable behavior is, simplistically, a range of possible acceptable outcomes. The nature of working in complex and uncertain operating environments belies reductionism to binary choices and judgments of these. The reality of this is that tensions arise between safety professionals and practitioners and those exercising judicial rights and privileges in adjudicating judicial process. In the case of just culture, this involves two possible paths – organizational justice and the judicial system per se. marc baumgartner and anthony smoker

VI. How to Bridge the Gap between the Needs of Safety and the Prerogatives of Justice Since 2012, EUROCONTROL, together with Interenationl Federation of Air Traffic Contollers Associations (IFATCA) and European Cockpit Association (ECA), has organized prosecutor expert courses. During Pont 2019, the three-day hands-on EUROCONTROL prosecutor expert courses (PECs) aviation professionals (pilots and ATCOs) and judiciary experts (prosecutors, judges, and attorneys) are brought together to discuss just culture. Selected participants appear on an expert contact list allowing prosecutors to obtain objective information from people with domain expertise when faced with an aviation case. EUROCONTROL established a Just Culture Task Force (JCTF) and organizes JC workshops in EU Member States when requested by the local Air Navigation Service Providers or judicial authorities. This Task Force has published a model policy, a key tool for use by Member States. Further a just culture manifesto was published by the European Commission in 2014 to support the just culture provisions of Eu376/2014. Further national initiatives are taking place where aviation professionals meet judicial officials to discuss the notion of just culture. These include, in Europe, EUROCONTROL publishing a list of prosecutor experts, accredited through training with members of EUROCONTROL Member States judiciaries and drawn from the membership of European aviation professional organizations – IFATCA and ECA. Just culture can be viewed by judicial actors as a means for preference, by virtue of profession, from legal consequences. The balance of accountability to society, in the judicial sense, by those who are found blameworthy outweighs the benefits to society stemming from improved safety. It is, and always will be, justice that draws the line when aviation professionals are adjudged under the prerogatives of justice. In this way, the criminalization of human error is believed to be real for professionals in the aviation industry in Europe.

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VII. So What? Extant at the time that this entry was written, there were a series of incidents that had evolved to criminal proceedings. Within just culture, such paths are rare. For most occurrences and incidents that are reported – mandatory or otherwise – adjudication is undertaken by the organization itself. It is a protocol known in the just culture discourse as organizational justice. This is often considered when an event occurs that invokes just culture provisions, which are managed and adjudicated by managers and human resources teams, sometimes in the way of administrative and disciplinary protocols. For just culture to achieve its aims of making visible that which influences safety, but is hidden or unknown, disclosure of the experiences, incidents, and occurrences, all interested actors, both internal and external, need to develop confidence in just culture and its aims. To achieve this requires commitment to collaboration in ways that many organizations find challenging. It takes time to develop the confidence to realize the potential that just culture holds. This leaves in doubt realizing the potential for the benefits through sustaining or improving safety in the aviation domain. What is also apparent is that the just culture discourse, in European aviation, is polarized around the criminalization of human error through judicial proceedings, within the judicial prerogative, of practitioners resulting from disclosure of safety events. This may have been exacerbated by taking just culture into law through EU376/2014. Gross negligence, as defined and conceived within just culture, frequently is found to have no equal or matching conception in law. EU376/2014 is moot in this respect. A definition is included in the EU rule. However, the most relevant reference to a practitioner’s liability to sanctions once disclosure of an event is in Article 16 (10), Protection of the Information Sources. Here, the protections afforded by the rule (clauses 6, 7, 8) are not applicable in specific and defined circumstances. The clause includes the following exemption form the provisions: ● ●

in cases of willful misconduct; where there has been a manifest, severe and serious disregard of an obvious risk

and profound failure of professional responsibility to take such care as is evidently required in the circumstances, causing foreseeable damage to a person or property, or which seriously compromises the level of aviation safety. It has yet to be tested through the legal process. However, item (b) introduces a context under which disclosure may lead to sanctions and consequences, which, consequentially, may serve to also weaken the potential benefits to safety through disclosure by practitioners.

VIII. Conclusion Just culture, as a concept, was conceived as a solution to the inherent tensions between disclosure of events that have or may have affected safety and the potential consequences of such disclosure through adjudging practitioners’ actions, choices, and decisions. The disclosure of such events holds the potential for better understanding and knowledge of how safety is undertaken and achieved as well as offering new or different insights into unseen or unknown risks. Just culture has yet to resolve these inherent tensions and the discourse remains more focused on accountability than safety. Marc Baumgartner and Anthony Smoker

Notes 1.

Aart A. van Wijk, Aircraft Accident Inquiry in the Netherlands. A comparative Study (Deventer, Kluwer 1974) 87. 2. The definition of major and minor incidents is not formally defined. The EU, in amending EU 376/2014 make the distinction of the category of event: reportable or non-reportable. 3. See Widmer-Kaufmann, p.32. 4. Reason; [1998] pg. 195. 5. See Rudy Pont, Managing a pragmatic Just Culture implementation, (University of London 2019). 6. Eurocontrol, ‘Essential Elements that need to be addressed when developing and maintaining a Just Culture in an organisation’ https://skybrary.aero/ articles/just-culture accessed April 2022. 7. ICAO Annex 13 article 3. 8. ICAO (ICAO, Annex 13, Art. 5.4.1; [2019]). 9. ICAO Annex 13 article 3.

References Sidney Dekker. Foundations of Safety Science, a Century of Understanding Accident and Disasters (CRC, 2019). marc baumgartner and anthony smoker

334  elgar concise encyclopedia of aviation law Sidney Dekker. Just Culture, Balancing Safety and Accountability (Ashgate, 2012). European Union. European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation, amending Regulation (EU) No 996/2010 of the European Parliament and of the Council and repealing Directive 2003/42/EC of the European Parliament and of the Council and Commission Regulations (EC) No 1321/2007 and (EC) No 1330/2007 Text with EEA relevance. European Union. Council Directive Directive 2003/42/Ec of the European Parliament and of The council of 13 June 2003 on occurrence reporting in civil aviation. GAIN (Global Aviation Information Network). A Roadmap to a Just Culture: Enhancing the Safety Environment (GAIN-Global Aviation Information Network, 2004). ICAO. Annex 13 to the Convention on Civil Aviation. Aircraft Accident and Investigation, 9th Edition. article 3.1. (ICAO, 1999). Maria Kovacova et al. Just Culture – Eleven Steps Implementation Methodology for

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Organisations in Civil Aviation – “JC 11” (Transportation Research Procedia 43 2019) 104–112. Michael Milde. Aircraft Accident Investigation in International Law (Air Law IX, 1984) 61. Francesca Pellegrino. The Just Culture Principles in Aviation Law: Towards a Safety-Oriented Approach (Springer Nature Switzerland, 2019). Rudy Pont. Managing a Pragmatic Just Culture Implementation (Unpublished MSc thesis, City University, London, 2019). James Reason. Managing the Risks of Organizational Accidents (Ashgate, 1997). W.D. Reynard, C.E. Billings, E.S. Cheaney, and R. Hardy. The Development of the NASA Aviation Safety Reporting System (NASA Reference Publication 1114, 1986). Aart A. van Wijk. Aircraft Accident Inquiry in the Netherlands. A Comparative Study (Deventer, Kluwer, 1974). Raphal Widmer-Kaufmann. Forschungsstudie zur Just Culture im Auftrag vom Bundesamt für Justiz eingereicht von der Foundation for Aviation Competence (FFAC, 2022) 69.

95. Labor Relations in Aviation I. Key Figures The air transport sector is a major employer and is essential to the global economy. Before the advent of COVID-19, the sector supported 87.7 million jobs worldwide; 11.3 million of these were direct jobs, with 2.7 million located in both North America and Europe. Direct employment included, in particular, crew members, airport operators, Air Navigation Service Providers, engineers of civil aircraft, airport gateway service providers, and restaurants as well as customs and immigration. The remaining 76 million jobs were indirect jobs, largely related to tourism generated by aviation. The COVID-19 pandemic has had a major impact on the aviation sector. By the end of 2021, the sector supported only 43.8 million jobs worldwide, a drop of 50% compared to the pre-COVID-19 period. The number of direct jobs has fallen to 2.1 million in both North America and Europe. Despite these figures, post-COVID-19 forecasts are rather optimistic, and the sector is expected to continue to expand.

II. Global Rules 1. Lack of Harmonization Despite the millions of jobs supported by the airline industry, labor relations between airlines and employees are not governed by globally harmonized rules. These issues mainly are addressed through States’ national laws. One reason for this is the dichotomy between the inherently international nature of air transport and the fact that labor and social law remains essentially a national prerogative, which makes it difficult to assign regulatory responsibilities at a supranational level. 2. The 1944 Chicago Convention Neither the 1944 Chicago Convention (CC44) nor its annexes contain specific provisions on labor law. Indeed, the CC44 and its annexes mainly focus on the harmonization of safety, security, and environmental protection rules in civil aviation. However, certain provisions concerning pilot licensing and flight and rest time may have an impact on the employment relations of crew members. Articles 32 and

33 of the CC44 provide the basis for a uniform worldwide regime for the licensing of aviation personnel. Annex 1 of the CC44 defines the minimum requirements for obtaining, maintaining, and revoking licenses, such as medical conditions, age, or practical experience (Annex 1, § 1.2.6). Besides the safety aspects, the licensing system has major social implications, insofar as the functions subject to certification can be performed only by qualified staff. Therefore, these staff members have considerable leverage in social negotiations, in particular by making use of their right to strike, given the massive impact strikes have on air transport and the economy in general. In addition to Annex 1, Annex 6 of the CC44 requires contracting States to establish rules specifying limitations on flight times and rest periods for crew members (Annex 6, § 4.10). For an operator, this responsibility translates into an obligation to establish a fatigue management program or system that is acceptable to the regulatory authority. Within the EU, Annex III of Regulation 965/2012 contains provisions with respect to flight duty periods, flight time, duty periods, and rest periods of crew members. For instance, the total flight time of a crew member shall not exceed 100 hours in any 28-day period, 900 hours in any calendar year, and 1,000 hours in any period of 12 consecutive calendar months (ORO.FTL.210 (b), Annex III, Regulation 965/2012). Moreover, the maximum duty periods shall not exceed 60 hours in a period of 7 consecutive days, 110 hours in a period of 14 consecutive days, and 190 hours in a period of 28 consecutive days (ORO.FTL.105 (11), Annex III, Regulation 965/2012). Notwithstanding the fact that said rules are more focused on the safety of civil aviation operations than on the protection of employees, they nevertheless indirectly offer some social protections to crew members. 3. Air Services Agreements International Air Services Agreements (ASAs), whose rationale derives from Articles 1 and 6 of the CC44, generally do not contain clauses specific to labor relations. However, in practice, an airline may hire crew members to work at an airline base in a foreign country. Therefore, these crew members reside and work permanently in the foreign country in which they are assigned. To accommodate these special situations, some ASAs may

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336  elgar concise encyclopedia of aviation law contain provisions facilitating the process by which a foreign air carrier may bring in and retain certain foreign employees; for instance, by providing that work permits will not be required. Besides ASAs, States also may enter into other bilateral agreements on air transport issues. For instance, these agreements may address the issue of visas for crew members of an airline based in one State but operating in the other State by waiving visa requirements or allowing multiple entry visas. Labor standards and conditions are crucial elements in the negotiation of ASAs. States sometimes require counterparties to comply with the international labor standards set by the International Labour Organization (ILO). The year 2010 marked a turning point in the EU’s social aviation policy toward third countries through its adoption of an Additional Protocol to the 2007 Open Skies agreement with the United States. This Protocol made various amendments to the 2007 agreement, recognizing for the first time the importance of the social dimension of the agreement and the respect of labor standards contained in the parties’ national legislation. In 2019, the State of Qatar and the EU, and its Member States, initialled an agreement on air transport. The agreement requires both parties to commit to improve social and labor policies, something that existing agreements between Qatar and individual EU Member States had failed to secure. 4. ILO International labor standards established by the ILO are applicable to employment relations in the aviation sector. However, currently, there is no sectoral instrument or tool that specifically addresses employment in the aviation sector, despite the fact that this field is highly internationalized. In 1953, ICAO and ILO signed a Memorandum of Understanding (MoU) giving ILO the possibility to establish a Joint Aviation Committee, with representatives from aviation industry staff and management, to advise ILO on matters within its competence. This possibility did not alter the ability for ILO and ICAO to continue to be represented at the other’s meetings, when appropriate, and to consult regularly to ensure the fullest exchange of information and views on areas of common interest. On many occasions, discussions have taken place between ICAO and ILO with regard to their respective jacomo restellini

responsibilities and to the interests of the two organizations in relation to employment conditions in civil aviation. Safety aspects related to employment fall within the scope of ICAO, while social aspects fall within ILO’s scope, although these two areas are not always easily separable. In the end, discussions within ILO mainly lead to the convening of ad hoc meetings with ICAO officials to discuss employment and working conditions in civil aviation, rather than the creation of a standing joint committee, as originally envisaged in the 1953 MoU.

III. European Union 1. Level Playing Field In the EU, the liberalization of the air transport market has resulted in the harmonization of a large number of air transport rules at the EU level with the aim of guaranteeing a level playing field between air carriers. However, complete tax and social harmonization did not occur in parallel with this liberalization. Each Member State retains the right to draw up its own labor and social security rules, which leads to significant disparities between Member States. These discrepancies may result in infringements of the level playing field between Community carriers. Indeed, airlines may be tempted to choose the advantageous social laws (i.e., labor and social security laws) of a specific Member State to reduce their labor costs. Since 2012, the social security regime applicable to crew members has been based on the concept of home base (Article 11(5) Regulation 883/2012). So far, the case law of the CJEU has offered little clarification of this concept and, in practice, many questions remain. The determination of the labor law applicable to crew members’ contracts is based on the notion of the “place from which the employee habitually carries out his work” (Article 8 (3) Regulation 593/2008). This concept was clarified by the CJEU in 2017 for crew members in Joined Cases C–168/16 and C-169/16, but the lack of convergence with the concept of home base is a cause for concern. 2. Social Dialogue Social dialogue in civil aviation has been the impetus behind a number of texts used to lobby Community institutions on European air transport policy. This joint lobbying is carried out primarily through the Civil Aviation Social

labor relations in aviation  337 Dialogue Committee. Founded in 2000 under the aegis of the European Commission, the Committee brings together a large number of trade union organizations; it should be noted that civil aviation remains one of the sectors in which representative bodies of social partners are the most fragmented. Workers are represented by the European Transport Workers’ Federation (ETF) and for the cabin crew by the European Cockpit Association (ECA). The employers’ organizations sitting on the Committee are: the Airport Council International (ACI-Europe); the Association of European Airlines (AEA), representing the major carriers; the Civil Air Navigation Service Organisation (CANSO) for air traffic controllers; the European Regions Airline Association (ERAA); the International Air Carrier Association (IACA), which represents the leisure carriers; and the International Aviation Handlers Association (IAHA), which represents independent ground handling companies. The Committee was responsible for initiating a large number of joint texts, the vast majority of which are joint opinions geared toward conveying the social partners’ points of view on sectoral policies pursued by European institutions. In particular, these joint opinions relate to flight time, mutual recognition of licenses, and staff training. One of the best-known products of the Committee is the European Agreement on the Organisation of Working Time of Mobile Staff in Civil Aviation, concluded by the AEA, the ETF, the ECA, the ERA, and the IACA in March 2000. This agreement was implemented by Council Directive 2000/79/ EC of 27 November 2000. It offers protection to mobile workers, namely crew members, in addition to the safety provisions accorded under Regulation 965/2012. For instance, the Directive sets the maximum annual working time at 2,000 hours, to be spread as evenly as practicable throughout the year. The Directive limits the annual block flying time to 900 hours (Article 8 (2) and (3) Directive 2000/79/EC). The Directive also introduces the obligation of a minimum paid leave of four weeks per year, which cannot be replaced by allowance in lieu, except if the employment relationship is terminated. In addition, civil aviation crew members are entitled to a minimum of seven local days free of all duty and standby per calendar month and 96 days per calendar year, which

may include any rest periods required by law (Articles 3 and 9 Directive 2000/79/EC). 3. Social Challenges Among the main challenges facing the Committee at the moment are the lack of fair competition at the global level and the advent of new forms of atypical employment in air transport. In the aviation sector, atypical employment refers to all forms of employment or cooperation between a crew member and an airline other than an openended employment contract between the concerned crew member and the airline. Atypical employment usually takes the form of workers hired for a fixed period of time via temporary employment agencies, through the use of the “pay-to-fly” practice, or self-employed workers. These methods allow the airline not to be considered the direct employer, not to pay its pilots in training and not to pay social security contributions and other obligations linked to the status of employer. The emergence of atypical employment relationships in European civil aviation raises two main concerns. First, these new forms of employment likely create job insecurity for crew members, as they offer fewer social protections than typical jobs. They also likely generate a competition distortion between air carriers using these models and those that do not. This distortion may be accentuated depending on the applicable national law, since regulations related to atypical forms of employment vary between Member States. European institutions have debated the subject of atypical employment for some years. As early as 2015, the European Economic and Social Committee warned that the human resources policies practiced by some low-cost carriers could create a risk of a slow descent to the lowest common denominator. In 2016 and 2017, the Airline Coordination Platform (ACP), ECA, and EurECCA expressed their concerns about the circumvention of applicable social laws by some low-cost carriers and the illegal use of certain forms of outsourced employment, which they believe distorts fair competition in the aviation market and leads to social dumping. As early as 2015, the European Commission, aware of these potential abuses, affirmed the importance of creating and maintaining quality working conditions and ensuring fair competition in the air transport sector. jacomo restellini

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IV. Concluding Remark

of European Airlines (AEA), the European Transport Workers’ Federation (ETF), the The growing concern about working and European Cockpit Association (ECA), the employment conditions and the potential European Regions Airline Association precariousness of the situation of crew (ERA) and the International Air Carrier members warrants paying particular attention Association (IACA) (2000) OJ L 302. to developments in this respect in the coming years. Workers themselves are increasingly European Commisssion, Sectoral Social Dialogue – Civil Aviation, Civil Aviation raising their voices in protest against the Social Dialogue Committee. Available at: precariousness of working conditions in the https://ec​ .europa​ .eu​ /social​ /main​ .jsp​ ?cat airline industry. In recent years, strikes by Id​ = 480​ & langId​ = en​ & intPageId​ =1829 crew members have broken out in several accessed 25 April 2022. Member States as a way for workers to demonstrate their disagreement with their Francis Schubert, Le Droit Aérien, (Schulthess Verlag 2017) 111. working conditions. International Air Transport Association, Air Jacomo Restellini Passenger Numbers to Recover in 2024. Available at: https://www​.iata​.org​/en​/ pressroom ​/2022​-releases​/2022​- 03 ​- 01​- 01/ References accessed 25 April 2022. Air Transport Action Group, Aviation: Benefits Beyond Borders. Available at: International Civil Aviation Organization, Manual on the Regulation of International https://aviationbenefits​ .org​ /downloads​ / Air Transport (Doc 9626), (2004) n. 4.7-2. aviation​ - benefits​ - beyond​ - borders​ -2020​ / International Civil Aviation Organization, accessed 25 April 2022. ICAO and the International Labor Air Transport Action Group, Covid-19 Organization. Available at: https:// Analysis Fact Sheet. Available at: https:// appl icat ions​ . icao​ . i nt ​ / post a l h istor y​ / www​ . atag​ . org​ /our​ - publications​ / latest​ icao​ _ and​ _ the​ _ international​ _ labour​ _ -publications​.html accessed 25 April 2022. organization​ .htm accessed 25 April 2022. Charlotte Brannigan and others, Study on Employment and Working Conditions Jacomo Restellini, Labour Relations in Aviation, (Wolters Kluwer 2022). of Aircrews in the EU Internal Aviation Market (2019), 23. Available at: http:// Memorandum of Understanding between the Director-General of the International sitcpla ​ . es ​ / images ​ / Normativa ​ / Study​ - on​ Labour Office and the President of the -employment​ - and​ -working​ - conditions​ Council of the International civil aviation -aircrews- 020419​ .p​ df accessed February organisation, New York, 19 October 2022. 1953. Available on: https://www​ .ilo​ Commission Regulation (EU) No 965/2012 .org​ /global​ /about​ - the​ - ilo​ / how​ - the​ - ilo​ laying down technical requirements and -works​/departments​-and​- offices​/jur​/ legal​ administrative procedures related to air -instruments​ / WCMS​ _ 442247​ / lang-​- en​ / operations pursuant to Regulation (EC) No index​.htm accessed 25 April 2022. 216/2008 of the European Parliament and Regulation (EC) No 883/2004 of the of the Council (2012) OJ L 296. European Parliament and of the Council on Convention on International Civil Aviation the coordination of social security systems (1944). Available at: https://www​ .icao​ .int​ (2004) OJ L 166. /publications ​ / Documents ​ / 7300 ​ _ 9ed ​ .pdf Regulation (EC) No 593/2008 of the European accessed 25 April 2022. Parliament and of the Council on the law Council Directive 2000/79/EC concerning the applicable to contractual obligations (2018) European Agreement on the Organisation OJ L 177. of Working Time of Mobile Workers in Civil Aviation concluded by the Association

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96. Leasing See entries: 20. Aircraft Financing (Dry and Wet Lease); 21. Aircraft Financing (Finance and Operating Leasing; 22. Aircraft Financing (Purchase of Aircraft); 141. Subleasing

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97. Liability See entries: 9.  Air Navigation Services Provider (ANSP); 98. Liability for Accidents; 99. Liability for Damage to Baggage; 100. Liability for Damage to Cargo; 101. Liability for Death and Personal Injuries; 102. Liability for Denied Boarding, Delay, and Cancellation of Flights; 125. Product Liability

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98. Liability for Accidents I. The Montreal Convention Pursuant to article 17, paragraph 1, of the Montreal Convention 1999, Convention for the Unification of Certain Rules Relating to International Carriage by Air, the carrier accepts unlimited liability in the event of the death or injury of passengers deriving from an “accident,” the expression used in the English text (one of six official language versions including Arabic, Chinese, French, Russian, and Spanish). Article 29 excludes the recovery of punitive damages, but there remains the need to establish what exactly is meant by the concept of “accident” resulting in death or lésion corporelle – “bodily injury” – (Dubuc [1991], 45 ff.), which includes compromised physical integrity, however serious or slight (Antonini [2006], 83 ff.; Busti [2006], 76 ff.); and account must also be taken of clinically significant mental damages resulting from events, such as an injury, for example (Zampone [2003], 1021 ff.). This said, a simple emotional disorder, even if unconnected with traumatic circumstances, can lead to an alteration of the brain (Kings v. Bristow Helicopters and Morris v. KLM, House of Lords, 28 February 2002, in Dir. trasp., 2003, 977) or of an organ, as in the case of a serious upset causing myocardial infarction (Rosman v. TWA, New York Court of Appeals, 13 June 1974; conversely, for the alleged irrelevance of such a circumstance to the uniform law in the text applicable at the time, i.e., that of the Warsaw Convention, Desbiens [1992], 85 ff.). Notwithstanding the objections of Italian legal doctrine (Busti [2001], 459 ff.), at all events, there is a persuasive argument in case law that the Montreal Convention system is exclusive and allows no integrations, as reflected in decisions regarding purely psychological disturbances, with no repercussions of a physical nature (Eastern Airlines v. Floyd, US Supreme Court, 17 April 1991; for a reconstruction of the debate, Légier [1993], 123 ff.). Given the regulatory progression that culminated in the Montreal Convention as currently drafted (Whalen [2000], 12 ff.; Mercer [2003], 147 ff.), and its differences from the Protocol of Guatemala City, profiles of purely psychological relevance, without organic repercussions,

are justifiably excluded from the scope of article 17 (Milde [1999], 177 ff.; Weber – Jakob [1999], 340 ff.). The applicability of national law cannot be inferred from these elements, due to the need for a unitary reorganization of the uniform regulatory system, any gaps in which must be resolved internally (for the opposite view, Busti [2000], 466 ff.). However earnestly it may be pursued, the contrary argument diminishes the overall aim of uniform law to arrive at a compact homogeneous regulation, closing up any gaps that there might be within it and making no references to national law. Article 29 of the Montreal Convention emphasizes the need for “any action” to be interpreted under uniform law and this does not leave room for the application of national legislation, as reflected in case law (El Al Israel Airlines Ltd. v. Tsui Yuang Seng, US Supreme Court 12 January1999; Asher v. United Airlines US District Court, Maryland, Southern Division, 29 October 1999; for a critical view, Rosafio [2000], 222 ff.; Comenale Pinto [2006], 611 ff.). There is discussion as to whether damages not related to property might be recoverable, in the event that such significant injuries are due to the fault of the company; notwithstanding the indications of Article 17 of the Montreal Convention, the European Court of Justice has jurisprudentially adopted broad positions, making reference to what is termed “further compensation” in Article 12 in EC Regulation 261/2004 (CJEU 13 October 2011, C. – No. 83/2010, in Maritime law, 2012, 857) and invoking the eventuality of destruction, damage, or delay affecting baggage reclaim (CJEU 6 May 2010, C. – n° 63/2009, in Riv. dir. nav., 2011, II, 267). The compatibility of these broad positions with the perspective of the Montreal Convention is arguable, since the notion of accident undergoes a broader interpretation that is de facto inconsistent with the indications in the text (Vernizzi [2012], 99 ff.). Consequently, despite this focus of European jurisprudence on the area of non-physical harm and damage not affecting the integrity of the person, the restrictive approach is strongly defended by legal doctrine (Antonini [2006], 89 ff.).

II. The Reason of the Accident In any event, there is no question of compensation for damages caused by a factor attributable to the passenger, such as an eardrum

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342  elgar concise encyclopedia of aviation law injury that could occur on landing, unless a malfunction of the aircraft can be proven (Air France v. Saks, US Supreme Court 4 March 1985), if the episode can be linked to a previous illness or, at least, to the susceptibility of the traveller (Goldhirsch [2001], 86 ff.). The same conclusions have been sustained with regard to deep vein thrombosis, a condition known to occur during air travel if a passenger happens to be at risk (Court of Cassation France, 23 June 2011, in Rev. franc. droit aérien, 2011, 202; Deep vein thrombosis and air travel group litigation, House of Lords, 8 December 2005), since the duration of the flight is an objective given and known in advance (Clarke [2006], 187 ff.), consequently the risk can be evaluated beforehand and with full knowledge, as an accepted aspect of air travel. In general, illness worsened by air travel does not fall within the scope of Article 17 of the Montreal Convention (Court of Cassation France, 6 December 1988, in Rev. franc. droit aérien, 1988, 381), especially if there is an abnormal and pathological reaction to ordinary situations. The same ratio applies for a fall caused by mere lack of attention, with no outside interference (Barclay v. British Airways Plc. 2008; T. Marland 2009, 135 ff.), the solution here being self-evident. More arguable is the fact that Article 17 of the Montreal Convention does not apply in the case of a passenger falling due to turbulence, given that, if turbulence is inevitable (Koor v. Air Canada, Ontario Supreme Court of Justice, 12 June 2001; Quinn v. Canadian Airlines International Ltd., Ontario Court, General Division, 30 May 1994), then it should be verified that timely warnings are adopted regarding the need to stay seated (Magan v. Lufthansa, US Court of Appeals, 11th District, 12 August 2003). By contrast, the death of a passenger with a history of illness, having been allocated a seat in the smoking area (in the past, needless to say) despite his express wish to sit elsewhere, and made sick through passive smoking, was considered to be an accident (Olympic Airways v. Husain, US Supreme Court, 24 February 2004, in Dir. trasp., 2006, 603). A breach of precautionary rules such as this could possibly be argued as falling within the concept of “accident” (Comenale Pinto [2006], 603 ff.; Abeyratne [1999], 181 ff.); without wishing to venture into the sphere of medical culture, one might ask how it chiara tincani

would have been possible to demonstrate the causal link, without considering the length of the flight. The same holds true for the spread of infections (Abeyratne [1999], 181 ff.) or for terrorist events enabled or facilitated by a breach of precautionary rules. According to Article 17, paragraph 1, of the Montreal Convention of 1999, the damage must be material, but the conduct that causes it may be omissive in nature, always on condition that the causal link is demonstrated. Article 17 of the Montreal Convention was deemed, however, not applicable in the case of a passenger suffering from a hernia who was given a non-reclining seat (Abramson v. Jal, US District Court California, 19 July 1984).

III. The Failure to Meet Contractual Obligations The concept of “accident” also covers instances of failure to meet contractual obligations that affect the passenger, not least when there is a history of illness (Busti [2006], 65 ff.). This has been recognized, for example, in the case of a sudden rise in cabin temperature occurring without any action on the part of the crew (McCaskey v. Continental Airlines US District Court Texas, 16 August 2001). The same view has been taken for heart failure, if addressed inappropriately and therefore in breach of the corresponding precautionary rule (Gupta v. Austrian Airlines, US District Court Illinois 18 July 2022). Under two controversial decisions, the courts ruled that there was no liability on the carrier for using substances to which the passenger was allergic (Capacchionel v. Quantasr, US District Court California, 5 January 1996) or for serving products containing alcohol (Scala v. America Airlines, US District Court Connecticut, 13 March 2003). With this in mind, the concept of “accident” is secondary in importance to the identification of measures that should be adopted, and therefore shortcomings on the part of the airline (for a different view, however, Cobbs [1999], 121 ff.), as in the bizarre instance of sexual harassment occurring while the cabin crew did nothing, hence the inevitable liability of the carrier (Wallace v. Korean Air, US District Court California, 2nd Circuit, 6 June 2000).

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IV. The Beginning of Liability Logistically and temporally, the concept of “accident” is not confined to an event occurring in transit, as it concerns all stages at which the passenger is inside the aircraft (La Torre [2006], 161 ff.), and in any event, those occurring under the charge of the carrier and his activity, including pre-flight and postflight (Mastrandrea [2006], 77 ff.). Liability does not begin with receipt of the boarding pass but at the moment of joining the queue at the check-in (Mastrandrea [2006], 75 ff.), as with effect from this moment, the passenger comes within the sphere of control of the carrier; all the more reason why the principle of liability should apply to the stages of embarking and disembarking. Conversely, before and after a flight, when simply present in the terminal, the traveler remains outside the sphere of activity of the airline. In the event of a hijacking, liability continues for the entire time spent on the tarmac, in the terminal or at whatever location may be chosen by the hijackers (Air France v. Consorts Teichner, Supreme Court Israel, 22 October 1984, in Rev. franc. droit aérien, 1985, 232). Chiara Tincani

References Ruwantissa I. R. Abeyratne, ‘The spread of tuberculosis in the aircraft cabin – Air carrier liability’, 24 (4/5) Air & Space Law 181–194 (1999). Alfredo Antonini, ‘Il danno risarcibile nel trasporto aereo di persone’, in Aa. Vv., La nuova disciplina del trasporto aereo, edited by L. Tullio, 81–94 (Jovene 2006). Silvio Busti, Contratto di trasporto aereo, in Tratt. dir. civ. e comm., directed by A. Cicu – F. Messineo, then, by L. Mengoni, now by P. Schlesinger (Giuffré 2001). Silvio Busti, ‘La responsabilità per danni alla persona nel trasporto aereo’, in Aa. Vv., Trasporto aereo e tutela del passeggero nella prospettiva europea, edited by L. Masala – E. G. Rosafio 61–104 (Giuffré 2006). Malcom Clarke, ‘Deep vhein thrombosis: A misfortune but not an accident – End of the runway in England’, 11 Uniform Law Review 187–197 (2006). Louise Cobbs, ‘The shifting meaning of “accident” under 17 of Warsaw Convention: What did the airline know and what it had

to do about it’, 24 (3) Air & Space Law 121–127 (1999). Michele Comenale Pinto, ‘Nozione di “incidente” e condotte omissive del vettore e dei suoi preposti nel trasporto aereo internazionale di persone’, Diritto dei trasporti 609–617 (2006). Caroline Desbiens, ‘Air carrier’s liability for emotional distress under Article 17 of the Warsaw Convention: Can it still be invoked?’, Annals Air and Space Law 153–186 (1992). Carroll E. Dubuc (1991), ‘Les dommages et intérets punitifs et la Convention de Varsovie ou l’alchimie judiciaire’, Revue francaise du droit aérien 45–55 (1991). Lawrence Goldhirsch, ‘Definition of “accident”: Revisiting Air France vs. Saks’, 26 (2) Air & Space Law 86–89 (2001). Umberto La Torre (2006), ‘Responsabilità per le operazioni di imbarco e sbarco nel trasporto aereo di persone’, in Aa. Vv., Trasporto aereo e tutela del passeggero nella prospettiva europea, edited by L. Masala – E. G. Rosafio, 153–178 (Giuffré 2006). Gérard Légier, ‘L’application de la Convention de Varsovie par le jurisdictions americaines: evolution de la jurisprudence’, Revue francaise du droit aérien 123–170 (1993). Tim Marland, ‘Court of Appeal does not put a foot wrong’, 34 (2) Air & Space Law 135– 140 (2009). Gerardo Mastrandrea, ‘L’ambito temporale della responsabilità del vettore per morte o lesione del passeggero’, in Aa. Vv., La nuova disciplina del trasporto aereo, edited by L. Tullio, 73–79 (Jovene 2006). Anthony Mercer, ‘Liability of air carriers for mental injury under the Warsaw Convention’, 28 (3) Air & Space Law 147– 162 (2003). Michael Milde, ‘The Warsaw system of liability in the international carriage by air: History, merits and flaws … and the new non Warsaw Convention of 28 May 1929’, Annals Air and Space Law 155–186 (1999). Elisabetta G. Rosafio, ‘In tema di ammissibilità di azioni risarcitorie da parte del passeggero al di fuori della Convenzione di Varsavia’, Diritto dei trasporti 222–229 (2000). Simone Vernizzi, ‘La Corte di giustizia e un caso di volo interrotto’, Responsabilità civile e previdenza 99–111 (2012). chiara tincani

344  elgar concise encyclopedia of aviation law Ludwig Weber – A. Jakob, ‘The modernization of the Warsaw system: The Montreal convention 1999’, Annals Air and Space Law 333–352 (1999). Thomas J. Whalen, ‘The new Warsaw Convention: The Montreal Convention’, 25 (1) Air & Space Law 12–26 (2000).

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Alessandro Zampone, ‘Sulla risarcibilità del danno psichico nel trasporto aereo internazionale di persone’, Diritto dei trasporti 1012–1023 (2003).

99. Liability for Damage to Baggage

The liability of a community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability.

II. Liability

I. Legal Framework In international carriage by air, liability for damage to baggage is regulated under the socalled Montreal Convention (MC99), a multilateral treaty adopted by a diplomatic meeting of ICAO Member States. It was signed in Montreal on 28 May 1999 and it has currently 137 Member States (136 States and the European Union [EU]). The MC applies to all international carriage of persons, baggage, or cargo performed by aircraft for reward whereas, for the purposes of the MC, the expression “international carriage” means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party (Article 1 Para 2 MC). The Montreal Convention entered into force, so far as the European Community is concerned, on 28 June 2004. Recital 1 in the preamble to Decision 2001/539 states: It is beneficial for European Community air carriers to operate under uniform and clear rules regarding their liability for damage and that such rules should be the same as those applicable to carriers from third countries.

Article 1 of Regulation (EC) No. 2027/97 of the counsel of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air, as amended by Regulation (EC) No. 889/2002 of the European Parliament and of the Counsel of 13 May 2002 states: This regulation implements the relevant provisions of the Montreal Convention in respect of the carriage of passengers and their baggage by air and lays down certain supplementary provisions.

Article 3 Para 1 of Regulation No. 2027/97 is worded as follows:

Under Article 17 Para 2 of the Montreal Convention, the carrier is liable for damage sustained in case of destruction or loss of, or damage to, checked baggage upon condition only that the event which caused the destruction, loss, or damage took place onboard the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality, or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents. In Article 17 Para 4 it is clarified that, unless otherwise specified, in the Montreal Convention the term “baggage” means both checked baggage and unchecked baggage. 1. Strict but Limited Liability (Basically) Under Article 17 Para 2 MC, the air carrier has to compensate damage sustained in case of destruction, or loss of, or damage to checked baggage, even if there was no fault on the side of the carrier. Only in the case of unchecked baggage (hand luggage), the carrier is liable only if there was fault on the side of the carrier, including servants or agents. Damage occasioned by delay in the carriage by air of baggage is ruled separately in Article 19 MC. Damage is given if the substance of the object (the case or its contents) is impaired. If the impairment is so serious that the case can no longer be used for its intended purpose, destruction may be assumed. Destruction is in any case to be assumed if the object has been destroyed in its entire substance. A suitcase is lost when the carrier no longer has physical control over the item of luggage and is therefore unable to give the passenger possession of it again. It is not clear how long an injured party must allow the carrier to recover the luggage. However, Article 17 Para 3 stipulates that the loss of baggage may be assumed to have occurred at the latest at the end of the 21st day following the day of scheduled arrival.

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346  elgar concise encyclopedia of aviation law 2. Damage Period According to Article 17 Para 2 MC, the carrier shall compensate the damage if the event causing the destruction, loss, or damage occurred onboard the aircraft. If this is not the case, the carrier is also liable for damage that occurred during the period in which the checked baggage was in the care of the carrier. At most modern commercial airports, baggage is already accepted and weighed by the carrier at the check-in counters in the entrance hall. It is therefore appropriate to let the custody and thus the baggage transport begin at the moment when the passenger or the check-in staff lifts the baggage onto the scales. Even in the event of an off-airport landing (e.g., an emergency landing outside an airport), baggage remains in the care of the carrier. If baggage is unloaded from the aircraft and stored until it is removed, the carrier shall also be liable for any damage or loss occurring during such storage. The carriage of baggage ends when an employee of the carrier or a handling company appointed by the carrier hands over the checked baggage to the passenger. At major commercial airports, the arriving passenger must go to a baggage claim area, which may be entered only by the airport company’s employees, etc., in addition to the passenger and other passengers. The baggage is transported to this area on a conveyor belt, from which the passenger must retrieve the baggage themself. The carrier’s custody ends at the moment the passenger removes the baggage from the baggage conveyor belt, as the passenger has thereby regained custody of the baggage. The carrier is not liable for damage to baggage that occurs, for example, while the passenger has to show the contents of the bag to a customs official. Air carriage ends in any case when the baggage leaves the baggage claim area after it has been accepted. 3. Exclusion of Liability As stated above, under Article 17 Para 2 a strict liability applies in the case of checked baggage. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality, or vice of the baggage. This could be assumed if, for example, a traveler does carry perishable food rainer amann

in his or her suitcase or packs it inadequately and this damages clothing. Furthermore, under Article 20 MC, the carrier shall be wholly or partly exonerated from its liability to the claimant if the carrier can prove that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation to the extent that such negligence or wrongful act or omission caused or contributed to the damage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted only from its fault or that of its servants or agents (Article 17 Para 2 MC). 4. Timely Notice of Complaints Under Article 31 Para 2 MC, in the case of damage, the person entitled to delivery must make complaint to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage. In the case of delay, the complaint must be made at the latest within 21 days from the date on which the baggage has been placed at his or her disposal. Under Article 31 Para 3, every complaint must be made in writing and given or dispatched within the times aforesaid. Under Article 31 Para 4, if no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part. The European Court of Justice (ECJ) has confirmed in its judgment of 12 April 2018 (C-258/16) that Article 31 Para 4 MC must be interpreted as meaning that, within the period referred to in Article 31 Para 2 MC, the complaint must be made in writing, in accordance with Article 31 Para 3 thereof, failing which no action may be brought against the carrier. Further, the European Court of Justice (ECJ) has ruled in this judgment that a complaint recorded in the information system of the air carrier fulfills the requirement of being in a written form under Article 31 Para 3 MC and, also, that Article 31 Para 2 and 3 MC must be interpreted as not precluding the requirement of being in a written form from being regarded as fulfilled in the case where, with the knowledge of the passenger, a representative of the air carrier records in writing the declaration of loss either on paper or electronically in the carrier’s information

liability for damage to baggage  347 system, provided that the passenger can check the accuracy of the text of the complaint, as taken down in writing and entered in that system, and can, where appropriate, amend or supplement it, or even replace it, before expiry of the period laid down in Article 31 Para 2 MC. In the same judgment, the ECJ confirmed that Article 31 MC must be interpreted as not making a complaint subject to further substantive requirements in addition to that of giving notice to the air carrier of the damages sustained. 5. Right of Action In the event of destruction, loss, or damage to checked baggage, the passenger is entitled to make a claim, i.e., the passenger who is being carried on the basis of an air carriage contract with the carrier and who has checked in the baggage. As a rule, this passenger also owns the damaged, destroyed, or lost items. However, the European Court of Justice (ECJ) has ruled in a judgment of 22 November 2012 (C-410/11) that the right to compensation in the event of loss of baggage also applies to a passenger who claims that compensation by virtue of the loss of baggage checked in in another passenger’s name, provided that the lost baggage did, in fact, contain the first passenger’s items. Under the clear wording of Article 17 Para 2 MC, the claim for damages is to be directed against the carrier who, as the contracting party, is initially the correct defendant. Special regulations in Articles 36 and 38 MC apply to successive air carriage and combined carriage (e.g., air carriage and rail carriage). 6. Extent of Compensation/Limited Liability Under Article 22 Para 2 MC, in the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage, or delay is limited to 1,288 Special Drawing Rights (SDR) for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In Article 23 Para 1 MC it is ruled that the sums mentioned in terms of Special Drawing Rights in this Convention shall be deemed to refer to the Special Drawing Right as defined by the International

Monetary Fund. Conversion of the sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the SDR at the date of the judgment. In Article 24 MC it is stated that limits of liability shall be reviewed at five-year intervals. The last adjustment of the limits came into force on 28 December 2019 where the limits of liability for damage to baggage were increased from 1,131 SDRs to 1,288 SDRs. The ECJ has confirmed in a judgment of 9 July 2020 (C-86/19) that the sum provided for in Article 22 Para 2 MC as the limit of the air carrier’s liability in case of destruction, loss, and delay of, or damage to, checked baggage, which has not been the subject of a special declaration of interest in delivery, constitutes a maximum amount of compensation that the passenger concerned does not enjoy automatically and at a fixed rate. Consequently, it is for the national court to determine, within that limit, the amount of compensation payable to that passenger in the light of the circumstances of the case. The passenger has the burden of proof in respect of the contents of the luggage and the extent of the financial loss he or she has suffered. Under Article 22 Para 5 MC, the limits of liability shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants, or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of his or her employment. Therefore, generally, the carrier is strictly liable, but its liability is limited to 1,288 Special Drawing Rights per passenger. Most of the carriers have excluded liability for consequential damages in their General Conditions of Carriage. Furthermore, many carriers rule in their General Conditions of Carriage that certain items must not be carried in checked baggage but only in hand luggage, such as, e.g., mobile phones, tablets, or notebooks. If the passenger does not comply with this, his or her contributory negligence, up to and including sole rainer amann

348  elgar concise encyclopedia of aviation law negligence in the event of loss or damage, is to be assumed (Article 20 MC). 7. Jurisdiction Under Article 33 MC, an action for damages must be brought, at the option of the claimant, in the territory of one of the States Parties, before the court of either the domicile of the carrier or its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination. The ECJ has ruled in a judgment of 7 November 2019 (C-213/18) that Article 33 Para 1 MC must be interpreted as regards actions for damages falling within the scope of that Convention, as governing not only the allocation of jurisdiction as between the States Parties to the Convention but also the allocation of territorial jurisdiction as between the courts of each of those States. Rainer Amann

rainer amann

References Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents. Council  Decision  of 5 April 2001 on the conclusion by the European Community of the Convention for the Unification of Certain Rules for International Carriage by Air, Official Journal L 194, 18/07/2001 P. 0038 –0038. European Court of Justice (ECJ), Judgment of 22 November 2012 (C-410/11). European Court of Justice (ECJ), Judgment of 12 April 2018 (C-258/16). European Court of Justice (ECJ), Judgment of 7 November 2019 (C-213/18). European Court of Justice (ECJ), Judgment of 9 July 2020 (C-86/19). Montreal Convention of 1999, Convention for the Unification of Certain Rules Relating to International Carriage by Air.

100. Liability for Damage to Cargo I. Applicable Legislation 1. The Warsaw Convention of 1929 and the Warsaw System The Warsaw Convention was negotiated during the early years of the aviation industry and, as such, it capped air carriers’ liability limits at a level appropriate for that era. Over the years, several amendments to the Warsaw Convention have attempted to update the liability regimes and raise liability limits. Some of these failed to attract broad adherence, and different Warsaw Parties adopted different amending instruments, resulting in a complex and confusing array of international arrangements. Hence, the Warsaw System consists of the Warsaw Convention of 1929, several protocols (the Hague Protocol of 1955, the Guatemala City Protocol of 1971, and the four Montreal Protocols of 1975), and a supplementary convention (the Guadalajara Convention of 1961), complemented by the European Regulation No. 889/2002 of 13 May 2002 (amending Regulation (EC) No. 2027/97 on air carrier liability in the event of accidents) as well as a number of so-called private agreements, most of which were, in fact, regionally bound agreements between local governments and air carriers. The liability regime under the Warsaw Convention of 1929, as amended by the Hague Protocol of 1955, has a fault-based liability system; this means that the carrier is liable for loss, destruction, or damage (Article 18) or delay (Article 19) of luggage and goods only when this is the result of the fault of the carrier or its agents. However, the carrier is not liable if it proves that it and its agents have taken all necessary measures to avoid the damage or that it was impossible to take such measures (Article 20). 2. The Montreal Convention of 1999 The Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 (the Montreal Convention of 1999), entered into force on 4 November 2003. For its signatories, which include most European States, the European Community itself, and the United States of America, the Montreal Convention

of 1999 replaced the Warsaw Convention of 1929 and its different amending instruments. The new Convention establishes air carrier liability in the case of delay, damage, or loss of baggage and cargo. It unifies all of the different international treaty regimes covering air carrier liability that had developed since 1929 when the Warsaw Convention was signed: it incorporates most of the provisions of existing instruments, combining them into a single package that States must either accept or reject. Hence, the Montreal Convention of 1999 is designed to be a single, universal treaty to govern air carrier liability around the world if global ratification shall be reached: to date, the Montreal Convention has been ratified by 139 States. Therefore, even today the Warsaw Convention of 1929, or rather the Warsaw System, is still applied, in its different combinations of instruments, by many States.

II. Air Cargo Liability Regime The Montreal Convention of 1999 (Article 18) put in place a strict liability regime for air carriers in the event of damage to cargo and baggage during carriage by air. The relevant parts of Article 18 are as follows: ●

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covered events: destruction or loss of, or damage to, cargo (Article 18(1)) and checked baggage (Article 17(2)); liability period: the event which caused the damage has to take place during the carriage by air, in other words, during the period in which the cargo is in the charge of the carrier (Article 18(3)).

Contrary to the Article 25 of the Warsaw Convention of 1929, the Montreal Convention of 1999 does not provide for the carrier to forfeit the benefit of the limits even if the damage is caused by its wilful misconduct, that is an act or omission of the carrier, its servants, or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result, as provided for by Article XIII of The Warsaw Convention of 1955. The only ground for exclusion of liability, by which the carrier may thus be released from the obligation to compensate for damage to cargo, is if such damage is caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation (Article 20), as well as if the damage resulted from the inherent defect, quality, or vice of the baggage (Article 17(2)).

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350  elgar concise encyclopedia of aviation law The following provisions are also relevant: ●

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receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage (Article 31(1)); in the case of damage, the person entitled to delivery must complain in writing to the carrier forthwith after the discovery of the damage and, at the latest, within seven days from the date of receipt in the case of checked baggage and 14 days from the date of receipt in the case of cargo (Article 31(2–3)); if no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part (Article 31(4)); the right to damages shall be extinguished if an action is not brought within a period of two years, to be calculated, determined by the law of the court seized of the case from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived or from the date on which the carriage stopped (Article 35).

Article 19 of the Montreal Convention of 1999 provides for a liability regime that takes us back to the Warsaw System in the event of delay in the carriage by air of baggage or cargo: in the case of delay, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. In the case of delay, the person entitled to delivery must complain at the latest within 21 days from the date on which the baggage or cargo have been placed at his or her disposal (Article 31(2)). 1. Limits of Liability In determining the limits of liability, the weight to be taken into consideration is the total weight of the package or packages concerned, not the total weight of the shipment, unless the loss or damage affects the value of other packages in the shipment (Article 22(4)); to define the total weight to be taken into account for the calculation, reference should be made to the air waybill provided for by maurizio corain

Article 4(1) or the baggage identification tag provided for by Article 3(3); if air waybill has not been issued, it should be made reference to any other means that preserves a record of the carriage to be performed (Article 4(2)). A carrier may agree to higher limits of liability or to no limits whatsoever (Article 25). However, any provision attempting to set a lower limit shall be null and void and the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of the Montreal Convention of 1999 (Article 26). In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage, or delay is limited to a sum of 17 Special Drawing Rights per kilogram, as provided for by Article 22(3) of the Montreal Convention of 1999 in its original version (which was the version in force before the subsequent limit reviews). Nonetheless, the consignor has the option to make, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination (Article 22 (3)). In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage, or delay is limited to 1,000 Special Drawing Rights, as provided for by Article 22(2) of the Montreal Convention of 1999 in its original version (which was the version in force before the subsequent limit reviews), for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case, the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination. The limits of liability provided for by Article 22 may be increased by the court seized of the case, in accordance with its own law, by an amount equivalent to the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest (Article 22(6)). Nonetheless, the foregoing increase shall not apply if the amount

liability for damage to cargo  351 of the damages ruled by the court, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action if that is later. As a further clarification, reference should be made to Article 29 of the Montreal Convention of 1999, by virtue of which any action for damages, however founded, whether under the Montreal Convention of 1999 or in contract or in tort or otherwise, can be brought subject only to the conditions and such limits of liability as are set out in the same Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights; if any action is made, punitive, exemplary or any other non-compensatory damages shall not be recoverable. The same rules dedicated to the air carriers, provided for by the Montreal Convention of 1999, also apply to its servants and agents, if they prove that they acted within the scope of their employment: such servants and agents, therefore, will be able to benefit from the liability (but not only) regime provided for by the Convention (Article 30(1)). Furthermore, the aggregate of the amounts recoverable from the carrier, its servants, and agents shall not exceed the limits provided for by the Montreal Convention of 1999 (Article 30(2)). 2. Limits of Liability Review The Montreal Convention of 1999 (Article 24) requires that the limits of liability prescribed in Article 22, as well as in Articles 21 and 23, shall be reviewed by the Depositary (which is the International Civil Aviation Organization) at five-year intervals, taking into account the rate of inflation (i.e., the weighted average of the annual change in the Consumer Price Indices of the United States, Japan, China, the European Union, and the United Kingdom). A review will also take place any time one-third of the States Parties request a review and the rate of inflation has exceeded 30% since the previous revision. The first review of limits of liability conducted by the International Civil Aviation Organization in accordance with Article 24 took place in 2009; the second occurred in 2019. Hence, as a result of the second review, the revised limits, effective as of 28 December 2019, in Special Drawing Rights are:

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22 Special Drawing Rights per kilogram in the case of destruction, loss, damage, or delay in relation to the carriage of cargo (Article 22, paragraph 3); 1,288 Special Drawing Rights for each passenger in case of destruction, loss, damage, or delay with respect to baggage (Article 22, paragraph 2).

III. Concluding Remarks The intent of the no-fault, mandatory liability regimes for the carriage of goods provided for in the Montreal Convention of 1999 is to provide consistency and certainty given that international transport by its nature involves multiple jurisdictions and variances in domestic law and staff in multiple locations, often not under the direct control of the airline/ shipping line that first received the goods. Hence, a non-fault mandatory as well as limited liability regime was placed on one side of the scale, while, on the other side, the system was balanced by providing the air cargo carriers with the non-forfeiture of the benefit of the limits even in cases of willful misconduct or in cases of default that would be considered to be equivalent to willful misconduct, which, by contrast, were provided for by the Warsaw Convention 1929: in other words, the “unbreakable-limit regime” introduced by the Montreal Convention of 1999 should be interpreted as quid pro quo for the strict liability that was imposed on the carrier by deleting the “all necessary measures” defense provided for by Article 20 of the Warsaw System. Maurizio Corain

References 2019  Revised Limits of Liability Under the Montreal Convention of 1999, International Civil Aviation Organization, https://www​ .icao​ . int​ /secretariat​ / legal​ / Pages​ / 2019​ _Revised​_ Limits​_of​_ Liability​_Under​_the​ _Montreal​_Convention​_1999​.aspx. Convention for the Unification of Certain Rules for International Carriage by Air, Done at Montreal on 28 May 1999 (The Montreal Convention of 1999). Convention for the Unification of Certain Rules Relating to International Carriage by Air, Done at Warsaw on 12 October 1929 (The Warsaw Convention of 1929). Current Lists of Parties to Multilateral Air Law Treaties, Convention for the Unification of maurizio corain

352  elgar concise encyclopedia of aviation law Certain Rules for International Carriage by Air Done at Montreal on 28 May 1999, International Civil Aviation Organization, https://www​.icao​.int​/secretariat​/ legal​/ List​ last %20of​%20Parties​/ Mtl99​_EN​.pdf, visited Aug 30, 2022. George N. Tompkins, Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999, (Kluwer, 2010). J.C. Batra, ‘Modernization of the Warsaw System – Montreal 1999’, 65 Journal of Air Law and Commerce 1155 (2001). Jennifer McKay, ‘The Refinement of The Warsaw System: Why the 1999 Montreal Convention Represents the Best Hope for Uniformity’, 34 Case Western Reserve Journal of International Law 429 (2000). Malcolm Clarke, David Yates, Contracts of Carriage by Land and Air, (LLP, 2008).

maurizio corain

Michael Mild, ‘Liability in International Carriage by Air: The New Montreal Convention’, 4 Uniform Law Review 835 (1999). Pablo Mendes de Leon et al., ‘The Montreal Convention: Analysis of Some Aspects of the Attempted Modernization and Consolidation of the Warsaw System’, 66 Journal of Air Law and Commerce 1155 (2001). Pablo Mendes de Leon, Introduction to Air Law, (Kluwer, 2017). Paul Stephen Dempsey, Michael Milde, International Air Carrier Liability: The Montreal Convention of 1999, (McGill University, 2005). Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929, Done at the Hague on 28 September 1955 (The Warsaw Convention 1955).

101. Liability for Death and Personal Injuries I. Negligence-originated Limited Liability Regime Provided for by the Warsaw Convention of 1929 The Warsaw Convention of 1929 was the first attempt to uniformly regulate the air carrier liability: its purpose was to unify international laws of compensation governing accidents and incidents during international flights, with the scope of avoiding the fragmentation of regulation resulting from the application of different national laws in this matter. The liability regime under the Warsaw System (i.e., the Warsaw Convention of 1929 as amended by the Hague Protocol of 1955) has a fault-based limited liability system; this means that the main virtue of the Warsaw System was the limitation of air carrier liability for damages related to death and injuries in the circumstance that the damages were not a consequence of wilful misconduct by the carrier (Article 25). However, the carrier is not liable if it proves that it and its agents have taken all the necessary measures to avoid the damage or that it was impossible to take such measures (Article 20). The Warsaw Convention was negotiated during the early years of the aviation industry, and, as such, it capped air carriers’ liability limits at a level appropriate for that era; hence, the limitation of air carrier liability for damages related to death and injuries was originally fixed at 125,000 French Poincaré Francs (Article 22). Over the years, there have been several amendments to the Warsaw Convention that have attempted to update the liability regimes and to raise liability limits: in this legislative policy context, mention should be made to The Warsaw Convention of 1955 (which increased the limit of liability to 250,000 French Poincaré Francs), to the Guatemala City Protocol of 1971, and to the four Montreal Protocols of 1975 (the third one has introduced, among others, the provision of Special Drawing Rights (SDRs) as an instrument to calculate the limits of air carrier liability regime and has fixed the limit per passenger in cases of death and personal injuries at 100,000 SDRs,

anticipating the Montreal Convention of 1999 limit of liability). Furthermore, it should be mentioned the supplementary Convention of Guadalajara signed in 1961, which was complemented by the European Community legislation (Regulation (EC) No. 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) No. 2027/97 on air carrier liability in the event of accidents) as well as a number of socalled private agreements. The combination of such treaties and agreements, comprehensively referred to as the Warsaw System, has resulted in a complex and confusing array of international arrangements.

II. Strict Limited Liability Regime by the Montreal Convention of 1999 After a long period of negotiation, the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, henceforth referred to as the Montreal Convention of 1999, entered into force on 4 November 2003. For its signatories, which include most of the European countries, the European Community itself, and the United States of America, the Montreal Convention of 1999 replaced the Warsaw Convention of 1929 and its several amending instruments. The new Convention establishes air carrier liability in the case of death and personal injuries occurring during the transport, that is during all international carriage of persons performed by aircraft for reward as well as to gratuitous carriage by aircraft performed by an air transport undertaking (Article 1). The Montreal Convention of 1999 unifies all of the different international treaty regimes covering air carrier liability that had developed since 1929 when the Warsaw Convention was signed: it incorporates most of the provisions of the existing instruments, combining them into a single package that States must either accept or reject. Hence, the Montreal Convention of 1999 is designed to be a single, universal treaty to govern air carrier liability around the world, should the Convention be globally ratified: to date, the Montreal Convention has been ratified by 139 States out of 193 ICAO contracting States. Therefore, even today the Warsaw Convention of 1929 or rather the Warsaw System is still applied, in its different combinations of instruments, in many countries.

353

354  elgar concise encyclopedia of aviation law 1. International Carriage The Montreal Convention of 1999 aims to regulate any carriage in which the place of departure and the place of destination, whether or not there is a break in the carriage or a transshipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party (Article 1(2)). Hence, a carriage that is executed between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not considered an international carriage for the purposes of the Montreal Convention of 1999. 2. The So-called Fifth Jurisdiction Among the new legal institutions incorporated by the Montreal Convention of 1999, the Convention provides for a fifth basis of jurisdiction, which is added to the four already existing jurisdictions included in the Warsaw System. In the Warsaw Convention of 1929 (Article 28), an action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction (a) where the carrier is ordinarily resident, or (b) has his principal place of business or (c) has an establishment by which the contract has been made, or (d) before the Court having jurisdiction at the place of destination. In the Montreal Convention of 1999, the action for damages must be brought either before the court (a) of the domicile of the carrier or (b) of its principal place of business, (c) or where it has a place of business through which the contract has been made or (d) before the court at the place of destination. Article 33(2) of the Montreal Convention of 1999, in respect of damage resulting from the death or injury of a passenger, adds a fifth jurisdiction providing that an action may be brought (e) in the territory of the State Party in which, at the time of the accident, the passenger has his or her principal and permanent residence. The introduction of the fifth jurisdiction in the Montreal Convention of 1999 was strongly opposed by both some State Parties (one among all, France) and scholars as well as small and medium-sized (as well as maurizio corain

non-US based) airlines: the former believed that the fifth jurisdiction would lead to discrimination among passengers on the basis of their home jurisdiction (e.g., in a single aviation accident case, passengers with principal or permanent residence in countries with a generous legal system, like the United States, would receive more compensation than those passengers on the same flight from different countries), the latter considered that the fifth jurisdiction would expose air carriers to higher compensations due to consequent forum shopping. 3. Two-tier Liability System The Montreal Convention of 1999 (Article 17(1)) provides air carriers with a strict liability regime in the event of death and personal injuries occurring during carriage by air (i.e., the accident that caused the death or injury took place onboard the aircraft or in the course of any of the operations of embarking or disembarking). The only ground for exclusion of liability, by which the carrier may thus be released from the obligation to compensate for damage, is showing the existence of the negligence or other wrongful act or omission of the person claiming compensation (Article 20). This strict liability regime, which implies that the carrier shall not be able to exclude or limit its liability – the first tier of liability – is provided for by the Montreal Convention of 1999 up to the amount of 100,000 SDRs (Article 21(1) in its original version, that is the version in force before the subsequent limit reviews). Nonetheless, the person claiming compensation – exceeding the above said limit – can further recover for damages caused by the negligence or other wrongful act or omission of the carrier or its servants or agents. Hence, Article 21(2) provides that the carrier shall not be liable for damages deriving from death or bodily injury of a passenger that took place on board of the aircraft or in the course of any of the operations of embarking or disembarking to the extent that they exceed for each passenger the above said limit if the carrier proves that such damage was not due to the negligence or other wrongful act or omission of the carrier or of its servants or agents, or such damage was solely due to the negligence or other wrongful act or omission of a third party. This second tier of liability is based on

liability for death and personal injuries  355 a presumption of fault and does not contain any limit of liability. A carrier may agree to higher limits of liability or to no limits whatsoever (Article 25). However, any provision attempting to set a lower limit shall be null and void and the nullity of any such provision does not affect the whole contract, which shall remain subject to the provisions of the Montreal Convention of 1999 (Article 26). The limit of liability provided for by Article 21 may be increased by the court seized of the case, in accordance with its own law, by an amount equivalent to the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest (Article 22(6)). Nonetheless, the foregoing increase shall not apply if the amount of the damages ruled by the court, excluding court costs and other expenses of the litigation, does not exceed the sum that the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later. Other relevant provisions are the following: ●

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in the case of aircraft accidents resulting in death or injury of a passenger, the carrier shall, if it is required by its national law, make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons; such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier (Article 28); any action for damages, however founded, whether under the Montreal Convention of 1999 or in contract or in tort or otherwise, can be brought subject only to the conditions and the limits of liability set out in the same Convention, without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights; if any action is made, punitive, exemplary, or any other noncompensatory damages (i.e., damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct) shall not be recoverable (Article 29);

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the same rules dedicated to the air carriers, provided by the Montreal Convention of 1999, also apply to its servants and agents, if they prove that they acted within the scope of their employment: such servants and agents, therefore, will be able to benefit from the liability (but not only) regime provided for by the Convention (Article 30(1)); the aggregate of the amounts recoverable from the carrier, its servants, and agents shall not exceed the limit provided by the Montreal Convention of 1999 (Article 30(2)); the provisions of paragraphs 1 and 2 of Article 30 shall not apply if it is proved that the damage resulted from an act or omission of a servant or agent it is done with the intent to cause damage or recklessly and with knowledge that the damage would probably occur (Article 30(3)); the right to damages shall be extinguished if an action is not brought within a period of two years, to be calculated, determined by the law of the court seized of the case, from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived; the method of calculating that period shall be determined by the law of the court seized of the case (Article 35); the Montreal Convention of 1999 adopts a mutual liability regime (governed by the aforementioned rules) between contracting and actual carriers, making each liable for the acts or omissions of the other (Articles 40–41).

4. Limit of Liability Review The Montreal Convention of 1999 (Article 24) requires that the limit of liability prescribed in Article 21 as well as in Articles 22 in Relation to delay, baggage, and cargo, shall be reviewed by the Depositary (i.e., the International Civil Aviation Organization) at five-year intervals, taking into account the rate of inflation (i.e., the weighted average of the annual change in the Consumer Price Indices of the United States, Japan, China, European Union, and the United Kingdom). The first review of limits of liability conducted by the International Civil Aviation Organization in accordance with Article 24 took place in 2009; the second occurred in maurizio corain

356  elgar concise encyclopedia of aviation law 2019. Hence, as a result of the second review, the revised limit, effective as of 28 December 2019, in case of death or injury of passengers is up to the amount of 128,821 SDRs for each passenger (equal to, approximately, 143,800 UK pounds, 165,500 Euros, 168,081 US dollars). 5. Bodily and Mental Injuries Another substantial difference between the Warsaw System and the Montreal Convention of 1999 is the current potential option to overcome the constraint represented by the fact that mental injuries are recoverable only if they have been caused by physical damage to the body. Hence, decisions of US Courts, and the CJEU, made in the third decade of the 21st century, ruled that the Montreal Convention of 1999 does not require a direct causal relationship between the physical and mental injury for the recovery of damages; therefore, compensation of mental injuries can be considered if such damages are traceable to the accident, regardless of whether they are directly cause by the bodily injury suffered by the passenger.

III. Concluding Remarks The Montreal Convention of 1999 finally unified the different liability regimes, which had derived over the years from the Warsaw System, applicable to air carriers of passengers for personal injuries or death. Among the other rules that made the Montreal Convention of 1999 an outstanding point of reference for Member States that have already ratified the Convention and, even more so, for those that have not yet ratified it, the two-tier liability system is of particular importance. The provision of a strict liability regime up to a defined monetary limit, within which the air carrier cannot exempt itself from paying the relevant compensation (the first tier), together with the possibility for the claimant also to exceed this limit of liability in the case that the damage was caused by negligence or other wrongful act or omission of the carrier or of its servants or agents (the second tier), rendered the Convention a more up-to-date instrument to comply with the need of ensuring a balance between the interest of the injured party and the interest of the air transport undertakings. Maurizio Corain

maurizio corain

References 2019  Revised Limits of Liability Under the Montreal Convention of 1999, International Civil Aviation Organization, https://www​ .icao​ . int​ /secretariat​ / legal​ / Pages​ / 2019​ _Revised​_ Limits​_of​_ Liability​_Under​_the​ _Montreal​_Convention​_1999​.aspx. Charles F. Krause, Kent C. Krause, Aviation Tort and Regulatory Law, (West Group, 2020). Convention for the Unification of Certain Rules for International Carriage by Air, Done at Montreal on 28 May 1999 (The Montreal Convention of 1999). Convention for the Unification of Certain Rules Relating to International Carriage by Air, Done at Warsaw on 12 October 1929 (The Warsaw Convention of 1929). Current Lists of Parties to Multilateral Air Law Treaties, Convention for the Unification of Certain Rules for International Carriage by Air Done at Montreal on 28 May 1999, International Civil Aviation Organization, https://www​.icao​.int​/secretariat​/ legal​/ List​ %20of​%20Parties​/ Mtl99​_EN​.pdf, last visited September 12, 2022. Dana Stanculescu, ‘Recovery for Mental Harm under Article 17 of the Warsaw Convention: An Interpretation of Lesion Corporelle’, 8 Hastings International and Comparative Law Review 339 (1985). David E. Rapoport, Hans Ephraimson-Abt, ‘73-Year Odyssey: The Time Has Come for a New International Air Liability System’, 22 Issues in Aviation Law & Policy 151 (2002). Delphine Defossez, ‘Only Bodily Injury Recoverable for Aviation Accidents: How Is That Still Possible?’, 17 Issues in Aviation Law and Policy 113 (2017). Devendra Pradhan, ‘The Fifth Jurisdiction under the Montreal Liability Convention: Wandering American or Wandering Everybody’, 68 Journal of Air Law and Commerce 717 (2003). Doe v. Etihad Airways, P.J.S.C., 870 F.3d 406 (6th Cir. 2017). Ehrlich v. American Airlines, Inc., 360 F.3d 366, 400 (2nd Cir. 2004). George N. Tompkins, Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999, (Kluwer, 2010).

liability for death and personal injuries  357 International Monetary Fund, SDRs per Currency unit and Currency units per SDR, Exchange Rates, https://www​ .imf​ .org​/external​/np​/fin​/data​/rms​_ five​.aspx, last visited September 12, 2022. J. Brent Alldredge, ‘Continuing Questions in Aviation Liability: Should Article 17 of the Warsaw Convention Be Construed to Encompass Physical Manifestation of Emotional and Mental Distress?’, 67 Journal of Air Law and Commerce 1345 (2001). J. C. Batra, ‘Modernization of the Warsaw System – Montreal 1999’, 65 Journal of Air Law and Commerce 1155 (2001). J. Collin Spring, ‘Pilots Out of Uniform: How the Sixth Circuit’s Etihad Decision Undermines the Purpose of the Montreal Convention’, 84 Journal of Air Law and Commerce 153 (2019). Jean Hardy, ‘The Interpretation of Plurilingual Treaties in International Courts and Tribunals’, 37 British Yearbook of International Law 72 (1961). Jennifer McKay, ‘The Refinement of The Warsaw System: Why the 1999 Montreal Convention Represents the Best Hope for Uniformity’, 34 Case Western Reserve Journal of International Law 429 (2000). Julian Hermida, ‘The New Montreal Convention: The International Passenger’s Perspective; One Airline’s Merit Is Another Passenger’s Shortcoming’, 26 Air & Space Law 150 (2001).

Laurence B. Goldhirsch, The Warvaw Convention Annotated: A Legal Handbook, (Kluwer, 2000). Malcolm Clarke, David Yates, Contracts of Carriage by Land and Air, (LLP, 2008). McKay Cunningham, ‘The Montreal Convention: Can Passengers Finally Recover for Mental Injuries?’, 41 Vanderbilt Law Review 1043 (2021). Official list of short names of ICAO Contracting States, https://www​.icao​.int​/ about​-icao​/ Pages​/member​-states​.aspx. Pablo Mendes de Leon et al., ‘The Montreal Convention: Analysis of Some Aspects of the Attempted Modernization and Consolidation of the Warsaw System’, 66 Journal of Air Law and Commerce, 1155 (2001). Pablo Mendes de Leon, Introduction to Air Law, (Kluwer, 2017). Paul Eden, ‘Plurilingual Treaties: Aspects of Interpretation’, 155 40 Years of the Vienna Convention on the Law of Treaties, Alexander Orakhelashvili, Sarah Williams, (British Institute of International and Comparative Law, 2010). Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw On 12 October 1929, Done at the Hague on 28 September 1955 (The Warsaw Convention 1955).

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102. Liability for Denied Boarding, Delay, and Cancellation of Flights I. Regulation (EC) No. 261/2004 Regulation (EC) No. 261/2004 (“Regulation 261”) is one of the most comprehensive regulations on passenger rights across the globe. It repealed Regulation (EEC) No. 295/91 and went into effect on 17 February 2005. It applies to passengers departing from an airport located in the territory of a Member State to which the EU Treaty applies and to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, if the operating air carrier of the flight concerned is a Community carrier. Articles 4, 5, and 6 of Regulation 261 categorize the events of denied boarding, cancellation, and delay, respectively, and provide the rights to compensation, reimbursement, and care as set out in the following Articles 7 to 9. 1. Denied Boarding and Flight Disruptions Protection for passengers in cases of denied boarding, consisting of a compensation system, was already provided for in Regulation (EEC) No 295/91. Regulation 261 defines “denied boarding” in Article 2, lett. j), as “[a] refusal to carry passengers on a flight, although they have presented themselves for boarding [...], except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation.” The definition of denied boarding thus covers all cases in which a passenger is denied boarding on a flight, from overbooking to the case when a passenger who booked a multileg flight is denied boarding on a subsequent segment due to “no-show” on the initial segment. Article 4, paragraph 1, of Regulation 261 also requires the carrier, before deciding unilaterally which passengers are to be denied boarding, to request the possibility of voluntary surrender of the reservation by other passengers on the flight, to be obtained through “benefits under

conditions to be agreed between the passenger concerned and the operating air carrier.” The event of flight cancellation is described in Article 2, lett. l) of Regulation 261 as the “[n]on-operation of a flight which was previously planned and on which at least one place was reserved.” Article 5 of Regulation 261 establishes the rights of passengers with regard to reimbursement or re-routing and assistance at the airport, as well as the rules on compensation in case of flight cancellation. In particular, while passengers are generally entitled to reimbursement of the price of the reservation purchased and not used because of the cancellation, they are not entitled to compensation if the carrier has informed them of the cancellation at least 14 days before the originally scheduled departure date. Similarly, passengers are not entitled to compensation if they are informed of the cancellation between two weeks and seven days before departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival. Finally, the carrier is not required to pay compensation if, although it informs passengers of the cancellation less than seven days in advance and offers re-routing on an alternative flight that allows them to “depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.” As will be seen below, the right to compensation both in the event of cancellation and in the event of flight delay is in any event excluded if such disruptions are caused by “extraordinary circumstances” beyond the carrier’s control. Article 6 of Regulation 261 governs and also defines flight delays. In particular, a delay falls under the scope of the Regulation 261 if it is, with respect to the scheduled time of departure, two hours or more in the case of flights of 1,500 km or less, three hours or more in the case of intra-Community flights of more than 1,500 km or in the case of all other flights between 1,550 and 3,500 km and more than four hours in the case of flights not included in the above categories. In the event of delay as defined above, the passenger will have the right to assistance at the airport and, in the case of delay of more than five hours, may claim for the reimbursement of the ticket’s price.

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liability for denied boarding, delay, and cancellation of flights  359 Article 6 of the Regulation 261, differently from Articles 4 on denied boarding and 5 on cancellation, makes no reference to the right to compensation in the event of delay. In this respect, a surprising judgment was rendered at the outcome of Christopher Sturgeon and Others v. Condor Flugdienst GmbH (Case C-402/07) of 19 November 2009, in which the delay of a flight was deemed equivalent to a flight cancellation, with consequent recognition of the compensation provided for by Regulation 261, if passengers “suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.” The right to care that carrier must guarantee to passengers in the event of denied boarding, cancellation, or delay of a flight is laid down in Article 9 of Regulation 261. In particular, passengers must in any case be provided with meals and refreshments appropriate to the waiting time and should be allowed to make “free of charge two telephone calls, telex or fax messages, or e-mails.” Moreover, in the event of flight cancellations or particularly long delays, carriers must also bear the cost of hotel accommodation and the cost of transport to/from the airport if a stay of one or more nights or a stay additional to that intended by the passengers becomes necessary because of the flight disruption. 2. Pecuniary Compensation Article 7 of Regulation 261 draws up standardized amounts that carriers are required to pay upon the mere occurrence of one of the disruptions covered by the Regulation itself, irrespective of the extent of the damage suffered by the passengers. Regulation 261 envisages three different types of flights based upon the distance in kilometers of the route to be calculated by the great circle route method: (1) flights of 1,500 kilometers or less; (2) all intra-Community flights of more than 1,500 kilometers and of all other flights between 1,500 and 3,500 kilometers; and (3) all flights not falling under (1) or (2). The above classification is essential for the quantification of the compensation to be paid to passengers. In particular, for the flights referred to in point (1) above, the compensation shall be of Euro 250,00, for the flights referred to in point (2) above, of Euro

400,00, and for the flights referred to in point (3) above, of Euro 600,00. Where a passenger has been re-routed due to cancellation or denied boarding, if the passenger’s actual arrival time is delayed beyond the scheduled arrival of their originally booked flights, by two, three, or four hours for type (1), (2), or (3) flights, respectively, the operating air carrier may reduce the compensation provided for above by 50%. As far as the methods of payment of the above-mentioned compensation, Regulation 261 sets forth the possibility of payment “in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.” 3. Extraordinary Circumstances Article 5, paragraph 3 of Regulation 261 provides that “[an] operating air carrier shall not be obliged to pay compensation […], if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.” One issue of particular relevance is the assessment on what constitutes an “extraordinary circumstance” so as to exempt carriers from the obligation to pay compensation. Regulation 261 does not provide an unambiguous definition of an extraordinary circumstance, merely describing it as an event that “could not have been avoided even if all reasonable measures had been taken” and indicating, by way of example, in recitals 14 the cases of “political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.” This lack of unambiguousness has led and continues to lead to numerous court actions, some of which have been brought to the attention of the European Court of Justice, which has attempted to resolve certain interpretative doubts concerning the Regulation in a number of its judgments. In particular, among many cases, the most significant are Wallentin-Hermann v. AlitaliaLinee Aeree Italiane S.p.A. (Case C-549/07) of 22 December 2008 and Stefan Böck and Cornelia Lepuschitz v. Air France SA (Case C-432/07) of 19 November 2009 where laura pierallini

360  elgar concise encyclopedia of aviation law it was clearly ruled that any carrier must prove that the alleged problem leading to the cancellation/delay was “beyond its actual control” and that technical faults should not be included among the extraordinary circumstances “unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.” These two parameters have been taken as a reference by subsequent case law in assessing the extraordinary nature of certain circumstances. In particular, technical failures of the aircraft or parts thereof are generally considered to be events compatible with the normal activity of the air carrier (see, inter alia, Sandy Siewert and Others v. Condor Flugdienst GmbH (Case C-394/14) of 14 November 2014 and A. and Others v. Finnair Oyj (Case C-832/18) of 12 March 2020) and, as such, do not relieve carriers of their obligation to compensate passengers. Similarly, the unexpected absence – due to illness or death of a crew member whose presence is essential to the operation of a flight, does not fall within the concept of extraordinary circumstances (see TAP Portugal v. Flightright GmbH and Myflyright GmbH (Joined Cases C-156/22 to C-158/22) of 11 May 2023). On the other hand, since the primary need to ensure that the flight is carried out in the highest level of safety is considered predominant, in the case of flights diverted because of the presence of an unruly passenger, the disruption is considered to be beyond the carrier’s control, with the consequent exemption of its obligation to pay compensation (see LE. v. Transport Aéreos Portugueses SA (Case C-74/19) of 11 June 2020). With specific reference to the qualification of adverse weather conditions and natural phenomena as exceptional circumstances, the main problem of interpretation is that such phenomena, although obviously beyond the control of carriers, are far from rare and “exceptional.” In case Denise McDonagh v. Ryanair Ltd (Case C-12/11) of 31 January 2013, the eruption of the Eyjafjallajökull volcano caused such a paralysis in the normal course of European aviation activity as to be considered an exceptional circumstance. This decision led to the conclusion that the exceptionality is to be determined on the basis of the particular severity of the laura pierallini

adverse weather conditions or, at least, that the phenomenon is “of a highly uncommon nature in the airport at hand.” Finally, with regard to strikes, prevailing Community case law tends to distinguish between strikes called by the employees of the airline itself, which, by their very nature, are part of the commercial activity of the carrier and do not constitute an exceptional circumstance, and strikes called, for instance, by airport workers or air traffic controllers, which are beyond the control of the carrier and could be considered “exceptional” if not notified in due course and in the prescribed form (the so-called “wildcat strike”) (see, inter alia, Helga Krüsemann and Others v. TUIfly GmbH (Case C-195/17) of 17 April 2018, CS v. Eurowings GmbH (Case C-613/20) of 6 October 2021 and Airhelp Ltd v. Scandinavian Airlines System Denmark – Norway – Sweden (Case C-28/20) of 23 March 2021).

II. International Conventions On the subject of carriers’ liability arising from cancellation, delay, and denied boarding, the Conventions for the Unification of Certain Rules Relating to International Carriage by Air (i.e., the 1929 Warsaw Convention, as variously amended, and the 1999 Montreal Convention) sought to harmonize private international rules in the field of air transport across jurisdictions before the issuing of the Regulation 261. The fundamental principle expressed by these Conventions is that of exclusivity (addressed in Article 24 of the 1929 Warsaw Convention and Article 29 of the 1999 Montreal Convention) aims at ensuring that the liability regime, net of the various interests necessarily to be balanced, may not be affected or modified by any contractual or legislative provision by stating that “[a]ny action for damages, however founded […] can only be brought subject to the conditions and such limits of liability” quantified in Article 22(1) of the 1999 Montreal Convention as 4.150 SDRs. Despite the aforementioned principle of exclusivity, the adoption of Regulation 261, covering the same area as the Conventions, with particular reference to the matter of delay, has led scholars to wonder whether its promulgation could be in conflict with the relevant international Conventions and their exclusive application, and therefore be ultra

liability for denied boarding, delay, and cancellation of flights  361 vires. Since the adoption by the EU Court of Justice in its judgment in IATA and ELFAA, Case C-344/04 of 10 January 2006, ignoring a conflict between Regulation 261 and the Montreal Convention of 1999, this argument on infringement of this Convention has no longer been raised in court cases. Laura Pierallini

References Airhelp Ltd v. Scandinavian Airlines System Denmark – Norway – Sweden (Case C-28/20) of 23 March 2021. Christopher Sturgeon and Others v. Condor Flugdienst GmbH (Case C-402/07) of 19 November 2009. CS v. Eurowings GmbH (Case C-613/20) of 6 October 2021. Denise McDonagh v. Ryanair Ltd (Case C-12/11) of 31 January 2013. Francis Schubert, Liability of Air Navigation Services for Air Traffic Delays and Flight Cancellations, (Annals of Air and Space Law XXXII, 2007). Germanwings GmbH v. Ronny Henning (Case C-452/13) of 4 September 2004. Helga Krüsemann and Others v. TUIfly GmbH (Case C-195/17) of 17 April 2018. Interpretative Guidelines on Regulation (EC) No. 261/2004.

LE. v. Transport Aéreos Portugueses SA (Case C-74/19) of 11 June 2020. Paul Stephen Dempsey and Svante O. Johansson, Montreal v. Brussels: The Conflict of Laws on the Issue of Delay in International Air Carriage, (Air and Space Law 35, no. 3, 2010). Ricardo Pazos, El derecho a compensación por retraso en la normativa europea de transporte aéreo de pasajeros, (Revista para el Análisis del Derecho 2, ISSN-e 1698-739X, 2017). Ricardo Pazos, The Extraordinary Circumstances Defence in Regulation (EC) 261/2004, (Air and Space Law 46, no. 6, 2021). Sandy Siewert and Others v. Condor Flugdienst GmbH (Case C-394/14) of 14 November 2014 and Others v. Finnair Oyj (Case C-832/18) of 12 March 2020. Stefan Böck and Cornelia Lepuschitz v. Air France SA (Case C-432/07) of 19 November 2009. Tap Portugal v. Flightright GmbH and Myflyright GmbH, (Joined Cases C-156/22 to C-158/22) of 11 May 2023. Wallentin-Hermann v. Alitalia-Linee Aeree Italiane S.p.A. (Case C-549/07) of 22 December 2008.

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103. Liability of Air Navigation Services

II. Liability of State Agencies

I. Introduction Contrary to the liability of air carriers, there is no global international convention comparable to the Montreal Convention of 1999 that deals with the liability of Air Navigation Services (ANS). The work undertaken under the auspices of the International Civil Aviation Organization (ICAO) during the 1960s to investigate the need and the possible content of such an instrument has remained inconclusive to this date. In the absence of a global convention, the applicable liability regime is dictated by the terms of the specific legal foundation upon which the mandate given to the concerned ANS Provider (ANSP) is based. In most cases, the ANS liability regime is strongly driven by considerations related to the sovereign status of ANS. In accordance with Art. 28 of the Chicago Convention (CC), “[e]ach contracting State undertakes … to … provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention.” The establishment of Air Navigation Services consequently qualifies as a State responsibility and, in most States, the provision of ANS belongs to the sovereign functions of the State. Whereas Art. 28 CC formalizes a State responsibility to provide ANS, it does not create a legal obligation for States to compensate the victims of damages caused by a failure in the provision of such services. The Chicago Convention generates international public law obligations regarding the availability and integrity of ANS over the contracting States’ territory. Whereas an ANS failure might constitute a breach of a State’s obligations under the terms of the Chicago Convention, Art. 28 CC does not create any rights or privileges for individual citizens. A State can only be compelled to compensate for ANS-related damages if and to the extent prescribed under its domestic legislation or any other specific international arrangement to that effect.

The sovereign status of ANS and States’ obligations under Art. 28CC have strongly determined the organizational model adopted by most States for the provision of ANS over their territory. Historically, most ANSPs have been established as national State agencies that provided the full range of services falling under the definition of ANS within their airspace. In those States where ANS are provided by the State itself (e.g., France, United States), ANS are usually subject to the general legislation that governs the liability of the State. As a matter of principle, most States accept their obligation to repair ANS-related damages caused by a governmental ANS agency under the same conditions as private individuals or corporations involved in a similar type of activity. Surveys conducted by ICAO in the early 1960s indicated that States will not oppose sovereign immunity to object to ANS-related liability claims. However, because of the sovereign status of ANS, States will most often oppose immunity from foreign jurisdiction, which means that their national courts have exclusive jurisdiction over claims that involve their national ANS.

III. Liability of Autonomous Entities 1. Corporatized Agencies Since the 1980s, an increasing number of States have transferred the responsibility for the provision of ANS to autonomous entities. In some States the ANS system has been “corporatized” in the sense that the ANS provider has been established as a private law corporation, but the State remains the company’s sole or majority shareholder (e.g., South Africa, Australia, Denmark). In many States, the sovereign status of ANS remains, regardless of the private status of the service provider, and influences the applicable liability regime. First, national corporatized ANSPs might be entitled to oppose immunity from foreign jurisdiction to the same extent as State agencies. Second, corporatized ANSPs are often subject to a liability regime that differs from that applicable to ordinary private corporations. Two main doctrines exist in that respect. Under the “primary liability of the State” doctrine, in the event of a damage caused by a corporatized ANSP, all claims are to be brought not against the latter but against the State itself, which will be required

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liability of air navigation services  363 to repair the damage if the material conditions for liability are fulfilled. The State may have a right of recourse against the concerned ANSP to recover the amounts paid as compensation or a part thereof. This doctrine applies for instance in Germany and in Austria. Under the doctrine of the “subsidiary liability of the State,” all liability claims are to be brought against the corporatized service provider who has caused the damage and that entity is required to repair any such damage. However, in the event the amount of the compensation exceeds the financial capability or the insurance coverage of the ANSP, the legislation requires the State to intervene to pay for the residual compensation. This regime applies, for instance, in Switzerland. 2. Privatized Agencies A handful of States have fully privatized their ANS system in the sense that the State has sold a majority or the entirety of the ANSP’s share capital to private investors (e.g., United Kingdom and, to some extent, Canada). Fully privatized ANSPs are usually subject to the ordinary liability regime that governs any private corporation and the State has no legal subsidiary obligation regarding damages caused by its designated ANSP. Developments in the early 2010s have seen the emergence of specialized ANSPs, the activity of which focuses on a specific subset of ANS such as aerodrome control service, communication, navigation, or surveillance services, or data services. Such service providers are most of the time established as private corporations who provide services on a purely commercial basis and their liability is also governed by the liability law that applies to ordinary companies.

IV. Liability of Cross-border Services Some States have delegated to another State the responsibility to provide ANS over their territory or parts thereof in accordance with Annex 11 to the Chicago Convention. The liability regime that applies in such situations will be ruled by the instrument that formalizes the delegation. In most cases, that instrument will be an intergovernmental agreement between the delegating and the providing States. Existing arrangements are based on two different models. The large majority of delegation arrangements follow the “territorial State” doctrine, which acknowledges that the provision of

ANS remains a sovereign responsibility of the delegating State, regardless of the delegation. Under that model, any claim related to damages caused by the providing State over the territory of the delegating State is to be brought against the latter, who will have the obligation to repair the damage if the material liability conditions are verified. Depending on the terms of the delegation agreement, the delegating State might have a right of recourse against the providing State. A few delegation agreements follow the “effective provider” doctrine in accordance with which liability claims are to be brought against the provider State or agency who actually caused the damage. The Single European Sky legislation also foresees a possibility for an individual ANSP to contractually delegate to another ANSP the responsibility for service provision in a part of the airspace for which it has been designated. Under such constructions, the liability of the effective provider will be governed by the terms of the contract, which will usually prescribe a right of recourse by the delegating ANSP in the event the latter should be compelled to repair a damage caused by the negligence of the effective provider.

V. Liability of Multinational Organizations A number of ANSPs have been created in the form of multinational organizations managing the airspace of their Member States (ASECNA in Africa, COCESNA in Central America, and EUROCONTROL MUAC in Europe). In such cases, the founding treaty of the organization will include provisions regarding third-party liability. Existing organizations are vested with a legal personality and do not enjoy immunity of jurisdiction. They may be held directly liable for any damage caused to third parties. In the event a claimant successfully brings a claim against a Member State for a damage caused by the agency over the territory of that State, the latter might be entitled to recourse against the agency (e.g., MUAC). Conversely, the international agency might be allowed to call in its Member States as guarantors, if necessary (ASECNA).

VI. Liability Regime In spite of the wide diversity institutional models and the number of different national francis schubert

364  elgar concise encyclopedia of aviation law legislations, and regardless of historical traditions, significant material similarities can be observed among the various applicable liability regimes. Claims can usually be brought by any individual or entity who suffered a damage as a result of a failure in the provision of ANS. The range of potential claimants include the users of the services (aircraft operators) as well as third parties (passengers and victims on the ground). Airlines, insurers, and other stakeholders who might have been required by a court decision to compensate the victims of an aviation accident can also initiate a recourse action against an ANSP to recover the amounts paid, or a part thereof. In most States, the applicable law requires ANSrelated claims be brought against the organization in charge of providing the service and not against the individuals agents involved in the service delivery. Even in those States where a direct action against an individual agent would be permissible, such actions are rarely initiated because the value of the damages involved largely exceeds the financial capability of an individual. In most States, the establishment of the liability will require the fulfillment of four cumulative generic conditions: a damage, a breach of duty of the ANSP, a causality link between the breach of duty and the damage, and negligence on the side of the ANSP. Damages that have led to ANSrelated claims relate primarily to deaths, personal injuries, and damage to property. While attempts have been made to recover economic damages arising from air traffic delay or flight cancellations, very few such cases have been successful to this date as ANSPs have consistently been able to demonstrate that capacity restrictions or flight cancellations were dictated by actions taken to ensure the safety of the ANS system. A few exceptions relate to economic losses arising from the consequences of social disputes or from systemic organizational failures. In some cases, the negligence of the ANSP must be qualified. In France, for instance, the courts have required gross negligence ( faute grave) to engage the liability of the State. Contrary to the liability of air carriers, the liability of ANS is usually unlimited. The procedural aspects of ANS liability are determined by the applicable national law and will vary from one country to another. francis schubert

VII. ANS Liability vs. Air Carrier Liability The regime that governs the liability of Air Navigation Services differs in two main respects from the liability framework applicable to air carriers. First, whereas the liability of the air carrier is of a contractual nature, the liability of ANS finds its foundation directly in the applicable national laws or international arrangements governing the mandate of the service provider. One exception is to be found in New Zealand, where the relation between the airspace users and the ANSP is based upon a contract, which also establishes a contractual liability regime. However, this regime can be applied only to damages caused to airspace users and the ANSP’s liability toward third parties remains an extra-contractual liability. Second, contrary to the private nature of the air carrier’s liability, in many States the liability of ANS is vested with a public status arising from the sovereign qualification of the activity. The difference of status matters since private and public liability cases might be under the competence of different jurisdictions (civil or administrative courts) and subject to different material regimes. The competent jurisdiction ratione loci might also differ. An aircraft accident is rarely the consequence of the failure of a single actor and when the actions of several actors, such as the air carrier and the ANSP, have concurred to cause a damage, it is often difficult to bring a single joint claim against all potential defendants in front of the same jurisdiction.

VIII. ANS Liability in Practice Cases of ANS liability are relatively scarce. Most court decisions are to be found in the United States and these decisions have been instrumental in shaping the boundaries of the operational and technical responsibilities of ANS. Some of these decades-old cases still constitute landmark decisions (e.g., Hartz vs. US, Stork vs. US). The emergence of autonomous ANS authorities has profoundly altered legal practice in the domain of ANS liability. In a State-run ANS environment, liability cases are normally brought to a court for a judicial ruling. When establishing autonomous ANS entities, States have usually required that the provider must carry sufficient third-party insurance coverage to limit the

liability of air navigation services  365 State’s subsidiary financial exposure in the event of an accident. Insurance companies express a clear preference for the amicable resolution of liability cases. Out-of-court settlement often presents the advantages of expediting the compensation process and of being financially more advantageous for all the parties concerned. When insurance companies are involved, claims are usually brought to court only as a last resort, when the parties are unable to find an arrangement, or when a claimant objects to an extra-judicial arrangement on principle grounds. It is consequently reasonable to assume that future ANS-related liability claims are likely to be submitted only by exception to a juridical decision rather than as a rule. Another development in the ANS liability framework relates to the increasing weight of technology as well as to the rise of automated functions. The vast majority of existing ANSrelated accidents have been the consequences of human errors and the applicable liability regime has traditionally reflected the importance of the human factor. It is expected that technical failures will play an increasing role in future ANS-related liability cases. That development might materially impact the applicable liability regime in the sense

that it is usually very difficult to demonstrate negligence in a case of technical failure. The future liability framework for liability is consequently likely to include an absolute liability component, where claims will be addressed from a product liability perspective rather than from a human error point of view. Francis Schubert

References Francis Schubert, ‘Air Navigation Services Liability in the Single European Sky’, Annals of Air and Space Law, McGill University, Montreal, vol. XXVIII, 2003. Francis Schubert, ‘The Liability of Air Navigation Services Providers: Some Lessons from the Single European Sky’, Achieving the Single European Sky: Goals and Challenges, Kluwer, Amsterdam, 2011. Hartz v. United States, 387 F 2d 870 (1968). Kluwer, Liability, ANS Provider, Art. 28 CC, Immunity, Air Navigation Services, autonomous entity. Report of the Sub-Committee on the liability of air traffic control agencies, ICAO Doc LC/SC/LATC No 32, 14 April 1965. Stork v. United States, 340 F. 2d 1104 (1970).

francis schubert

104. Liberalization of the EU Air Transport Market I. State Sovereignty as Applied to International Civil Aviation Each State has full sovereignty over the airspace above its territory and territorial sea. This principle of customary international law is codified in the Chicago Convention of 7 December 1944 on international civil aviation (the Chicago Convention of 1944). Therefore, each State has broad discretionary powers to regulate air traffic in its own areas. On this point, the CC44 merely provides that international scheduled air services may not be operated by carriers from other contracting States without special authorization, while all other services are subject to any requirements and limitations that the State being overflown deems appropriate. Pursuant to Article 7 of the Chicago Convention (1944), each contracting State shall have the right to refuse permission to the foreign aircraft to operate cabotage traffic between domestic locations. Due to complex safety and security reasons, but above all the need to safeguard national economic interests in a rapidly developing industrial sector, exchanging traffic rights on a multilateral basis was to be avoided in 1944 and following decades. However, the need to ensure greater liberalization for those States wishing to do so prompted the concurrent conclusion, on the same day and also in CC44, of the International Air Transport Agreement. It provides for reciprocal exchanges of traffic rights between the contracting States in the international liner transport of passengers, freight, and mail, following the pattern of the so-called first five Freedoms of the Air. Commercial exploitation of airspace by airlines not belonging to the country being flown over or the country of departure or destination was therefore permitted. At the time of writing, the CC44 has been ratified by 193 States, paving the way for the current extensive harmonization of civil aviation regulations. Conversely, the International Air Transport Agreement was not as successful, given the preference of States to use

bilateral negotiations to agree on mutual traffic rights. The result was thousands of agreements, known as Air Services Agreements (ASAs), which ended up becoming the most widespread tool for negotiating routes, frequencies, capacity, and fares. Since 1946, more than 4,000 agreements have been concluded. To safeguard the commercial interests of the parties, most of them include the so-called nationality rule, which aims to reserve the traffic rights covered by the agreement to national carriers only, i.e., companies that are owned and controlled by nationals of the contracting States. These criteria – ownership and control of the airline – must be specified in the domestic laws of the State wishing to designate an airline for the operation of the international air services. The nationality rules restricted market access that was highly dynamic by definition. Air carriers also risked losing the traffic rights they had been granted whenever changes occur in such nationality requirements. The situation ended up being mostly unsatisfactory. The United States also decided to completely revise its domestic civil aviation policy, removing all restrictions on the design of routes, fares, and schedules by the Deregulation Act of 24 October 1978 (PL 95/504) 92 STAT 1705. This led to a strong development of the sector, and the United States itself launched a new type of bilateral agreements with other States, the so-called Open Skies agreements. The declared aim was greater market openness through the exchange of traffic rights and the reciprocal waiving of tariff and capacity restrictions. At times, the participating States even granted each other brand-new traffic rights, including four additional Freedoms of the Air, in addition to the five already recognized by the 1944 International Air Transport Agreement. The first Open Skies Agreement was concluded between the United States and the Netherlands on 14 October 1992. Many others followed, in most cases with the usual nationality clause.

II. EU Air Transport Market The situation regarding the traffic rights of European airlines is quite different. The European Union (EU) has always been committed to the liberalization of the internal

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liberalization of the eu air transport market  367 market and measures against the distortion of competition. These objectives are the expression of a series of principles of the Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) (2012), in particular, those prohibiting agreements or practices that restrict competition between Member States; those preventing the consolidation of dominant market positions; those giving the Commission strong supervisory functions to limit monopolies and State aid to national undertakings (Articles 101–109). These rules have had the effect of significantly reducing national competencies pertaining to market access of EU Member States, with a view to an internal market that is as open as possible to competition among EU air carriers. But above all, the European Court of Justice (ECJ), Case C-213/84 Ministère Public v. Asjes [1986] ECR 1425, declared the corresponding principles of the 1957 Treaty of Rome establishing the European Economic Community fully applicable to the internal market in commercial civil aviation. The European institutions were thus given a strong incentive to carry out an ambitious process of liberalization of air transport within the EU, which was given a decisive boost in 1992 with the so-called Third Package of measures to liberalize civil aviation, the rules of which were later incorporated into Regulation (EC) 1008/2008 of 24 September 2008 on common rules for the operation of air services in the Community (Recast) [2008] OJ L 293/3, in force since 1 November 2008. The result is a regime for the exchange of traffic rights that is so extensive and generalized that it is unprecedented in other regions. Other attempts to replicate the EU model have never been successful in fully achieving the objective. The EU Commission was concerned about this imbalance between EU and US air carriers and called on the Member States to renegotiate the agreements, but it was not successful. It was therefore forced to take legal action against them. The ECJ, through its decisions in Cases C-466/98 Commission of EC v. United Kingdom of Great Britain and Northern Ireland; 467/98 Commission of EC v Denmark; C-468/98 Commission of EC v. Sweden; C-469/98 Commission of EC v. Finland; C-471/98 Commission of EC v. Belgium; C-472/98 Commission of EC

v. Luxembourg; C-475/98 Commission of EC v. Austria; e C-476/98 Commission of EC v. Germany [2002] ECR I-9427, which later became known as the Open Skies judgments, considered these agreements as an infringement of the EU’s exclusive competences, giving the Commission the mandate to negotiate and conclude ASAs, or clauses laid down in ASAs, with third States. Thus, the Salzburg Agreement of 5 May 2006 (ECAA Agreement) was signed directly by the European Union with 11 neighboring States, namely Albania, BosniaHerzegovina, Croatia, Ireland, Montenegro, North Macedonia, Norway, Serbia including Kosovo, Slovakia, and Lithuania. In force since 2017, it has provided for the gradual liberalization of air transport services between the parties. However, it required the prior adaptation of domestic rules and regulations of these States to a EU and international rules referred to in the Agreement. Similar exchanges, but not inclusive of cabotage rights, were provided for in the Euro-Mediterranean Aviation Agreement (EMAA), concluded with a number of Mediterranean States, and in the following agreements concluded with the United States in 2007 and amended in 2009, with Canada in 2009, with Qatar and Oman in 2019, and with ASEAN in 2022. The United Kingdom ceased to be part of the Single European Civil Aviation Market in 2020 as a consequence of Brexit. However, after a series of provisional measures aimed at safeguarding connections with Europe, on 30 April 2021, the EU signed the Trade and Cooperation Agreement (TCA) with the United Kingdom and Northern Ireland, that has been in force since 1 May 2021, which provides for trade in traffic rights in commercial passenger, freight, and mail services corresponding to the first four Freedoms of the Air, postponing greater liberalization to possible following agreements (Arts. 418–419). The EU market for commercial air transport services is thus largely liberalized, with EU airlines enjoying all nine Freedoms of the Air and other opportunities to operate their air services, such as in terms of pricing and capacity. These airlines have succeeded in expanding their traffic volume and have increased the number of routes in a relatively short period of time, often specializing in cabotage connections abroad. Having achieved full liberalization, the European Union’s attention has also focused on competition from luca ancis

368  elgar concise encyclopedia of aviation law non-EU airlines, which are allegedly subsidized by the States designating them, affecting the competitive position of EU airlines. This imbalance has been addressed with the entry in force of Regulation (EU) 712/2019 of 17 April 2019 on safeguarding competition in air transport, and repealing Reg. (EC) 868/2004, which gave the Commission broad powers against distortive practices between EU and non-EU carriers. Luca Ancis

References Vladislav Donakanian, Dmitry Ivanov and Ekaterina Samorodova, Aerial Cabotage Revisited: From Exclusion to Internationally Recognized Practice, 46(2) Air & Space Law 257 (2021).

luca ancis

Máté Gergely, Fair Competition in International Air Transport, 45(1) Air & Space Law 1 (2020). Anna Masutti, Bilateral Agreements and Aviation Market Evolution, (3) Diritto dei trasporti 603 (2018). Anna Masutti, Mercato del trasporto aereo e principio di sovranità. Ripercussioni sulla crescita delle compagnie aeree, (1) Diritto marittimo 255 (2020). Scott Schneider, An EU Perspective of ‘Fair Competition’ in Global Air Transport, 45(1) Air & Space Law 431 (2020). Fu Xiaowen, Hoon Oum Tae and Zhang Anming, Air Transport Liberalization and Its Impacts on Airline Competition and Air Passenger Traffic, 49(4) Transportation Journal 24 (2010).

105. Low-cost Carriers State of the Art During the second decade of the 21st century, the aviation industry experienced a volatile behavior when it comes to growth, expansion, and innovation of its operations at the same time it complies with their legal obligations in different markets. In Europe, for instance, following the recovery from the economic crisis at the beginning of the 2010s, low-cost carriers (LCCs) took advantage of the crescent demand for air transport and invested huge amounts of money in improving and distinguishing their operations against competitors in terms of routes operated, innovative offerings, and network expansion. As a way of example, in 2017 Norwegian Air Shuttle surprised the sector by introducing transatlantic low-cost flights from Spain to the United States and South America. Later, after failing to acquire Niki Air, International Consolidated Airlines Group (IAG), announced that it was launching its new LCC, Level Europe, to compete in the German and Austrian markets, and that it was retrofitting its operating carriers’ fleet to offer Wi-Fi on board, paving the way for what it was later called “premium low-cost experience” across the group. However, clear skies can quickly turn into a bumpy ride when it comes to expenses, costs, fines, or sanctions due to non-compliance with statutes or regulations that impact the daily operations of airlines. It can be recalled that when the General Data Protection Regulation, Regulation (EU) 2016/679, entered into force in 2018, British Airways (BA) received a fine of 20 million GBP imposed by the Information Commissioner’s Office (ICO) to British Airways (BA) for the data breach of more than 400,000 of its customers. With that in mind, in the opinion of the author, the current state of affairs of LCCs is closely tied to the economic indicators and the involvement of the public sector in implementing certain constraints that directly impact the carriers’ abilities and activities and their capacity to be profitable. The most pertinent examples in the author’s view include the following: (1) COVID-19, (2) increasing operational and fuel costs, and (3) route restriction due to environmental grounds.

I. COVID-19 Notwithstanding the global and regional challenges impacting the industry and, if fierce competition were not already an issue for LCCs, the coronavirus COVID19 pandemic disrupted the entire industry following the closure of airspace imposed by the authorities, which resulted in a massive unprecedented economic loss to airlines. As indicated by the International Civil Aviation Organization (ICAO) in its “Effects of Novel Coronavirus (COVID‐19) on Civil Aviation: Economic Impact Analysis” report, in April 2020 during the first month of the pandemic, there was a reduction of 92% in passenger traffic compared to the same month in 2019, mostly because of the strict measures imposed by the authorities to control the spread of the disease which included mobility restrictions and closure of commercial air space for non-essential travel. By the end of 2020, only 1,800 million of passengers were transported compared to 4,500 million in 2019. That´s a loss of 60% in traffic. In Spain, the second most visited country in the world by passenger traffic before the pandemic, the numbers are closer to 72% of loss of traffic. To put this into perspective, tourism activity (in which air transport is classified) accounted for more than 12% of Spain’s GDP in 2019. In addition, carriers in Europe were severely impacted by their legal obligation pursuant to Regulation (EC) 261/2004 to refund passengers of canceled flights within seven days in times were carriers barely had any revenue and cash-out had to be strictly controlled for the company’s own survival. It is by far an unprecedented crisis and passenger traffic is not expected to reach pre-crisis level before 2024. The lasting economic impact of the pandemic for carriers is colossal. There are airlines that have publicly recognized challenges to return to profitability (e.g., Air Europa, easyJet), let alone to pre-pandemic levels, and yet face another economic crisis: the rising costs of jet fuel and other operating costs due to the war in Ukraine. II. Increasing Operational and Fuel Costs Although not all LCC have seen their scheduled operations directly impacted as a result of the Russian invasion in Eastern Europe, most carriers, if not all, have an indirect impact when it comes to the cost and supply

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370  elgar concise encyclopedia of aviation law of aviation fuel. Aviation fuel costs accounts for a substantial share of the operational costs of an airline, sometimes reaching up to 20%– 25%. With jet fuel prices not seen in over a decade, airlines are starting to accelerate the transition to clean energies and are asking regulatory authorities for a reasonable yet ambitious proposal to support the transition. The aviation industry is one of the largest contributors of emissions to the atmosphere. Alternative and renewable aviation fuels will not replace traditional jet fuel overnight, but the environmental commitments taken by the industry might be the occasion for them to accelerate the transition from fossil fuel to clean energy and release the burden sky-high prices are having on daily operations. At the European Union (EU) level, the ReFuelEU legislative proposal aims to boost sustainable aviation supply and demand in the EU and the increased feasibility to comply with the mandates that are being proposed. Today’s commercial production of sustainable aviation fuels (SAF) is only approximately 0.05% of the total EU jet fuel consumption. In the United States, the Biden administration is targeting 20% lower aviation emissions by 2030 and net carbon neutral by 2050. For this, the White House has secured a cross-industry support that would allow to help build and develop the market with an attractive incentive plan, but it is currently stalled in Congress. Due to the traffic generated, geographical regions such as North America and Europe are key markets for aviation alternative fuels, with Asia Pacific increasing. LCCs have studied the benefits in the long run and are growingly committed to increase the use of SAF as a way to reduce fuel costs at the same time they comply with incoming environmental targets. As a way of example, Ryanair set a goal to power 12.5% of its flights with SAF by 2030, together with investing in a cleaner and more efficient fleet. Also, IAG committed to powering 10% of its flights with SAF by the same year and, as a starting point, its operating company Vueling Airlines successfully operated a flight from Barcelona to Seville in November 2021, which prevented the emission of 2.5 tons of CO2 to the atmosphere. The group currently collaborates with CEPSA, Repsol, BP, and other companies in the industry to find cheaper fuel options and make aviation sustainable. Nowadays, SAF can offer 75%–100% reduction of CO2 emissions relative to julian d. lourido alonso

fossil-based jet fuel. Although costly at this stage, they are practical and financially viable since they do not need any major new equipment or infrastructure investments. Other attractive alternatives to SAF are electric and hydrogen-powered aircraft, which are currently being tested by the authorities for approval for commercial use, but its costeffective viability could depend on the pace carriers adopt this kind of energy supply. As indicated above, the gradual introduction of sustainable aviation fuels in the air transport market is expected to balance the costs for the carrier, airports, and fuel producers as demand increases. Whether by way of set mandates to enforce the transition or by way of incentives to develop the industry, LCC, and airlines in general, believe that a hybrid approach where ambitious mandates go together with critical funding could be the most immediate solution to lift the burden on airlines. The author shares the opinion that, in the short term, ambitious mandates applied to all flights that depart an EU-based airport, would be easier to implement rather than a State-by-State approach. III. Route Restrictions on Environmental Grounds In addition to the losses perceived by carriers due to the pandemic and the rising costs of jet fuel, there is another initiative that, if broadly implemented, may have further economic impact in the near future for LCC operations in Europe. Governments in France and Austria, for example, have passed legislation banning air transportation between cities that are already served by a more efficient and cleaner alternative, such as trains. Others are considering levying higher taxes to discourage demand on these routes at the same time they comply with free market regulations. This could result in the abolishment of profitable routes for LCCs like Paris-Lyon, ViennaSalzburg, or Madrid-Barcelona, which are highly popular with consumers and highly profitable for carriers. In fact, as part of the conditions set by the French government to provide State aid to Air France after COVID19, there was a concession not to operate certain short-haul flights within the national territory, closing the door to LCCs as well and further reducing the opportunities for the business to grow. The above policy is still not widely adopted in Europe, LCCs will need to revisit

low-cost carriers  371 their long-term network planning to replace highly profitable, short-haul operations. From the legal point of view, LCCs are studying whether to challenge these conditions as being against the single market and free-movement regulations in force in the EU. In conclusion, the current state of affairs of carriers in Europe, in particular LCCs, is uncertain and it is highly susceptible to the policies enacted by the governments. The pandemic, the inflationary rate, increased operational and fuel costs, disproportionate sanctions, and limitation of operations could push some companies to evaluate their commercial viability, whether by increasing their prices or by cutting investments, innovation, and costs. In declarations to BBC, Michael O´Leary, Ryanair CEO, recognized that fares would be “materially higher” in summer 2022 due to the above-mentioned circumstances. Measures to prevent further economic losses in an industry that contributed to the EU GDP almost 4% in 2019 are urgent. If public support, meaning transition to SAF, incentives, and reasonable regulations to promote just competition lags with respect to other priorities, it will be a matter of time for airlines in general to enter into yet another cycle of uncertainty. Julian D. Lourido Alonso

11 December 2018 on the promotion of the use of energy from renewable sources (Recast) [2018] OJ L328/82. Eurocontrol, ‘Aviation sustainability developments from around the world’ (Eurocontrol, 18 May 2021) accessed 22 April 2022. Eurocontrol, ‘Aviation sustainability developments from around the world’ (Eurocontrol, 13 December 2021) accessed 22 April 2022. Jon LeSage, ‘Biofuels may be the future of the aviation industry’ (Oil Price, 17 February 2017) accessed 19 April 2022. Jonathan Josephs, ‘Airline giant Delta warns oil increases mean higher ticket prices’ (BBC, 18 March 2022) accessed 18 March 2022. No author, ‘La aerolínea “low cost” Norwegian ofrecerá vuelos de bajo coste entre Europa y Latinoamérica en 2017’ (El Economista, 3 November 2016) Proposal for a Regulation of the European accessed 24 April 2022. Parliament and of the Council on ensuring BBC (no author), ‘Ryanair boss: Air fares a level playing field for sustainable air will be higher this summer’ (BBC, 2 March transport, COM(2021) 561 final, 2021/0205 2022) accessed Spanish Institute of Statistics, ‘Spanish 18 March 2022. Tourism Satellite. Statistical review 2020’ Dave Keating, ‘Can new EU policy finally (INE, 4 January 2022) accessed Monitor, 19 April 2022) accessed 24 April 2022. (Reuters, 18 April 2022) accessed 19 April 2022. (COVID-19) on civil aviation: Economic Directive (EU) 2018/2001 of the European impact anaylisis’ (ICAO, 8 March 2022) Parliament and of the Council of accessed 12 April 2022. United States Department of Energy, Bioenergy Technologies Office, ‘Sustainable aviation fuels’ (USDOE, no date) accessed 4 April 2022. William Raillant-Clark, ‘2020  passenger totals drop 60 percent as COVID-19 assault on international mobility continues’ (ICAO, 15 January 2021) accessed 24 April 2022. World Economic Forum, Guidelines for a Sustainable Aviation Fuel Blending Mandate in Europe, Insight Report (July 2021).

List of Abbreviations ALA BA BBC

Asociación de Líneas Aéreas, Spain British Airways, Plc British Broadcasting Company

julian d. lourido alonso

CEO CEPSA

Chief Executive Officer Compañía Española de Petróleo, S.A.U. EC European Community EU European Union GBP Sterling pound GDP Gross Domestic Product IAG International Consolidated Airlines Group, S.A. IATA International Air Transport Association ICAO International Civil Aviation Organization ICO Information Commissioner Office, United Kingdom LCC Low-cost carrier REPSOL Repsol, S.A. SAF Sustainable Aviation Fuel Wi-Fi Wireless Fidelity

106. Market Economy Investor Principle in the Aviation Sector I. Definition and General Application The Market Economy Investor Principle (MEIP) is a test applied in European State aid law to assess whether an action taken by public authorities falls under the prohibition of State aid pursuant to Article 107 of the Treaty on the Functioning of the European Union (TFEU). It is alternatively called Market Economy Operator Principle (MEOP). According to this principle, when a public entity invests in an enterprise on terms and in conditions that would be acceptable to a private investor operating under normal market economy conditions, the investment does not constitute State aid and must not be notified to the European Commission (EC). The principle is in connection with Article 345 TFEU, which provides equality between public and private ownership, although the main legal basis remains the said Article 107(1) TFEU. The MEIP scope of application has nowadays become very wide, as the principle is regarded as a starting point for the economic analysis of almost every State aid case. The MEIP compliance can be assessed through direct or indirect methodologies, depending on several elements, including type and context of the single transaction as well as data accuracy and availability.

II. MEIP Overview in the Aviation Sector In 1994, the EC published the first Guidelines on the application of current Articles 107 and 108 TFEU to State aids in the aviation sector, therein indicating several forms of aid: operating aid for airlines, aid for air services, compensation to airlines for carrying out public service obligations, and aid of a social character. Sharing the approach adopted by the CJEU in 1986 Meura case, such guidelines considered the MEIP as the first step in State aid control; indeed, if the beneficiary enterprise could obtain the same measure in the markets,

there is no anti-competitive economic advantage arising from it. In the aviation industry, the MEIP test is particularly helpful, as it prevents public entities either from the risk of granting unlawful aid or from the possible dispersion of such aid between State-owned (or State-supported) airport and airlines. In this regard, the EC’s current aviation Guidelines were issued in 2014 and extended in their validity in 2018. Such Guidelines allow smaller regional airports to receive investment aid as well as (albeit temporarily) operating aid according to different percentages, while larger airport with more than 5 million of passengers traffic per year may receive investment aid for aviation-related infrastructure costs only in exceptional situations.

III. MEIP Methodologies and Aviation Cases As for the MEIP methodologies, the direct ones of “concomitance” (also known as concurrence) and of “pari passu” investments have proved difficult to apply in the aviation sector. Indeed, in such a sector a private investor rarely makes a substantial investment on the same terms as the State at the time of public intervention. On the contrary, tender procedures are often used for sale of land or assets, as well as to award a concession agreement to private airport operators. However, the most widely used MEIP methodologies in the aviation cases have been the indirect methods of benchmarking and of profitability analysis, since either public funding of airlines and airports or airportairline agreements frequently require a profitability evaluation. Specifically, the MEIP test has been differently applied in consideration of the peculiarities of the following scenarios. 1. Loans and/or Relevant Guarantees Debt financings granted from the State in the form of loans and/or relevant guarantees have been evaluated through benchmarking (e.g., EC decision of 2012 on financing arrangements in the Munich airport case). The benchmarking method verifies the alignment of the terms of the transaction with comparable transactions concluded between

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374  elgar concise encyclopedia of aviation law private operators on the market (particular attention is paid to the price). In loans and/or relevant guarantees, the interest rate on the financing from the public authority is frequently correlated to any existing commercial loans of the concerned company or, alternatively, to comparable loans/bonds of other companies having similar credit rating. Other terms and conditions of the loan must be checked to verify whether they are aligned to the ones available on the market. 2. Equity Injections to Develop Infrastructure Capital injections provided by the State to develop airport infrastructure have often been put under profitability analysis (this happened for the Berlin airport case subject to EC decision in 2012). The profitability evaluation compares the expected return from the transaction with the return hypothetically required by a private investor in a similar transaction. When it comes to public financing of complex infrastructure projects, such as the Berlin airport, it becomes harder to distinguish the State role between the market operator and the public authority. The evaluation generally considers the appropriate benchmark return (i.e., discount rate) and covers the entire economic life of the asset, which can be relatively long in case of terminal buildings, runaways, and other airport infrastructure. 3. Airport Owners-Operators Concession Agreement A concession agreement between airport owners and operators tends to be concluded at the end of a public tender process. If tender procedures are used to meet the MEIP test, they must be competitive, transparent, non-discriminatory, unconditional, and aligned with public procurement rules. In the event no tender is carried out, the MEIP test could, in principle, be conducted via profitability analysis. This is what happened in the Athens international airport case, decided by the EC in 2018, concerning the compliance with MEIP of a proposed extension of the concession agreement for the airport operator. daniele d’antonio

4. Airport-Airline Agreements Agreements between airlines and airports owned, or already financed, by public entities may, in principle, be subject to benchmarking. However, pursuant to EC current guidelines, the prices charged by publicly owned or financed airports are capable of strongly influencing the prices set by privately owned or managed airports. Therefore, the EC generally prefers to assess the MEIP compliance of such agreements through profitability analysis, to appropriately check the prices charged by airports to airlines. ●

in the Ryanair Charleroi case concerning airport-airlines agreements, the CJEU annulled in 2008 the EC’s decision as a MEIP assessment had not been carried out in respect of the setting of land fees at Charleroi’s airport.

The Court, indeed, clarified that setting such landing fees does not fall under legislative competences, but it constitutes an economic activity and therefore it must be assessed using the MEIP test. ●

according to the EC current guidelines, MEIP test is fulfilled if it can be proved that, at the time of signing the airport-airline agreements, the latter is sufficiently profitable for the airport so that even a private operator would likely sign it.

Specifically, the evaluation of such profitability should focus on the expected incremental revenues and costs arising from the airline’s activity. In respect of all the expected revenues and costs for the airport, instead, while investments that are explicitly established in the agreements must be taken into account, fixed costs should be excluded from the evaluation as the airport would bear them in any case (although in limited cases the investment costs could be proportionally allocated to the MEIP analysis). In essence, if investment costs are specific to the relevant airline, they can be partially taken into account in the MEIP test. To assess this, it is necessary to carry out a careful analysis of all the available information.

market economy investor principle in the aviation sector  375 Applying the above criterion, the EC excluded from the MEIP analysis the investment costs, which were, respectively, connected to the expansion of the airport’s terminal in Alghero airport case, and arising from the agreements concluded between the airport and Wizz Air in the Timisoara airport case. Daniele D’Antonio

References Balfour, John and Leandro, Solange, State Aid in the Airline Sector: A Change in Focus, in European State Aid Law Quarterly, 10(2), 225–236, 2011. Available at JSTOR: https://www​.jstor​.org​/stable​/10​ .2307​/26686166 Communication from the European Commission Concerning the Application of Article [107] and [108] of the EEC Treaty to Public Authorities Holdings (Bulletin EC 9-1984). Communication from the European Commission to the Member States Application of Articles [87] and [88] of the EC Treaty and of Article 5 of Commission Directive 80/723 to Public Undertakings in the Manufacturing Sector, 1993 O.J. (C 307) 3. Communication from the European Commission, ‘Guidelines on state aid to airports and airlines’, 2014 O.J. (C 99) 03. Communication from the European Commission Concerning the Prolongation of the Specific Regime for Operating Aid for Airports with up to 700 000 passengers per annum provided for in the Guidelines on state aid to airports and airlines, 2018 O.J. (C 456) 06. Case 234/84, Belgium v. Commission (Meura) [1986] E.C.R 2263, [1988] 2 CMLR 331. Case C-305/89, Italy v. Commission, 1991 E.C.R. I-01603. Case T-196/04, Ryanair v. Commission, 2008 E.C.R. II-3643, 92, 94. Claici, Adina, Siotis, Georges, Chatterjee, Obhi, and Stehmann, Oliver, The Market Economy Investor Principle: Lessons Learned from the Ciudad De La Luz Case (April 12, 2016), in Journal of Competition Law and Economics, 12(1), 181–208, 2016.

Commission Decision, Case No. 2004/393, Ryanair/Charleroi, 2004 O.J. (L 137). Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/49. European Commission Decision (EU) 2020/1065 of 24 February 2020 on the aid measure SA. 31662 – C/2011 (ex NN/2011) implemented by Romania for Timișoara International Airport – Wizz Air. European Commission Decision (EU) 2018/8677 of 12 December 2018 on the aid measure SA.48509 (2018/N) Extension of the Airport Development Agreement for Athens International Airport (2026 – 2046) (OJ 2020 C43) 4. European Commission Decision (EU) 2015/1584 of 1 October 2014 on state aid SA.23098 (C 37/07) (ex NN 36/07) implemented by Italy in favour of Societa di Gestione dell’Aeroporto di Alghero So.Ge.A.AL S.p.A. and various air carriers operating at Alghero airport (OJ 2015 L250) 38. European Commission Decision (EU) 2012/9469 of 19 December 2012 on the aid measure SA.35378 (2012/N) Finanzierung des Flughafens Berlin Brandenburg (OJ 2013 C36) 10. European Commission Decision (EU) 2012/5047 of 3 October 2012 on the aid measure SA.23600 – C 38/08 (ex NN 53/07) – Germany – Financing arrangements for Munich Airport Terminal 2 (OJ 2013 L319) 8. Joined Cases T-228/99 & T-233/99, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v. Comm’n, 2003 E.C.R. II-00435. Karim, Md. Rezaul, The EU Market Economy Investor Principle: A Good Paradigm? (April 28, 2014). Available at SSRN: https:// papers​.ssrn​.com​/sol3​/papers​.cfm​?abstract​ _id​=2498873 Robins, Nicole and Puglisi, Laura, The Application of the Market Economy Operator Principle in the Aviation Sector, in European State Aid Law Quarterly, 20(1), 74–86, 2021. Slocock, Ben, The Market Economy Investor Principle, Directorate-General Compet­ ition, unit A-3, Competition Policy Newspaper Number 2 – June 2002.

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107. Military Aircraft I. Introduction The military is an instrument to execute the State’s obligations in support of national policies and international agreements. Ensuring sovereignty through air superiority is a primary concern for a State, with absolute priority to conducting air policing and defense operations in the best conditions. Evolving worldwide security threats require continuous adaptation of military strategies and tactics to perform air operations in crisis or war theaters and sufficient readiness for armed forces to fulfill their commitments. Therefore, the military must have permanent access to the airspace without discrimination and sufficient airspace for adequate education and training. The interest in supporting military operations with aircraft was identified in the early aviation stage. Air warfare started with the successful use by the French military forces of hot balloons during the French Revolutionary Wars to observe and direct the battle. Initiated in 1849, during the siege of Venice, strategic air bombing was much used during World War I, particularly in support of trench warfare. The military has continuously supported aviation developments to maximize the advantages of using the third dimension to support ground operations. Military aviation was institutionalized in many countries during the 20th century as a separate armed forces branch. Military aircraft are generally operated by air forces but may also be attached to other military components, such as the navy, the army, or special forces. Military aircraft have acquired a predominant role in conflicts, as demonstrated during the 1990s campaign in Iraq and the Balkans, reducing political risks of exposing national soldiers’ lives on the ground by maximizing damages to infrastructures before intervening.

II. Terminology There is no harmonized terminology when discussing military aircraft, but they can be broadly defined as fixed-wing or rotary-wing aircraft operated by commissioned units of a legal armed force of a State. A military aircraft must be commanded and/or piloted by a crew subject to regular armed forces discipline

and bear national markings to be clearly identified. It can be operated by a pilot installed onboard or by a crew remotely located in the case of an Unmanned Aircraft System (UAS). However, pilotless military aircraft flying in full autonomy are also covered, but other objects used as projectiles, such as rockets, are excluded from the definition. Military aircraft are divided into combat aircraft (CA) or non-combat aircraft (NCA) depending on their use: ●

●

the Treaty on Conventional Armed Forces in Europe (CFE) defines CA as aircraft armed and equipped to engage targets by employing guided missiles, unguided rockets, bombs, guns, cannons, or other weapons of destruction, as well as any model or version of such aircraft that performs other military functions, such as reconnaissance or electronic warfare. Combat aircraft are generally designed and procured by military forces to provide specific capabilities to destroy enemy equipment using onboard ordnance. Combat Aircraft mainly regroups fighters, bombers, and electronic warfare systems; NCAs are not designed for combat and are produced for civilian or dual use. They are operated in support of armed forces engaged in national or international actions. NCA regroup many aircraft types, including tactical and strategic transport warships, airborne warning and control systems (AWACS), reconnaissance and surveillance systems, air-to-air refuelers, etc. NCAs also include experimental prototypes, training aircraft, and search and rescue systems.

III. Legal Aspects 1. International Developments After World War I, international discussions were held to regulate international aircraft operations in general, including military assets, also setting up the principle of air sovereignty in the airspace above States’ territory. In 1910, the Paris International Air Navigation Conference was the first diplomatic attempt to identify the need for international aviation law. The Paris Convention on aerial navigation recognized in 1919 the political difficulties and intricacies raised by the development of aviation and signed the

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military aircraft  377 first set of rules for aerial navigation, which introduced for the first time in Article 30 the concept of “State aircraft.” In contrast to the “private aircraft” category, State aircraft were defined as “military aircraft and aircraft exclusively employed for State services, such as posts, customs and police.” In addition, the Convention created the obligation for military aircraft to formally request authorization before overflying the territory of a foreign country. Including 193 signatory parties, the Convention on International Civil Aviation (1944), known as the Chicago Convention, establishes rules for airspace use, aircraft registration, safety, security, and sustainability. The normative aviation law also represents the primary constitutional instrument of international public administrative law regarding the aviation sector. In its Article 3, the Chicago Convention limits its applicability to civil aircraft, excluding State aircraft defined in its Article 3(b) as being used for military, customs, and police services. In principle, State aircraft operations are limited to national territories, over the high seas, and over areas of undetermined sovereignty. The State aircraft definition is regularly subject to interpretation by Member States since focusing on the nature of services may authorize differentiating the civil or State status based only on the type of operations conducted. A military aircraft can perform civil operations and services but must then be ruled by the Convention in full compliance with ICAO standards. Alternatively, civilian aircraft are often flown for military support, particularly when transporting troops or goods to/from crisis or war areas. For both cases, the legal categorization as civil or military of the flight chartered by national defense authorities must always be clear, the qualification of State aircraft being only a national prerogative. Article 4 of the Chicago Convention also stipulates that civil aviation aircraft should not be misused by contracting States for any purpose inconsistent with the objectives of the Convention, i.e., for military operations. Article 35 also stipulates that carrying munitions or implements of war do not apply a State aircraft, recommending storing load separately from passengers. Specific requirements have been defined for determining the legal status of crew members operating chartered commercial aircraft supporting military activities since they may not

be part of the armed forces and not wear a national uniform. Those civilian flight crew often receive special identification cards from governmental authorities to benefit from The Geneva Convention protection if captured on the theaters. The United Nations Convention on the Law of the Sea (UNCLOS) (1982) endows military aircraft with the freedom of navigation and overflight over the high seas, including in the exclusive economic zone, without restriction regarding the scope of their actions. This covers maneuvering operations, flight operations, military exercises, intelligence activities, and ordinance firing. In addition, Article 33 allows State aircraft to exercise limited control over the contiguous zone adjacent to the territorial sea, not subject to State sovereignty. However, the applicability to military operations is a matter of interpretation when considering in particular military exercises and training overflights performed over the exclusive economic zone. However, the Convention authorizes the hot pursuit by military aircraft on aircraft clearly marked and identifiable as being on government service and authorized to that effect. 2. National Approach Article 3(d) of the Chicago Convention stipulates that specific national regulations may be established for ruling State aircraft operations, however introducing the obligation for States to respect the “due regard” principle of the safety of navigation of civil aircraft. The Convention does not provide details regarding how the due regard obligations should apply, but the ICAO progressively developed a certain number of provisions covering military aircraft operations. For example, the Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations (1990) established the importance of establishing strong cooperation between civil and military authorities, as well as a need for civil and military aviation to use commonly the airspace considered as a continuum, to ensure safety, regularity, and efficiency of international civil air traffic. The document also provides guidance for aircraft interceptions and details military activities potentially threatening civil aircraft, which should be coordinated with Air Trafic Services (ATS) authorities. This covers the firing or testing of weapons, air displays, training exercises, the intentional dropping of gilles fartek

378  elgar concise encyclopedia of aviation law objects or paratroopers, the launch and recovery of space vehicles, and the operations in areas of conflict or the potential for armed conflict. Following the Chicago Convention, the Member States have progressively developed national rules for military aircraft not flying under General Aviation Traffic (GAT). Generally known as Operational Air Traffic (OAT), the provisions aim to ensure the successful accomplishment of military operations and training missions, respecting the due regard principle. The harmonization of OAT among the Member States, primarily sunject to national decision, is essential to facilitate cross-border military operations and enhance the interface with the GAT environment. In 2022, the EUROCONTROL Organisation contributed to this harmonization by publishing OAT guidelines for military operating under Instrument Flight Rules (IFR) inside the controlled airspace of the Area European Civil Aviation Conference (ECAC) Members. 3. European Union Approach The Single European Sky (SES) legislation was established in Europe without prejudicing the Member States and their requirements regarding public order, public security, and defense matters since military operations and training are outside the European Union’s competence. However, the SES legislation fully applies to State aircraft operated under GAT rules. Furthermore, the SES legislation favors civil-military dialogue at the national, regional, and European levels, enhancing military-military coordination across borders. The Framework Regulation 549/2004 allows the Member States to take any necessary measures to safeguard essential security or defense policy interests. Constituting the centerpiece for aviation safety in Europe, the European Union Aviation Safety Agency (EASA) develops aviation regulations that do not apply to aircraft carrying out military activities or services under the control and responsibility of a Member State. However, specific arrangements were established in 2013 between the EASA and the European Defence Agency (EDA) to harmonize military aviation safety requirements in Europe, with a primary focus on airworthiness, especially for “dual use” aircraft, including UAS. Accordingly, EDA experts now participate as observers in EASA rulemaking groups on air traffic management, airworthiness, and flight gilles fartek

operations, opening a new area for facilitating military operations in a more complex commercial aviation context based on increased automation and digitalization.

IV. Concluding Remarks Over the past year, the civil aviation sector has greatly changed due to the significant increase in traffic density and complexity and the introduction of new infrastructure and concepts to address better commercial operations’ safety, sustainability, and security. In Europe, the military authorities are very much engaged in monitoring and steering the aviation legislation developed under the SES framework, participating in the work conducted by the EDA, the EASA, and EUROCONTROL. Recent examples demonstrated that the global strategic situation might quickly evolve, with military aviation representing an essential instrument for executing the State’s obligations in support of national policies and international agreements. Preserving military aviation readiness and efficiency will therefore require enhanced cooperation between civil and military aviation authorities at national or international levels, setting up the best possible legal framework for defense operations. This is key to ensuring the appropriate balance between market and military aviation interests. Gilles Fartek

References Convention on International Civil Aviation, (The Chicago Convention). Convention Relating to the Regulation of Aerial Navigation (1919). Doc 9554-AN/932, Manual Concerning Safety Measures Relating to Military Activities, Potentially Hazardous to Civil Aircraft Operations. Gilles Fartek and François Rivet, The Introduction of Military Dimension into the SES: A New Paradigm for the European Commission in Aerospace Law and Policy Series Volume 8, (Wolters Kluwer, 2011). Harmonised Rules for Operational Air Traffic (OAT) under Instrument Flight Rules (IFR) inside controlled Airspace of the ECAC Area (EUROAT), Eurocontrol (2022).

military aircraft  379 Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the Single European Sky.

Treaty on Conventional Armed Forces in Europe (CFE), entered into force on 9 November 1992, Article II. United Nations Convention on the Law of the Sea (1982).

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108. The Montreal Convention (1999)

II. Convention Provisions

I. Overview Short title for the Convention for the Unification of Certain Rules for International Carriage by Air, Signed at Montreal on 28 May 1999. The Montreal Convention 1999 followed decades of unsuccessful attempts to modernize the Warsaw Convention and its related instruments (in particular the Hague Protocol), jointly referred to as the Warsaw System, and bring them into line with socioeconomic developments. As a consequence of the inadequacy of the Warsaw Convention limits, certain States, regional and global organizations, as well as air carriers had proposed or taken action to raise air carrier limits of liability to what was considered to be an appropriate level. While necessary as an interim measure, those actions had caused enormous fragmentation and a complicated web of different agreements and conventions, which overlapped, to provide rights to passengers following injury or death and in respect of baggage and cargo. Over the course of 18 days in 1999, the Montreal Convention was negotiated and drawn up. The final Montreal Convention reflects an era of globalization and the changed nature of international carriage by air at the turn of the 21st century. It is, equally, a document of compromise between the differing views of States and their own interests. The Montreal Convention is set out over 57 articles and seven chapters covering General Provisions; Documentation and Duties of the Parties Relating to the Carriage of Passengers, Baggage and Cargo; Liability of the Carriage and the Extent of Compensation for Damage; Combined Carriage; Carriage by Air Performed by a Person other than the Contracting Carrier; Other Provisions; and Final Clauses. As of September 2023, 139 State Parties have ratified the Montreal Convention. Further details of the key provisions of the Montreal Convention are set out below:

1. Chapter I: Scope of Application Article 1 sets out the scope of application of the Montreal Convention. With the exception of a terminology change from High Contracting Party to State Party, Article 1 is identical to the language used in the Warsaw System. This ensured that the Montreal Convention fully replaced the Warsaw Convention and avoided any risk of differing scope. The Montreal Convention applies to international carriage of person, luggage, or goods performed by aircraft for reward and the application of the convention to gratuitous carriage performed by an air transport undertaking. Carriage must involve either (a) carriage between two State Parties to the Montreal Convention (i.e., a single ticket) or (b) carriage with a departure and destination in a single State Party, but with an agreed stopping place in a territory of another State (i.e., a return ticket). It is irrelevant whether that other State, if only an agreed stopping place, is a party to the Montreal Convention. Critically, the focus of the interpretation is on the contract made between the parties (i.e., the ticket). Subjective intention is not considered, but objective understanding is, just as it was under the Warsaw Convention. As for the Warsaw Convention, the focus on the contract and how that contract was formed also informs the position with respect to successive air carriers under Article 1(3). For an international trip involving multiple legs, even if some of those legs are purely domestic and operated by different carriers, the entire carriage (including the domestic legs) will be considered to fall under the convention if booked together at the outset. Where multiple carriers are used and the carriage is booked through a travel agent, the knowledge of the travel agent has been held to be imputed to the carrier in order to establish that the entire trip was booked together at the outset in the knowledge of all parties to the contract. Article 2 provides for the application of the Montreal Convention to carriage performed by the State. However a State may declare by notification in accordance with Article 57 that the Montreal Convention shall not apply to international carriage performed by a State Party for non-commercial purposes in respect of its functions and duties as a sovereign State

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the montreal convention (1999)  381 and/or in respect of carriage of persons, cargo, and baggage for its military authorities on aircraft registered in or leased by that State Party. 2. Chapter II: Documentation and Duties of the Parties Relating to the Carriage of Passengers, Baggage, and Cargo Chapter II sets out 14 articles discussing the requirements of documentation relating to carriage under the Montreal Convention. These provisions were significantly updated from the previous equivalent provisions under the Warsaw System, reflecting an intention to simplify the documentation requirements and ensure their compatibility with modern technology. Critically, unlike under the Warsaw Convention, a failure to provide notice that the Montreal Convention applies or indeed any form of ticket does not affect the existence or validity of the contract of carriage or that the carriage shall be subject to the rules of the Montreal Convention (Art. 3(5)). There continues to be a requirement to provide an indication of the place of departure and destination, and if the place of departure and destination are within a single State but there is an agreed stopping place within the territory of another State, an indication of one such stopping place (Art. 3(1)). This requirement is primarily to provide assurance that the carriage is within the scope of the Montreal Convention. Articles 4–16 detail the requirements in relation to cargo operations and associated documentation. As for passenger tickets, a failure to comply with the provisions relating to cargo operation documentation shall not affect the validity of the contract of carriage and such contract shall still be subject to the rules of the Montreal Convention (Art. 9). Articles 4–8 provide rules on the contents and structure of the cargo operation documentation, while Articles 10–15 detail governing rules relating to the relationship between parties involved in different aspects of the cargo operation. 3. Chapter III: Liability of the Carrier and Extent of Compensation for Damage. Chapter III is the core of the Montreal Convention providing governing rules relating to the liability of the carrier for damage to passengers, baggage, and cargo.

Article 17 is a key provision in the Montreal Convention. In accordance with Article 17(1), a carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place onboard the aircraft or in the course of any of the operations of embarking or disembarking. Each of the terms within Article 17(1) have both been subject to significant litigation since the coming into force of the Montreal Convention, and they continue to draw reference to interpretation of these terms under the Warsaw Convention (albeit that the paragraphs are not identical). Some of the key terms are discussed below. The primary case interpreting an “accident” remains the US Supreme Court case of Air France v. Saks, requiring that an accident is an unexpected or unusual event that is external to the passenger, albeit that the European Court of Justice has introduced an alternative definition of this term as an unforeseen, harmful, and involuntary event (GN v. ZU). While Saks was an interpretation of the term under the Warsaw Convention, it has been repeatedly endorsed by courts in relation to interpretation under the Montreal Convention. Practically what constitutes an unexpected or unusual event is often measured against applicable operations manuals governing the issue complained of. Inaction by crew can amount to an accident, although in some jurisdictions (United Kingdom, Canada, Australia) the inaction is often recharacterized as a positive decision not to do something. The term “bodily injury” has been the source of significant litigation. Pure mental injuries without any associated bodily injury are not recoverable and do not fall within the definition of bodily injury (El Al v. Tseng, Eastern Airlines v. Floyd). There is a distinction to be drawn between emotional suffering with no associated structural impact on the brain (which is meant by the term “mental injury”) and proper brain injuries, which would fall within the term “bodily injury.” More difficult still is the question of whether mental injury is recoverable if there is associated bodily injury. In most jurisdictions, the courts have interpreted this provision to require that only mental injury that is caused by physical injury is recoverable, although in Doe v. Etihad it was held that any physical injury was sufficient to open the floodgates peter neenan

382  elgar concise encyclopedia of aviation law and allow recovery for any mental injuries, whether they were caused by the physical injury or not. The remainder of Article 17 and Article 18 deal with destruction, damage, or loss of checked baggage and cargo. Article 19 provides that a carrier shall be liable for damage occasioned by delay, although this provision is often not used where EU Regulation 261/2004 applies. Article 20 provides a defense to the carrier that they may be partially or wholly exonerated in circumstances where the passenger caused or contributed to the damage. Article 21 provides the two-tier system of liability that embodied the greatest change between the Montreal Convention and the earlier Warsaw System. The two-tier system provides strict liability up to a fixed amount with a presumption of unlimited liability and reversed burden of proof above that amount. For a carrier to limit their liability to the fixed sum under Article 21(1), the carrier must prove that the damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or that the damage was solely due to the negligence or other wrongful act of a third party (Article 21(2)). In practice, in major disasters, given the breadth of the possible negligent failures that could be captured by Article 21(2), air carriers rarely seek to limit their liability. At the time of the inception of the Montreal Convention, the fixed amount under Article 21 was 100 000 Special Drawing Rights (SDRs); however, in accordance with Article 24, the limits of liability in Article 21 (and 22 and 23) shall be reviewed at five-year intervals (although, in practice, it has happened only every ten years). As at 28 December 2019, the first tier of liability extends up to 128,821 SDRs. Unlimited liability above 128,821 SDRs does not mean unlimited compensation. Compensation is still limited to proven and recoverable damages actually suffered, although what constitutes proven and recoverable damages and how they are assessed varies from jurisdiction to jurisdiction. Article 22 provides the limits of liability in relation to delay, cargo, and baggage. Those limits were 4,150 SDRs (now 5,346 SDRs) in relation to delay, 1,000 SDRs (now 1,288 SDRs) in relation to baggage (unless a passenger has made a special declaration of interest and paid a supplementary sum), and 17 SDRs peter neenan

per kilogram (now 22 SDRs per kilogram) in relation to cargo. Articles 25–27 provide that a carrier may enter into a contract of carriage that includes provisions that do not conflict with the provisions of the Montreal Convention, and that they cannot contractually agree to a lower limit of liability (but they can agree to a higher limit). Article 28 provided a new requirement under the Montreal Convention that carriers provide advance payments to assist with immediate economic needs. In practice, in the case of a major disaster, those advance payments are usually c. $25,000. Article 29 sets out the preemptive effect of the Montreal Convention, such that an action can be maintained against a carrier only under the terms of the Montreal Convention. The equivalent provision was the subject of significant litigation under the Warsaw Convention, and those decisions remain good law in relation to the Montreal Convention. The practical effect of Article 29 is that if an event occurs between embarkation and disembarkation, a passenger may claim against the carrier only if the claim falls within the provisions of the Montreal Convention. A key provision within the Montreal Convention is Article 33, setting out the rules of jurisdiction. The four jurisdictions set out in the Warsaw Convention were retained (with a slight modernization of language) under Article 33(1), such that a claim may be brought, at the option of the plaintiff, where the carrier is domiciled, where it has its principal place of business, where it has a place of business through which the contract was made, or before the court at the destination of the carriage. One of the most controversial articles added to the Montreal Convention is Article 33(2); the so-called fifth jurisdiction. The inclusion of the fifth jurisdiction was spearheaded by the United States at the Montreal Convention. The resultant language reflects a compromise between the different parties. The article provides that an action may be brought at a court where the passenger has his or her principal and permanent residence, provided that a number of additional requirements relating to the air carrier’s connections to that State are met. The provision language is problematic in relation to non-scheduled carriage. In some jurisdictions, notably the United States, any jurisdiction selected by a plaintiff is subject to

the montreal convention (1999)  383 challenge by an air carrier under the doctrine of forum non conveniens. Article 34 provides the availability of arbitration in disputes relating to cargo, while Article 35 provides that actions must be brought within two years from the date of arrival at the destination, or when it would have arrived if it never did. Importantly, it has repeatedly been held that this limitation is incapable of extension by agreement between the parties, or by local procedural rules. Article 36 provides rules to determine apportionment of liability in cases in which carriage falls within the successive carriage provisions of Article 1(3), and Article 37 provides a right of recourse against other parties. 4. Chapter IV: Combined Carriage In cases of combined carriage (meaning part by air and part by other modes of carriage) Article 38 provides that (a) the Convention only applies to the carriage by air part and (b) nothing in the Montreal Convention prevents parties from agreeing to alternative conditions relating to the other modes of carriage. 5. Chapter V: Carriage by Air Performed by a Person Other than the Contracting Carrier Articles 39–41 set out rules relating to carriage where it is contracted with one carrier (the contracting carrier) but performed by another carrier (the actual carrier). The provisions were a necessary addition to deal with the increasing frequency of code share arrangements, and they essentially ensure that the contracting carrier and actual carrier are mutually liable (Article 41). 6. Chapter VI: Other Provisions Article 49-52 provide further provisions setting out that parties cannot contract out of or vary the provisions of the Montreal Convention, particularly in relation to the law to be applied and the jurisdiction. Article 50

purports to provide an obligation on State Parties to ensure that carriers maintain adequate insurance, although what constitutes adequate insurance is not defined. Ordinarily it is necessary to turn to domestic law for any mandatory insurance limits (see e.g. Regulation 785/2004). Article 51 relieves a carrier of its documentation requirements in the case of carriage in extraordinary circumstances and Article 51 is a procedural article clarifying the expression “days”. 7. Chapter VII: Final Clauses The most important provision within Chapter VII is the relationship with other Warsaw Convention instruments at Article 55. Critically this provides that where a State is party to the Montreal Convention as well any one of the many Warsaw System instruments, the Montreal Convention shall prevail over any other Warsaw System instrument. Peter Neenan

References Air France v. Saks Case No. 83-1785, Decision of 4 March 1985, 470 US 392, at 405 (1985). Doe v. Etihad Airways, 37 Avi. 17,281 (E.D. Mich. 2015). Eastern Airlines Inc v. Floyd (1991) 499 US 530. El Israel Airlines v. Tsu Yuan Tseng, 525 US 1999. EU Regulation 261/2004. GN v ZU (C-532/18). International Conference on Air Law, Montreal 10–28 May 1999, Volume I: Minutes. International Conference on Air Law, Montreal 10–28 May 1999, Volume III: Preparatory Material. The Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on 28 May 1999. The Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12 October 1929.

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109. Mortgage of Aircraft See entries: 21. Aircraft Financing (Finance and Operating Leasing); 22. Aircraft Financing (Purchase of Aircraft); 61. Deregistration of Aircraft; 85. Hull Insurance

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110. Multiple Designation I. Introductory Remarks The concept of designation in the aviation sector refers to the possibilities for a State to designate one, two, or multiple air carriers to perform international air services, as usually set by bilateral Air Services Agreements (ASAs) with other States. For each air carrier willing to perform international air services on certain routes, there is the specific need of a designation, by the competent civil aviation authority of the involved State. While in case of a single designation one air carrier is appointed to perform the agreed air services, in accordance with the principle of multiple designation more than two air carriers are chosen to operate on the routes.

II. Single, Dual, or Multiple Designation The concept of designation is strictly linked with: i) the principles governing international air transport market access; and ii) the possibilities that international air services on certain routes may be granted to one, two, or more air carriers, as designated by each State party to an ASA. In particular, according to the terms of an agreement between interested States, air services on specific routes may be performed through: i) a single designation: in this specific case, one air carrier is designated by each side of the agreement; ii) a dual designation, when two carriers are designated by each side of the agreement; iii) a multiple designation, according to which each side of the agreement adopts the so-called unlimited designation, thus appointing as many air carriers as it deems appropriate to perform international air services, based on various elements, such as the volumes and frequencies settled in the agreement. Therefore, when States involved in the negotiation of an ASA choose the multiple

designation regime, several air carriers of each party may enter the air services market. Hence, a consequence of a single designation regime may be to limit the fair competition among the designated air carriers (as anticipated, one for each party of the agreement). The designated air carriers could then settle the factual/practical terms for the operations of the international air services they have been granted – this, with foreseeable repercussions in terms of competition among the operators. The opposite may happen in case of the adoption of the multiple designation regime, which stimulates a fair competition among the various designated air carriers, consequently benefiting the entire market and enhancing conditions for air passengers.

III. Development of Designation Methods and Mandatory Requirements 1. Bilateral Air Services Agreements (ASAs) As anticipated, the single, dual, or multiple designation regime is chosen during negotiations of international air services agreements between States. The entire practice developed in the second half of the 20th century around the negotiation of ASAs, which can be considered under the perspective of the air carriers’ designation. Traditionally, ASAs have been used to implement the airspace sovereignty principle of the 1944 Chicago Convention, as declined in Article 6. Indeed, the permission/authorization to cross the airspace over which each State exercises its sovereignty has been granted by the signing of bilateral agreements, opening the national airspace and the aviation market to the provision of international air services. Hence, ASAs are the main sources for the regulation of international air services, they provide different levels of market access, and they set out rules pertaining to traffic rights, capacity, fares, slots, and designated air carriers. The primary objectives of an ASA are the management of market access (e.g., setting out the routes to be served, connection points, and traffic rights), of market entry (e.g., with the designation of the airlines), and of capacity and frequency of air services to be performed on the routes. Therefore, ASAs are the main tools used by each signatory State to establish and designate one, two, or more air carriers to operate on the agreed routes

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386  elgar concise encyclopedia of aviation law according to the single, dual, or multiple designation regime. Traditional agreements followed the principle of single designation, meeting the demands of States with a single national air carrier, while, for example, the United States has always preferred the multiple designation regime due to its large number of international air carriers. However, regardless of the type of designation regime chosen, to be appointed as operating air carriers – allowed to perform international air services on the routes as settled in an ASA – certain mandatory requirements shall be met by the operators. In particular, air carriers’ designation is subject to operators’ compliance with nationality requirements, safety standards, and other regulations. 2. Nationality Requirements Air carriers can be designated to operate international air services on certain routes if they possess the nationality of the State making the designation. The nationality requirement derives from rules pertaining to the “substantial ownership” and “effective control” of air carriers, provided by the International Air Services Transit Agreement, signed in Chicago on 7 December 1944 (henceforth also referred to as the Agreement). Article I, Section 5, of the Agreement states that: Each contracting State reserves the right to withhold or revoke a certificate or permit to an air transport enterprise of another State in any case where it is not satisfied that substantial ownership and effective control are vested in nationals of a contracting State, or in case of failure of such air transport enterprise to comply with the laws of the State over which it operates, or to perform its obligations under this Agreement.

This Article provides that each State has the right to withhold or revoke a certificate or operating license of an air carrier having nationality in another State, whenever the substantial ownership and effective control of the said air carrier is not held by nationals of the other contracting State. The “substantial ownership” is a legal condition that requires quantitative ownership by the State, its citizens, or both in the appointed anna masutti

air carriers. As per Article 4 of Regulation (EC) No. 1008/2008, substantial ownership is usually interpreted as requiring at least 50% in the carrier to be held by the designating State and its nationals, excluding non-voting shares. A notable exception is represented by the United States, which for its own carriers requires the 75% of voting stock to be owned by US citizens (see title 49, U.S.C. Section 40102(a)(15)(C)). The “effective control” is a factual condition under which the substantial national owner exercises ownership rights through a governance/management structure constituted by the citizens of the given State. From a practical point of view, negotiating States have usually a certain directionality in determining and interpreting what constitutes “substantial ownership” or and “effective control.” Therefore, if States disagree on the meaning or implications of the two concepts, they may hold consultations or arbitrations to solve disputes and to interpret the nationality clause under their bilateral agreement. Thus, the nationality requirement of air carriers – as a designation criterion and a market access condition – is strictly linked with economic and political interests. This is confirmed by the practice developed in recent years, according to which States often review the interpretation of the related clause and waive the application of the nationality requirement by the designated air carriers in order to promote foreign investments. As anticipated, the nationality requirement is the chosen tool for establishing a link between a State and its designated air carriers: only if the latter comply with the national requirements above they can be designated under air services agreements and are entitled to exercise international air services. After the designation, if the ownership and control requirements are satisfied, the other State accepts the designated air carriers as partner and, subject to thorough scrutiny of the nationality conditions, signs the air services agreement. In other words, the conclusion of the air services agreement for the purpose of engaging in commercial activity allows the designated airlines to perform the commercial services specified in ASA. Hence, the nationality requirement, as a designation criterion, offers protection from foreign ownership and control and, in the worstcase scenario, may prevent foreign air carriers from engaging in commercial activities.

multiple designation  387 3. Safety Standards and Other Regulations As anticipated, the nationality requirement is not the sole element to be considered in order to designate air carriers. Compliance with the safety standards set out by the International Civil Aviation Organization (ICAO) is another crucial requirement mandatory for the designation of air carriers and their exercise of international air services under the provision of an ASA. First, designated air carriers shall comply with national air navigation regulations, according to the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 (henceforth also referred to as the 1944 Chicago Convention). In particular, Article 11 of the 1944 Chicago Convention states that: Subject to the provisions of this Convention, the laws and regulations of a contracting State relating to the admission to or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be applied to the aircraft of all contracting States without distinction as to nationality, and shall be complied with by such aircraft upon entering or departing from or while within the territory of that State.

The mentioned regulations may pertain to several operational aspects. In the designation of air carriers, the negotiating parties usually start with verifying the compliance of the designated carrier with ICAO’s standards regarding aircraft certification and personnel licensing, as provided by Article 33 of the 1944 Chicago Convention: Certificates of airworthiness and certificates of competency and licenses issued or rendered valid by the contracting State in which the aircraft is registered, shall be recognized as valid by the other contracting States, provided that the requirements under which such certificates or licenses were issued or rendered valid are equal to or above the minimum standards which may be established from time to time pursuant to this Convention.

The standards mentioned in the latter rule shall be considered as minimum ones. States may indeed set higher standards for their own air carriers but not for foreign operators. They may do so since the imposition of standards

higher than those agreed upon the ICAO to foreign carriers led to disputes and policy repercussions. In this regard, and for the specific purpose of air carriers’ designation, an international air services agreement may foresee a clause requiring air carriers to satisfy norms outside the areas of safety, security, and protection of the environment, such as local noise regulations, standards on CO2 emissions, and norms and regulations pertaining to labor conditions.

IV. Concluding Remarks All the above considered, the multiple designation principles allow granting multiple air carriers the operations of international air services on specific routes – as settled by States in international air services agreements – have had a significant impact on the aviation sector, allowing for greater competition among operators and offering a number of benefits for passengers. The multiple designation of air carriers is alternative to the single and dual designation and – as it happens also in the alternative designation regimes – it is subject to several requirements, such as those related to the nationality of the chosen air carriers or to their compliance with safety standards and other regulations. Anna Masutti

References Air Service Agreement Liberalisation and Airline Alliances, International Transport Forum, 2014. L. Butcher, Aviation: European liberalisation, 1986–2002, 2010. K. Button, The Impact of US–EU “Open Skies” Agreement on Airline Market Structures and Airline Networks, 2008. Commission Staff Working Document, Evaluation of the Regulation (EC) No 1008/2008 on common rules for the operation of air services in the Community, Brussels, 2019. J. H. Cordes, Flying the Open Skies: An Analysis and Historical Perspective of the U.S.-Netherlands Bilateral Air Transport Agreement of September 4, 1992, Global Business & Development Law Journal, 1993. R. Doganis, The Airline Business, Second Edition, 2011. anna masutti

388  elgar concise encyclopedia of aviation law P. Forsyth, J. King, C. Lyn Rodolfo, & K. Trace, Preparing ASEAN for Open Sky, 2004. P. P. C. Haanappel, The Law and Policy of Air Space and Outer Space: A Comparative Approach, 2003. P. Mendes de Leon, Introduction to Air Law, Eleventh Edition, 2022. P. Mendes de Leon, J. De Wit, & G. Burghouwt, EU Air Transport Liberalisation Process, Impacts and Future Considerations, 2015.

anna masutti

Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community, as last amended in 2020. C. Westra, The April 2007 U.S.-EU “Open Skies” Agreement: A Dream of Liberalization Deferred, Boston College International and Comparative Law Review, 2009.

111. Nationality Clause

have the power to, for example, appoint and dismiss members of the board of directors. However, there are many possible reasons why this may not be the case, for example:

I. Introduction Nationality clauses are contained in air services agreements (ASAs), typically bilateral agreements entered into between two States. The nationality clause sets out the requirements that need to be met for a State’s airline to be designated, which is necessary for that carrier to operate the air services agreed under the terms of the ASA.

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II. Purpose Nationality clauses are designed to ensure that there is a sufficient connection between the air carrier and the designating State. Such a connection is important for political reasons, to avoid a situation where an air carrier is operating with a “flag of convenience,” and also for safety, to ensure that the designating State has sufficient oversight of the air carrier’s operations. States will typically also include nationality requirements in their national legislation, for example, as a condition to obtaining an operating license, often mirroring the nationality clause contained in its ASAs.

III. Traditional Clauses 1. Ownership and Control Requirements Nationality clauses typically require that the air carrier is substantially, or majority, owned and effectively controlled by the designating State and its nationals. Substantial ownership is usually interpreted as requiring at least 50% plus one share in the carrier to be held by the designating State and its nationals, excluding non-voting shares. A notable exception is the United States, which for its own carriers requires 75% of voting stock to be owned by US citizens (Title 49 U.S.C. Section 40102(a) (15)(C)). Effective control is more difficult to establish, and it requires an assessment of a variety of factors to determine who has the possibility of exercising decisive influence over the air carrier. As a starting point, effective control is usually exercised by the same persons with majority ownership, as these persons hold a majority of the voting shares and, therefore,

shareholder rights such as the ability to veto key decisions or call options to increase shareholding; co-operation agreements granting another airline powers to influence route or fleet management decisions; financial dependence on a particular shareholder, such that if the shareholder sold their shares the airline would face collapse.

2. Burden of Proof The burden of proof to establish that the requirements of the nationality clause are met rests with the designating State. However, it is at the other State’s discretion whether to enforce these requirements, which means that any concerns over the ownership and control of a carrier are often resolved as part of political discussions.

IV. Liberalized Clauses 1. Background Nationality clauses based on ownership and control are by far the most common, however there are many examples of ASAs with more “liberalized” nationality clauses. Multilateral agreements, for example, the International Air Services Transit Agreement 1944 (IASTA), allow air carriers to be substantially owned and effectively controlled by nationals of any contracting State (Article 1(5)). This is also the approach taken in many regional agreements, for example, in relation to intraEuropean Union (EU) air services (Reg 1008/2008, Article 3) and among Caribbean Community (CARICOM) member countries (Multilateral Air Services Agreement among the Members of the Caribbean Community, 2020, Article 1(4)). Going further, States such as Chile have removed the ownership and control requirements entirely, instead accepting designation of carriers that have their principal place of business, and are subject to effective regulatory control, in the designating State (see for example Latvia-Chile ASA, Article 3). This removal opens up the possibility of overseas investors taking large shares in air carriers, while also retaining a sufficient link

389

390  elgar concise encyclopedia of aviation law with the designating State. The International Civil Aviation Organization (ICAO) has drafted a Model Clause on Designation and Authorization in an effort to encourage States to adopt this more liberalized approach (ICAO Air Transport Conference/5, 2003). 2. Principal Place of Business and Effective Regulatory Control The principal place of business of an air carrier takes into account a variety of factors, including where the company is incorporated, pays taxes, bases and registers its aircraft, has physical facilities, and employs staff. This requirement is typically accompanied by a requirement of effective regulatory control to ensure that the link with the designating State for safety purposes is maintained even with the more liberalized nationality clause. The main evidence of this is that the air carrier has its Air Operator Certificate issued by the designating State, the issuance of which will itself be contingent on meeting the requisite safety standards. 3. Challenges Facing Liberalization Such liberalization remains the exception rather than the norm, both due to States continuing to view their air carriers as a strategic national asset and to the difficulties that States can face if other States do not accept their more liberalized terms. The EU, for example, has faced challenges in getting other States to accept an “EU carrier clause,” allowing air carriers owned and controlled by any EU Member State to be designated under a bilateral ASA between a Member State, or the EU and its Member States, and a third State, or another regional organization as to which see the EU-ASEAN Agreement of 2022. To help address relaxation of nationality requirements, ICAO has drafted a multilateral convention to encourage more States to adopt a more liberal approach to nationality clauses, though the text of the draft convention has been subject to much debate among ICAO Member States for over a decade.

V. Decisions Given the air policy nature of nationality clauses, there are few decisions applying the nationality criteria. As explained by Dempsey, the majority of disputes regarding aviation are resolved through negotiations or gavin rutter

unilateral coercion if one party has a more powerful bargaining position than the other (2004, p. 234). For example, in 2005 the United States barred Virgin Nigeria from operating services to the United States due to the UK-based Virgin Group’s stake in the carrier. Services were permitted to resume in 2006 (as reported by news24​ .c​ om). Also, in 2010 Russia threatened to challenge Austrian Airlines’ designation under the Austria-Russia ASA following its acquisition by Lufthansa Group (as reported by the Financial Times). The most notable decision is that of the European Commission in 1995 regarding the ownership and control of the Belgian airline Sabena in light of Swissair’s investment. The European Commission decided that the transaction complied with the EU ownership and control requirements, and it considered that the evaluation needed to “take into account the broader context in which that investment is taking place and, in particular, the Community’s aviation relations with the third country in question” (Swissair/Sabena Decision part XI). The Hong Kong Air Transport Licensing Authority (ATLA) also applied the principal place of business criteria when refusing Jetstar Hong Kong’s application for a license to operate scheduled air services, given that its principal place of business was not in Hong Kong. ATLA did, however, note that its determination of principal place of business in the context of a license application would not necessarily be the same as to how the term is interpreted in Hong Kong’s ASAs (ATLA Decision para 157).

VI. Guidance ICAO Doc 9626 (Manual on the Regulation of International Air Transport) includes guidance on the criteria contained in nationality clauses, and also summarizes developments including the adoption of more liberalized clauses (Part IV, chapter 5). At the regional and national level, organizations have published guidance on the criteria as it applies to the granting of an operating license, for example, the European Commission 2017’s guidelines on the EU ownership and control rules and the UK’s CAA’s guidance on principal place of business (CAP1539, 2017). Gavin Rutter

nationality clause  391

References Air Services Agreement between the Government of the Republic of Latvia and the Government of the Republic of Chile, signed in Bogota 6 December 2021. Available at: https://likumi​.lv​/ta​/id​/331268​ -air​ - services​ - agreement ​ - between ​ - the​ -government​-of​-the​-republic​-of​-latvia​-and​ -the​-government​-of​-the​-republic​-of​-chile. Commission Decision 95/404/EC on a procedure relating to the application of Council Regulation (EEC) No 2407/92 (Swissair/Sabena) [1995] OJ L239/19. Commission Notice C(2017) 3711, Interpretative Guidelines on Regulation (EC)1008/2008 – Rules on Ownership and Control of EU Air Carriers. European Parliament, International Aviation Agreements: At a Glance, October 2019. Available at: https://www​.europarl​.europa​ .eu​/ RegData​/etudes​/ATAG​/2019​/642222​/ EPRS​_ATA(2019)642222​_EN​.​pdf. Financial Times, ‘Russia threatens to ban Austrian flights’ (28 February 2010). Available at: https://www​.ft​.com​/content​ /e27168fa​-24a2​-11df​-8be0​- 00144feab49a accessed 13 April 2022. Hong Kong Air Transport Licensing Authority, Public Inquiry with Regard to the Application for licence by Jetstar Hong Kong Airways Limited, written decision 25 June 2015. Available at: https:// www​.thb​.gov​.hk​/eng​/ boards​/transport​/air​ /Full​ %20written​ %20decision​ %20(Eng)​ %2025062015​.pdf.

ICAO Air Transport Conference/5, Consolidated Conclusions, Model Clauses, Recommendations and Declaration, 31 March 2003, p. 5. Available at: https:// w w w​ . ic a o​ . i nt ​ / Me e t i ngs ​ /AT C o n f 5​ / Documents​/ATConf5​_conclusions​_en​.pdf. International Air Services Transit Agreement, signed at Chicago on 7 December 1944. International Civil Aviation Organisation, Manual on the Regulation of International Air Transport (Doc 9626, 3rd edn, 2018) part IV, ch 5. Multilateral Air Services Agreement amongst the Members of the Caribbean Community, Entry into Force 17 August 2020. Available at: https://caricom​.org​/treaties​/multilateral​ -air​-services​-agreement/. News24, ‘US, Nigeria flights to resume’ (11 July 2006). Available at: https://www​ .news24​.com ​/fin24 ​/ us​-nigeria​-flights​-to​ -resume​-20060711 accessed 13 April 2022. Paul Dempsey, ‘Flights of fancy and fights of fury: Arbitration and adjudication of commercial and political disputes in international aviation’ (2004) 32 GA.J.INT’L&COMP.L. 231. Regulation (EC) No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community (Recast) [2008] OJ L293/3. UK Civil Aviation Authority CAP1539, UK CAA Interpretation of Principal Place of Business, March 2017. Available at: https://www​.caa​.co​.uk​/cap1539. U.S. Code, Title 49.

gavin rutter

112. Noise See entries: 26. Airport Charges; 32. Airports and Aerodromes; 38. Aviation Emissions: The Global and EU Approaches; 65. Environmental Protection in Aviation; 66. EUROCONTROL; 68. European Civil Aviation Conference; 142. Sustainability in Aviation

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113. Non-revenue Flights

procedures to be contained in it, whereas the hypotheses listed right after – of exemplary nature – encompassed the ones of Council Regulation (EEC) No 3922/91 and a new one. The preexisting situations were preceded by I. Definition a reference to non-commercial operations “Non-revenue flights” is a generic term that conducted by the holder of an Air Operator’s encompasses different types of flights where Certificate (AOC) and a description of the there are neither fare-paying passengers differences with respect to commercial opernor revenue-generating cargo or mail, as ations, aspects also to be included in the operexplained by the European Union Aviation ations manual. Safety Agency (EASA) (2015, p. 8). From an The described vagueness led to shortcomoperational point of view, it is equivalent to ings in terms of identification of the specific “non-commercial flights,” the latter being cur- activity being performed, with the subserently preferred in the European Union con- quent problem of determining the appropriate text (EASA 2019, pp. 12, 19). The approach to operational framework, in a context of divergthe notion can also be done by referring to the ing national requirements. Operators defined specific purposes eventually pursued while their own programs and sometimes resorted conducting a flight without receiving any to guides drafted by manufacturers (BEA compensation, such as crewmember train- 2010, pp. 74–75, 87), but the overall situation ing, maintenance, ferrying, re-positioning, or was sub-optimal. It has often been reported a carrying company officials – operations men- higher risk of incidents in non-revenue flights tioned in documents of the Federal Aviation in comparison with commercial ones, someAdministration (FAA) (2016, p. 1). An insuf- thing linked to their non-standard nature ficient conceptualization may give rise to (Eurocontrol 2022). In fact, changes made with some confusion and uncertainty, whereas a regard to non-revenue flights are inspired by list-based approach brings the risk of unduly recommendations issued by agencies investiexcluding some operations, or at least raising gating incidents, a paradigmatic example being doubts on whether they are covered or not. the so-called Perpignan accident that took place Focusing on the European Union sce- on 27 November 2008. However, not all nonnario, when Annex III was inserted into revenue flights entail the same higher risk. This Council Regulation (EEC) No. 3922/91 of is why EASA considers reasonable to maintain 16 December 1991 on the harmonization of flexibility and allow operators to undertake risk technical requirements and administrative assessments adapted to the numerous existing procedures in the field of civil aviation, the profiles of non-routine operations, while the term “non-revenue flights” was present in FAA’s approach is somewhat different, more Appendix 1 to OPS 1.1045 with regard to nuanced. Precision is also important from the the contents to be reflected in the operations point of view of insurance. On the one hand, manual. Point 8.7 outlined a list of hypotheses requirements may differ across jurisdictions considered as such – training, test, delivery, depending on the kind of non-revenue operaferry, demonstration, and positioning flights – tion or on its particular features. On the other and the operator had to ensure the manual hand, and most importantly, the specific operacontained the procedures and limitations for tion or occurrence may not be covered due to them. However, that was the only reference the terms, conditions, limitations, and excluto a notion otherwise undefined in the text. sions agreed in the insurance policy. The repeal of the aforementioned Annex III The current regulatory state of affairs at did not substantially alter the situation, per- the European Union level and EASA’s latest petuating a problematic lack of precision. Acceptable Means of Compliance (AMC) Within the new Commission Regulation and Guidance Material (GM) provide a more (EU) No 965/2012 of 5 October 2012 laying consistent and detailed picture of non-revenue down technical requirements and administra- flights. tive procedures related to air operations, rule The term “non-commercial flights” has ORO.MLR.100 in Annex III mandated oper- become the official one at the expense of ators to establish an operations manual. The “non-revenue flights,” even if the latter is EASA’s Acceptable Means of Compliance sporadically used (see AMC1 21.A.163(d)). (AMC) AMC3 ORO.MLR.100 mentioned The change is a step aiming at coherence and non-revenue flights among the operating clarity, due to the fact that Article 2(1d) of 393

394  elgar concise encyclopedia of aviation law Commission Regulation (EU) No 965/2012 contains a definition of “commercial operation.” Consequently, whereas “non-revenue flight” would remain an isolated term, the concept of “non-commercial operation” can easily be reached – any operation not falling within Article 2(1d). That is, any operation of an aircraft not “in return for remuneration or other valuable consideration, which is available for the public or, when not made available to the public, which is performed under a contract between an operator and a customer, where the latter has no control over the operator.” In addition to that, “non-commercial flights” (and not “non-revenue flights”) was the term used in other linguistic versions of point 8.7 of Annex III to Council Regulation (EEC) No. 3922/91, such as the French, Italian, Portuguese, and Spanish ones. In the US context, a similar outcome can be reached by taking as starting point the definition of “commercial operator” contained in Title 14 of the Code of Federal Regulations (CFR), Part 1, § 1.1. A non-revenue or noncommercial flight would then be an operation not made for compensation or hire. In case of doubt, the applicable test consists in determining whether the carriage is “merely incidental to the person’s other business or is, in itself, a major enterprise for profit.”

II. The EASA’s Approach EASA’s AMC3 ORO.MLR.100 affirms that the operations manual should contain information on non-commercial operations for each type of non-commercial flight performed by the holder of an AOC, including the differences with regard to commercial air transport. The manual should include procedures and limitations for a series of flights indicated in the said AMC for illustrative purposes. Those are training, delivery, ferry, demonstration, and positioning flights; flights at the end of lease or upon transfer of ownership; and other non-commercial flights. The specific reference to the end of a lease can be easily understood by signaling that it was the situation in the non-revenue flight that resulted in the Perpignan accident, while the closing category tries to avoid any gaps. A reference to test flights is no longer found because EASA’s interprets them as being “maintenance check flights” (2012, pp. 68–69) – sometimes qualified as a subtype of a wider category called “functional check flights” – and which are ricardo pazos

covered by their own set of rules. Indeed, maintenance check flights, included among the examples of “specialized operations” in Article 2(7) of Commission Regulation (EU) No 965/2012, are defined in point 76a of its Annex I. Furthermore, they are the subject matter of Section 6 in Subpart E of Annex VII concerning non-commercial air operations with other-than-complex motor-powered aircraft, and section 5 in Subpart E of Annex VIII on specialized operations. Another categorization of non-commercial flights can be done based on EASA’s GM1 Article 2(1d). This is helpful for operators to better define the type of activity to be performed and develop tailored risk mitigation plans. Other than maintenance check flights, “demonstration flights” encompass different scenarios, where, in principle, no flight maneuvers leading to unexpected reactions by the aircraft should occur. The first is that one of the so-called proving flights or operational evaluation flights. Their aim is showing either the aircraft’s capabilities – its handling, performance, and functionalities – to buyers or lessees, or the aircraft’s flying characteristics or the operational procedures to a competent authority. The second scenario relates to a flight at the end of a lease or upon transfer of ownership, aiming at determining whether the aircraft meets the agreed contractual specifications, the reason why it is also known as acceptance flight. The third hypothesis is the “public relations flight,” one in which official or media representatives are carried free of charge for the sake of the operator’s business. As for “ferry flights,” their purpose is simply changing the aircraft’s location – something that explains why another usual denomination for them is relocation flights. Depending on its specific features, the operation can be qualified as a delivery, a positioning, or a recovery flight. The category of “training flights,” conducted to instruct the operator’s crewmembers, does not cover line flying under supervision or line checks, since these are activities commonly performed in the course of revenue or commercial flights, namely, commercial air transport. Lastly, other examples of non-commercial flights are “corporate flights” – sometimes referred to as business flights – conducted for business purposes; “leisure flights,” also known as private flights; “managed flights,” where the operator carries out the operation for the business purposes of the aircraft owner without receiving

non-revenue flights  395 any remuneration or valuable consideration; and “charity” and “humanitarian” flights. The holder of an AOC does not need prior approval to conduct non-commercial operations with an aircraft listed in the operations specifications of its AOC or in its operations manual (rule ORO.AOC.125 of Commission Regulation (EU) No. 965/2012). The AOC holder will have to exhaustively describe those operations in the manual, but it is given flexibility to determine the most appropriate requirements. It may perform the flights following the operational procedures applicable to commercial air transport operations, complying with the relevant provisions, and simply stating this feature in the operations manual without any further description. But it may also do so on the basis of different operational procedures. In the latter case, the AOC holder must comply with Annex III (Part-ORO) and either Annex VI (Part-NCC) or Annex VII (Part-NCO) to Commission Regulation (EU) No 965/2012. For each non-commercial operation, the AOC holder should undertake the corresponding safety risk management process (point a.3 of rule ORO.GEN.200). It is not needed to remove the aircraft from the list of the Air Operator’s Certificate if certain conditions are met (rule ORO.GEN.310), but the application of some provisions will have to be considered. Especially, rule NCO. GEN.104 of Annex VII to Commission Regulation (EU) No 965/2012 when noncommercial operations are conducted by way of an other-than-complex motor-powered aircraft listed on an operator’s AOC, and rule M.A.201(k) of Annex I and rule ML.A.201(h) of Annex Vb to Commission Regulation (EU) No. 1321/2014 of 26 November 2014 on the continuing airworthiness of aircraft and aeronautical products, parts, and appliances, and on the approval of organizations and personnel involved in these tasks. If the aircraft conducting a non-commercial operation has a maximum operational passenger seating configuration of more than 19, in principle at least one cabin crew member shall be assigned when carrying at least one passenger. However, the competent authority may approve its performance without any operating cabin crew members, provided that two conditions are met. First, no more than 19 passengers can be onboard. And, second, the operator must have developed procedures for the operation at issue (rule ORO.CC.100(d) of Commission Regulation (EU) 965/2012).

III. The FAA’s Approach For its part, acknowledging the higher risk of non-revenue flights and in order to mitigate the problem, the FAA shows a clear preference for conducting them under the standard operating procedures for commercial flights, or at least with as few deviations as possible. However, if an operator decides otherwise, it should carry out several demanding, safety-enhancing actions. First, specifying both how operational control will be handled and the supporting information and services that will be provided to the flight crew. And second, conducting a Flight Operations Risk Assessment for the specific mission at hand. This assessment must be strictly respected by all those intervening at any stage of the nonrevenue flight, and its most important features should be subjected to a crosscheck by a qualified person. Considering that non-revenue flights is a heterogeneous category encompassing different types of flights, there will be further requirements to be met for each one. Special attention is drawn to the flight crew being adequately prepared. In this regard, additional information on the operation should be supplied in the operations manual. If a normal checklist is not suited because the operation will require to deactivate aircraft systems, amended or supplementary checklists are to be provided and used during the crew training. In fact, if the operation to be conducted requires intentionally degrading some systems, the flight crew should undergo a task-specific program of training. Persons occupying flight deck seats will be briefed before the operation, and appropriate additional time for it should be planned. Lastly, for those persons having access to the flight deck during the non-revenue flight, their role should be defined in writing and will be covered by the overall procedures of the particular type of flight (FAA 2016, pp. 1–2). Non-revenue flights are governed by Part 91 of Title 14 of the Code of Federal Regulations, while ferry, training, and demonstration flights are explicitly mentioned among the operations that may be conducted under the rules of its Subpart F instead of those in other eventually relevant parts (14 CFR § 91.501(b)). Regarding demonstration flights specifically, Subpart F may apply even if some charges are made. However, the expenses susceptible of being charged are strictly determined. For instance, twice ricardo pazos

396  elgar concise encyclopedia of aviation law the cost of fuel, oil, lubricants, and other additives, insurance for the specific flight concerned, landing fees, airport taxes, and custom duties (14 CFR § 91.501(b)(3) and (d)). It is also worth noting that the fact that a flight in question is performed for purposes of training, delivery, positioning, or relocation for maintenance – typical operations of non-revenue flights – plays a relevant role in certain specific contexts. For instance, on the operation of a restricted category civil aircraft (14 CFR § 91.313(b)) and in fractional ownership operations (14 CFR § 91.1009(b) (1)). As a final remark, it must be highlighted that “ferry flight” is a common appellation for flights carried out under a special flight permit. This may be issued for an aircraft not meeting the applicable airworthiness requirements but capable of flying safely, for certain purposes. Hypotheses include some demonstration flights, delivery flights, recovery flights, and operations to move the aircraft either to a base where repairs, alterations, or maintenance are to be performed or to a point of storage (14 CFR § 21.197). Ricardo Pazos

References BEA (Bureau d’Enquêtes et d’Analyses pour la sécurité de l’aviation civile), ‘Rapport. Accident survenu le 27 novembre 2008 au large de Canet-Plage (66) à l’Airbus A320232 immatriculé D-AXLA exploité par

ricardo pazos

XL Airways Germany’ (September 2010) accessed 13 April 2022. EASA (European Union Aviation Safety Agency), ‘Explanatory Note to Decision 2019/019/R’ (17 September 2019) accessed 13 April 2022. EASA (European Union Aviation Safety Agency), ‘Notice of Proposed Amendment 2015–05. Non-commercial operations of aircraft listed in the Operations Specifications (OpSpecs) by an AOC holder’ (30 March 2015) accessed 13 April 2022. EASA (European Union Aviation Safety Agency), ‘Comment Response Document (CRD) to Notice of Proposed Amendment (NPA) 2008–20’ (13 September 2012) accessed 13 April 2022. Eurocontrol, ‘Non Revenue Flights’ (SKYbrary) accessed 13 April 2022. FAA (Federal Aviation Administration), ‘Information for Operators (InFO) 16006’ (29 May 2016) accessed 13 April 2022.

114. Notice to Air Missions (NOTAM) I. Origin and Crisis Following the model of Notice to Mariners, which advised ship captains of hazards in navigating the high seas, Notice to Air Missions (NOTAM) started to be used for airspace in 1947, and the acronym came into common use as a consequence of the Convention on International Civil Aviation entering into effect. Because of the spread of this means and the expansion of aviation, there can be around 35,000 active NOTAM circulating in the aeronautical world. The total number of NOTAM issued in a year can exceed 1.7 million. This situation can lead to chaos. In fact, in July 2017, Air Canada flight 759 nearly crashed into four other airliners as it attempted to land on a San Francisco taxiway misidentified as a runway. A misunderstanding with the information in the NOTAM constituted the remote cause (the NOTAM was not found because it was buried). The National Transportation Safety Board (NTSB), the air accident investigation board in charge of the investigation, stated that NOTAM were unintelligible and ignored, and this body recommended a more effective information presentation. Besides, and although due to the COVID19 pandemic, the total number of NOTAM decreased by 5% in 2020, it was necessary to harmonize the format. Coordination Cell (EACCC) COVID-19, the European Union Aviation Safety Agency (EASA) issued instructions to harmonize the NOTAM format through a Safety Information Bulletin (30 June 2020). All that mentioned reasons justifies why ICAO, in collaboration with its seven regional offices, launched a new Global Campaign on NOTAM improvement (NOTAM2021) in order to reach a significant reduction in the number of old NOTAM still in circulation.

II. Definition of NOTAM The acronym NOTAM has traditionally meant Notice to Airmen. But the Federal Aviation Administration recently published Order 7930.2S, Change 2, “Notices to Air Missions (NOTAM),” which took effect 2 December to change the meaning of the acronym. The

traditional meaning of “Notice to Airmen” changed to the wider definition “Notice to Air Missions” from that day. It is a notice containing information essential to personnel concerned with flight operations (the establishment, condition, or change in any aeronautical facility, service, procedure, or hazard), the timely knowledge of which is essential to personnel concerned with flight operations, but not known far enough in advance to be publicized by other means. To understand the role of these documents, it is crucial to remember that the NOTAM state the abnormal status of a component of the National Airspace System, not the normal status. NOTAM are communicated by the Aeronautical Information Service (AIS) using the fastest available means to all addressees for whom the information is assessed as being of direct operational significance, and who would not otherwise have at least seven days’ prior notification. Flight crew access to current NOTAM during pre-flight planning may be via airport Flight Briefing Facilities provided for all aircraft operators or via an alternative “tailored access” system provided by their company which will provide access to NOTAM that are relevant only to their intended flight.

III. Format Although NOTAM are encoded, for reasons of conciseness and precision, the code is usually sufficiently self-evident to allow the user to identify a hazard. As we will explain later, the ICAO NOTAM format is composed of the signification, i.e., uniform abbreviated phraseology assigned to the ICAO NOTAM Code complemented by ICAO abbreviation, indicators, identifiers, designators, call signs, frequencies, figures, and plain language. Related to the issuing format, mention must be made to the EUROCONTROL Digital NOTAM (xNOTAM) Project. This initiative is in place in cooperation with US FAA and will make NOTAM suitable for automatic processing. This will enable automated systems that support ATC and air navigation to have a more actual view of the aeronautical environment, thus maintaining and enhancing existing levels of safety and efficiency of the ATM system. The FAA is changing the format for NOTAM to align with international standards. The target date for the implementation

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398  elgar concise encyclopedia of aviation law of this change is winter 2024. This goal will facilitate establishing the global standardization set by the ICAO.

IV. Components of NOTAM NOTAM construction is created using a standardized order: ●

●

●

●

accountability is always first. The accountability is a geographic tag; NOTAM number: (MM/NNN). MM is the two-digit month, and NNN is the three-digit number, ranging from 001 to 999. Since the NOTAM number contains month and not year, the NOTAM do not necessarily appear in chronological order; affected location. The location identifier component is the affected facility or location [airport, Navigational Aid (NAVAID), or Air Route Traffic Control Center (ARTCC)] and it appears after the NOTAM number. When the location occupies more than one ARTCC (e.g., an approach control or an airspace) a separate NOTAM will exist for each affected ARTCC; keyword. Following the location identifier, each NOTAM will contain one of the following 20 keywords. Information valid through December 2020: ● RWY – Runway ● IAP – Instrument Approach Procedure ● VFP – Visual Flight Procedure ● DVA – Diverse Vector Area ● TWY – Taxiway ● AD – Aerodrome ● OBST – Obstruction ● NAV – Navigation ● COM – Communication ● SVC – Services ● ODP – Obstacle Departure Procedure ● SID – Standard Instrument Departure ● STAR – Standard Terminal Arrival ● CHART ● DATA ● AIRSPACE ● SPECIAL ● SECURITY ● ROUTE ● APRON.

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The Start of Activity and the End of Validity are always the final components. All NOTAM times are described in Coordinated Universal Time. A ten-digit date-time group (YYMMDDHHMM) UTC indicating: the time at which the NOTAM comes into force (the date/time a condition will begin) and the time at which the NOTAM ceases to be in force and becomes invalid (the expected time of return to service, return to normal status, or the end of the activity). Several additional elements may be included when needed, such as facility, feature, service, system, and/or components thereof. It is always possible to add remarks. Remarks are any additional pieces of information that might benefit the pilot.

V. Classification According to FAA, NOTAM information is classified into several categories. The distinction between Class I and Class II is related to the way they are distributed: class I are distributed by means of telecommunication, and class II are published in the Notices to Airmen Publication (NTAP), which is issued every 28 days. Trigger NOTAM serve to alert those who maintain aeronautical databases that specific changes will be effective soon, usually at the next AIRAC date. A trigger NOTAM contains a brief description of the contents of the amendment or supplement, the effective date, and the reference number of the amendment or supplement. It is usually valid for 14 days. Another criterion that we can apply to NOTAM is the geographical extent, international or domestic. We also can distinguish between civil and military. FDC NOTAM: Flight Data Center NOTAM are NOTAM that are regulatory in nature, such as changes to an instrument approach procedure or airway. Temporary Flight Restrictions (TFRs) are also issued as FDC NOTAM. Center Area NOTAM: An FDC NOTAM issued for a condition that is not limited to one airport, therefore it is filed under the Air Route Traffic Control Center (ARTCC) that controls the airspace involved. TFRs, airway changes, and laser light activity are examples of this type of NOTAM. Knowing this is important when looking for NOTAM on your own.

notice to air missions (notam)  399 NOTAM (D): A NOTAM given (in addition to local dissemination) distant dissemination beyond the area of responsibility of the Flight Service Station. This type of NOTAM now includes (U) NOTAM and (O) NOTAM. (U) NOTAM are unverified NOTAM, which are those that are received from a source other than airport management and have not yet been confirmed by management personnel. These are operational only at those airports where airport management has authorized it by Letter of Agreement. (O) NOTAM are other aeronautical information that does not meet NOTAM criteria but may be beneficial to aircraft operations. PERM NOTAM advertise a permanent condition to be published in a publication, chart, or database. If the End of Validity time is not known estimate using a ten-digit datetime group.

VI. Examples Some examples of situation that are informed through NOTAM are the following: hazards such as airshows, parachute jumps, and glider or micro-light flying; flights by important people such as heads of State; closed runways, taxiways, etc.; unserviceable radio navigational aids; airspace restrictions due to military exercises; unserviceable lights on tall obstructions and temporary erection of obstacles near airfields (e.g., cranes). Snow conditions are notified, not by NOTAM but by a special message called SNOWTAM (defined as a special series NOTAM notifying the presence or removal of hazardous conditions due to snow, ice, slush, or standing water associated with snow, slush, and ice on the movement area by means of a specific format). Similarly, volcanic ash is identified as a special message known as an ASHTAM. Full details concerning the content and distribution of NOTAM, SNOWTAMs, and ASHTAMs are contained in ICAO Annex 15.

VII. Mandatory NOTAM

Information Service which the applicant must address, and the procedure that he or she must follow. For example, it is mandatory to apply a NOTAM for several general aviation activities, like parachuting, aerial exhibitions, and races. Equally, it is necessary to issue a NOTAM for operations with unmanned aircraft vehicles in non-segregated airspace. Anyway, the local regulation may differ about the requirements of the vehicles, the operational environment, and the allowed maneuvers. María Jesús Guerrero Lebrón

References Commission Regulation (EU) 2017/373, on 1 March 2017, laying down common requirements for providers of air traffic management/air navigation services and other air traffic management network functions and their oversight, repealing Regulation (EC) No 482/2008, Implementing Regulations (EU) No 1034/2011, (EU) No 1035/2011 and (EU) 2016/1377 and amending Regulation (EU) No 677/2011. European Aviation Crisis Coordination Cell (EACCC) COVID-19, Harmonized NOTAM Format. FAA, Advisory Circular (AC) 150/520028, NOTAMs for Airport Operators, 30 December, 2016. FAA, Order 7930.2S, Change 2, Notices to Air Missions (NOTAM), 11 December, 2018. FAA, Order JO 7340.2K, Contractions, the manual for commonly used contractions, 3 June, 2019. ICAO, Doc 10066, Aeronautical Information Management, first edition, 2018. ICAO, Doc 8126, Aeronautical Information Services Manual, seventh edition, 2021. ICAO, Doc 8400, ICAO Abbreviations and Codes, eighth edition, 2010. ICAO, Annex 15, Aeronautical Information Services, sixteenth edition, 2015.

Domestic rules establish the cases in which is necessary to apply them, the Aeronautical

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115.  Open Skies See entries: 12. Air Services Agreements; 90. International Aviation Law; 104. Liberalization of the EU Air Transport Market; 110. Multiple Designation; 123. Pool Agreements; 134. Scheduled and Nonscheduled Air Services

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116. Operation of European Air Services I. Definition The definition of European Air Services is based on Common Rules for the Operation of Air Services in the Community, namely on the definition of the term “Air Service” as of Article 2 (4) of the Regulation (EC) 1008/2008. It states that “Air Service means a flight or a series of flights carrying passengers, cargo and/or mail for remuneration and/or hire.” Whereas Regulation (EC) 1008/2008 does not explicitly define all types of air services, air service can be divided into two categories: scheduled and non-scheduled services. Scheduled Air Services transport individuals or cargo on a published timetable or other recurring series of flights. Every person can book a seat from the provider and travel on a set date to the desired destination. The requirements of scheduled air services go back to the 1950s when the International Civil Aviation Organization provided the specification to differentiate between scheduled and non-scheduled air services since both types of services were subjects to different provisions. Non-scheduled air services are understood as every other use of an airplane that does not follow a regular plan, for instance charter flights.

II. Regulation (EC) 1008/2008 In 2008, Regulation (EC) 1008/2008 came into effect with the result of integrating uniform rules for the operation of scheduled and non-scheduled air services. The provisions apply mostly to both types of services; however, there are some differences between scheduled and non-scheduled air services in the fields of operating licenses and public service obligations. 1. History of Origin While the air transport market was regulated by bilateral air services agreements between the Member States, in the 1980s and 1990s the European Economic Community (EEC), now European Union (EU), created an internal air transport market. The liberalization of air services was part of the process of

implementing a European internal market for air transport. The new system broke down barriers to simplify the exercise of air services in the EU. Restrictions on routes and on the amounts of flights were lifted. After three air liberalization packages in 1987, 1990, and 1992, air services are now regulated by the Air Service Regulation (EC) 1008/2008, which repeals Regulations (EEC) No. 2407/92, No. 2408/92, and No. 2409/92. 2. Main Objectives and Motives EU Regulation 1008/2008 is designed to meet consumer interests, to implement safety measures, and to increase the overall efficiency of the aviation market. 3. Content Regulation 1008/2008 entails harmonized regulations about operating licenses, ownership and control of air carriers, leasing, public service obligations, and price transparency as well as traffic distribution rules for the countries within the Community. Every Community air carrier is permitted to offer scheduled or non-scheduled air services between airports located in the EU/ EEA. An EU air carrier does not need special permission by a Member State and does not have to take into account any restrictions to provide its air services, which are subject to environmental restrictions and safety and congestion concerns. Every EU air carrier must be granted an appropriate operating license before entering the service sector. Chapter II of EU Regulation 1008/2008 deals with operating licenses and lays out conditions, validity information, and suspension and revocation scenarios as well as the procedures for granting, suspending, or revoking operating licenses. To receive an operating license, the air carrier must present a certain company structure and proof of financial stability. The licensing authority has to assess if the air carrier can meet its potential obligations for a period of 24 months as well as its fixed and operational costs for the next three months. Furthermore, the operating license receiver shall submit a business plan for the first three years of operation. There are exceptions of those conditions if an undertaking intends to cover operations with aircraft of less than 10 tons maximum takeoff mass (MTOM) and/or less than 20 seats. Alternatively, to the regular rules, they shall demonstrate that their net capital is

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402  elgar concise encyclopedia of aviation law at least EUR 100 000 or provide all significant information for the purposes of the assessment that are laid down in Article 5 para. 1 and No 1 of Annex I of the regulation. However, these exceptions refer to undertakings that aim to operate only non-scheduled air services. If the air carrier seeks to perform scheduled air services, the licensing authority applies the general conditions of financial stability. There is another exception for air carriers that operate aircraft for non-scheduled air services with less than 10 tons MTOM and/or less than 20 seats. Such an undertaking must not regularly provide audited accounts or give updates on intended business decisions, for example, the operation of new air services, mergers, or acquisitions and changes in the ownership that normally have as their consequence drafting a new business plan to the competent licensing authority. Community air carriers that operate scheduled air services, on the other hand, are obliged to follow these requirements when demanded to do so by the competent licensing authority. The chapter dealing with operating licenses also contains provisions on ownership and control of air carriers. Scheduled or unscheduled air services must be owned and controlled by more than 50% of Member States and/or its nationals. Only then can an operating license be granted. Changes in the ownership that exceed 10% of the total shareholding must be communicated within 14 days to the responsible authority. By harmonizing the ownership and control provisions on Community level, Member State undertakings can start operations not only in their own Member State but also in every State of the European Union. The Regulation paves the way for dry and wet lease agreements so Community air carriers can offer air services with leased aircraft. However, there may be some restrictions, for instance, if an aircraft that is part of a wet leasing agreement and is registered in a third country. In this case, prior approval for the operation is needed. While most provisions in Regulation 1008/2008 are equally applicable to scheduled and non-scheduled air services, the provisions dealing with public service obligations pertain only to the operation of scheduled air services. By implementing a public service obligation for a route between two cities, the Member State ensures that a specific region in its territory stays connected and sybille rexer

therefore secures social and economic development in this area. The right to offer scheduled air services for the selected air route will be awarded by a public tender procedure. The Member State informs the Commission on the ongoing public service obligation for further examination and review. Chapter IV of EU Regulation 1008/2008 lays down the principle of pricing freedom for air carriers and simultaneously introduces consumer protection provisions that ensure that every price is transparent and that all taxes and basic charges are included in the booking process. The freedom to operate air services may also be restricted in the context of the scheme concerning the distribution of air traffic between airports. An EU State is entitled to manage traffic between airports located near a “‘conurbation.” 4. Changes in (EC) 1008/2008 Due to COVID-19 The COVID-19 pandemic led to a reduction of air services in the EU. Union air carriers, as well as ground handling services, faced liquidity problems. This led to an amendment of EU Regulation 1008/2008 in two steps. First, in May 2020, Regulation (EU) 2020/696 lowered the requirements for the financial stability of air carriers. Provided that safety is not at risk and that financial reconstruction in the next year is likely, the competent licensing authority could decide to not suspend or revoke the operating license in case of liquidity problems of the undertaking until 31 December 2020. Moreover, the last-mentioned Regulation limited the liberalization of the European aviation market by empowering Member States to “refuse, limit or impose conditions on the exercise of traffic rights if this action is necessary in order to address the COVID-19 pandemic.” 5. Outlook Even before the COVID-19 pandemic, the European Commission saw the need to evaluate the Air Service Regulation so it could tackle existing problems in the air service sector. In July 2019 it published the over 200page long result of its initiative. The document determined weaknesses especially in the fields of “operating licenses,” “ownership and control,” and “traffic distribution” that still exist and that will need to be addressed in the future.

operation of european air services  403 While the last three amending Regulations concerned the pandemic, the European Commission currently carries out a revision of the Air Service Regulation. In 2008 the Regulation (EC) 1008/2008 improved the European internal aviation market. Next to developing these provisions further, the focus nowadays lies on a better crisis management, the process of decarbonization, and implementing digital and smart systems that enable the aviation sector to improve operations of scheduled and non-scheduled air services. Sybille Rexer

2008 on common rules for the operation of air services in the Community (18 December 2020). Convention on International Civil Aviation, signed at Chicago on 07 December 1944, Available at: https://www​.icao​.int​/ publications​/ Documents​/7300​_cons​.pdf. Louise Butcher, Aviation: European liberalisation, 1986–2002, Standard Note: SN/BT/182 at the House of Commons Library, Available at: https:// researchbriefings ​ . files ​ . parliament ​ . uk ​ / documents​/SN00182​/SN00182​.pdf. Prof. Dr. José Martinez, Art. 100 para. 24, in: Calliess/Ruffert, EUV/AEUV, 6th edition. Regulation (EC) 1008/2008 of the References European Parliament and of the council Brian F. Havel & Gabriel S. Sanchez, The of 24 September 2008 on common rules principles and practice of international for the operation of air services in the aviation law, p. 97/98, 2014. Community. Commission Delegated Regulation (EU) Regulation (EU) 2020/696 of the European 2020/2114 of 16 December 2020. Parliament and of the Council of 25 May Commission Delegated Regulation (EU) 2020. 2020/2115 of 16 December 2020. Report of the Council to the Assembly on Commission Staff Working Documentthe Activities of the Organization in 1952, Evaluation of the Regulation (EC) International Civil Aviation Organization, 1008/2008 on common rules for the Available at: https://www​.icao​.int​/assembly​ operation of air services in the Community, -archive​/Session7​/A​.7​.REP​.3​.P​.EN​.pdf. Available at: https://transport​.ec​.europa​.eu​ Website of the European Commission, /system​/files​/2019​-07​/swd020190295​.pdf. Available at: https://ec​.europa​.eu​/info​/law​ Commission Staff Working Document /better​-regulation ​/ have​-your​-say​/initiatives​ Executive Summary of the Evaluation of /13255​ - Revision​ - of​ - the​ - Air​ - Services​ the Regulation (EC) 1008/2008 on common -Regulation​_en. rules for the operation of air services in the Website of the European Commission, Community, Available at: https://ec​.europa​ Available at: https://ec​.europa​.eu​/info​/law​ .eu ​/info​/sites​/default ​/files​/swd ​_ 2019​_0296​ /better​-regulation ​/ have​-your​-say​/initiatives​ _en​.pdf. /13255​ - Revision​ - of​ - the​ - Air​ - Services​ Consolidated Version of the Regulation (EC) -Regulation ​ / public​ - consultation​ _ en. 1008/2008 of the European Parliament Available at: https://transport​.ec​.europa​.eu​ and of the council of 24 September /transport​-modes​/air​/internal​-market​_de.

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117. Overflight I. Definition and Evolution of Legal Rules concerning Overflight in National Airspace The term “overflight” designates the situation pursuant to which an aircraft flies over areas outside the territory of the State in which it is registered, that is, when it flies through the airspace above the territory of another State or through the airspace above the high seas. Since the earliest days of aviation, two different regulatory approaches have been taken concerning overflight, one based on the principle of the State’s complete and exclusive sovereignty over its airspace and the other grounded on the principle of freedom of navigation. The international legal regime concerning aviation has evolved amidst these two principles (Michaelides-Mateou [2017]). Both Article 1 of the Convention on the Regulation of Air Navigation of 1919, commonly referred to as the Paris Convention, and Article 1 of the Convention on International Civil Aviation of 1944, commonly referred to as the Chicago Convention, recognize that each State exercises complete and exclusive sovereignty over the airspace above its territory, including its territorial waters. These provisions stress the central role that sovereignty plays in aviation, mostly as a result of the security risks stemming from the increase in military capabilities that characterized the first half of the last century. At the same time, they mark the success of the sovereignty approach over the one based on freedom of navigation. Yet, whereas the Paris Convention included, in its Article 2, an inter partes agreement to accord, in time of peace, freedom of innocent passage above each State’s territory to the aircraft of other contracting States, provided that the conditions laid down in the same treaty were complied with, no similar rule was enshrined in the Chicago Convention (Jae Won Lee [2013]). Accordingly, no right to innocence passage, analogous to that provided for by the law of the sea with respect to territorial waters, was envisaged in this legal instrument. It follows that, pursuant to the Chicago Convention, no aircraft can claim a right to fly across – albeit

“innocently” – the airspace above another State’s territory, including its territorial sea, unless it has been authorized by the overflown State to do so. As a corollary to the customary principle of airspace sovereignty recognized in Article 1 of the Chicago Convention, Article 6 of this Convention reserves to States parties the right to subject scheduled international air services operations by foreign air carriers over or into their territory to a special permission or authorization requirement. In time of peace, therefore, every sovereign State has the right to determine which, if any, foreign aircraft can enter or pass through its airspace. A special authorization is also expressly required for pilotless aircraft. Article 8 of the Chicago Convention states, in fact, that “no aircraft capable of being flown without a pilot shall be flown over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization.” The only exception concerns aircraft not engaged in scheduled international air services, for which Article 5 of the Chicago Convention foresees a mutual exchange, among contracting States, of the right to make flights into or in transit non-stop across the airspace above their territories, provided that the terms of the Convention are observed. Article 9 of the Chicago Convention proclaims, for instance, that each contracting State reserves the right, for reasons of military necessity or public safety, to restrict or uniformly prohibit the aircraft of other States from flying over certain areas of its territory and the right, in exceptional circumstances or during a period of emergency or in the interest of public safety, to temporarily restrict or prohibit flying over the whole or any part of its territory. As far as scheduled international air services are concerned, for which, as stated above, a special permission or authorization is required, consent to overfly has instead been generally granted by States, on a reciprocal basis, through bilateral or multilateral agreements. Most remarkable in this last respect is the 1944 International Air Services Transit Agreement (IASTA), which entered into force on 30 January 1945. Its Article 1 provides for the exchange of the privileges for designated airlines of contracting States to fly across other contracting States’ territories without landing and to land for non-traffic purposes (the so-called first and second freedoms of the

404

overflight  405 air). Pursuant to IASTA, the exercise of these privileges shall be in accordance with the provisions of the Chicago Convention (Article 2). In October 2022, 134 States had adhered to IASTA. Where not covered by IASTA, any right of overflight is often exchanged through bilateral Air Services Agreements (ASAs), which, similarly, may provide for restrictions or exceptions to its exercise. The Chicago Convention only applies to civil aircraft (Article 3). That notwithstanding, the need to acquire consent to overfly other States’ national airspace also relates to other type of aircraft as a matter of customary international law (Fedele [1967]; Wouters and Demeyere [2008]). As a result, the right of overflight by military aircraft is generally granted by States through defense or arms control bilateral or multilateral treaties. An example in this respect is the 1992 Open Skies Treaty, by which States parties accept to mutually exchange the right to carry out observation flights over other States parties’ territories in accordance with the terms set by the same treaty (Article III). This agreement has recently come under the spotlight after the United States and the Russian Federation announced their intention to withdraw from it. At times, the granting of overflight to other States’ military aircraft is envisaged by treaties establishing international organizations. Article 43 of the United Nations (UN) Charter of 1945 requires, for instance, all Member States to make available to the Security Council, on its call and in accordance with special agreements, inter alia, the rights of passage necessary for the purpose of maintaining international peace and security. The UN Security Council has indeed invited Member States to grant overflight on several occasions. For instance, in 2001 it exhorted Afghanistan’s neighboring States and other UN Member States to ensure overflight clearances and transit to the International Security Assistance Force, a multilateral military mission established in order to assist the Afghan Interim Authority in the maintenance of security (UN Security Council 2001). Absent the consent by the overflown State, overflight of its territory by a foreign aircraft amounts to a violation of the principle of sovereignty. Yet, wrongfulness is precluded where, for instance, the aircraft is forced into the airspace of another State without its authorization as a result of force majeure or

distress, such as damage or loss of control due to adverse weather conditions (International Law Commission 2001, p. 77). Unauthorized overflight may result in the interception of the trespassing aircraft by the territorial State. Nonetheless, in peacetime, such interception should abide by ius ad bellum rules (Bourbonniere and Haeck [2001]).

II. Legal Rules concerning Overflight in International Airspace Different legal rules apply to the airspace above the high seas(Merinda Stewart [2021]). Article 87(1)(b) of the United Nations Convention on the Law of the Sea of 1982 (UNCLOS) provides indeed that each State party – either coastal or land-locked – enjoys freedom of flying over international waters. This freedom of overflight should be exercised by States with due regard for the interest of other States in exercising the same and other freedoms of the high seas (Article 87(2)). In this way, it has been argued that the very establishment of an offshore Air Defense Identification Zone would be justified by the obligation to pay due regard to freedom of overflight (Su [2021]). Freedom of overflight applies to all parts of the sea, with the sole exception of internal and territorial waters (Article 86), and to all categories of aircraft (both civil and state). With reference to the exclusive economic zone, Article 58 of UNCLOS, while expressly upholding freedom of overflight, subjects its exercise to the respect of the laws and regulations adopted by the coastal State in accordance with the provisions of the same Convention. The practical meaning of this rule, especially as far as its possible diverging content vis-à-vis freedom of overflight on the high seas is concerned, is, however, contentious. UNCLOS also expressly envisages and regulates a right of overflight across the airspace above international straits and archipelagic waters (see, inter alia, Suzanne Lalonde [2014]). As to the former, Article 38 lays down that all aircraft enjoy the right to transit passage – that is the exercise of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit – over straits that are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an elena carpanelli

406  elgar concise encyclopedia of aviation law exclusive economic zone. With respect to archipelagic waters, Article 53 of UNCLOS analogously provides that aircraft enjoy the right of archipelagic sea lanes passage, that is, the exercise of the rights of navigation and overflight solely for the purpose of continuous, expeditious, and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

III. Overflight during Armed Conflicts Active hostilities or occupation and war do represent exceptional circumstances that may trigger a partly different legal regime with respect to overflight. Thus, for instance, Article 1 of IASTA provides that, in such cases, the exercise of first freedom rights, which are, in principle, mutually exchanged through the treaty itself, may be subjected to the approval of competent military authorities. During an international armed conflict, belligerent States often establish no-fly zones by imposing restrictions to overflight in their own or in the enemies’ national airspace. The UN Security Council may also authorize, acting pursuant to Chapter VII of the UN Charter, the establishment of no-fly zones (Michael Schmitt [2011]), as it did, for instance, in Bosnia and Herzegovina in 1992 (UN Council 1992). At the same time, neutral States have the right to deny the passage across their airspace to belligerent States’ aircraft, as a result of the principle of international law that the territory of a neutral State is inviolable. Yet, the use of neutral airspace by the parties to an international armed conflict to transport the wounded, sick, and shipwrecked does not constitute a breach of international law. Article 40 of the Convention on the Amelioration of Conditions of Wounded, Sick and Shipwrecked Members of Air Forces at Sea of 1949 provides, in fact, that “medical aircraft of Parties to the conflict may fly over the territory of neutral Powers, land thereon in case of necessity, or use it as a port of call. They shall give neutral Powers previous notice of their passage over the said territory, and obey every summons to alight, on land or water. […] The neutral Powers may, however, place conditions or restrictions on the passage or landing of medical aircraft on their territory.” elena carpanelli

Specific rules apply to international straits and archipelagic sea lanes: the right of transit passage over international straits and archipelagic sea lanes continue, in fact, to apply also in time of conflict with respect to both belligerent and neutral States’ aircraft (San Remo Manual on International Law Applicable to Armed Conflicts at Sea of 1994, Article 27). Armed conflicts pose a great risk for international civil aviation. This was made evident by the downing of flight MH17 over Ukraine on 17 July 2014. ICAO Member States should therefore keep under review and mitigate threats stemming from conflicts to international civil aviation in their airspace (ICAO 2018, referring, inter alia, to Annexes 11 and 17 to the Chicago Convention).

IV. Denial of Overflight and Overflight Charges The exercise of the right of overflight brings with it great economic benefits. The impossibility to overfly the airspace above a certain territory may indeed end up “air-locking” a certain State or result in expensive diversions. It is thus no surprise that certain States have either denied the exercise of the right to overflight in the attempt to cut other States off from the rest of the world or subjected it to the payment of royalties. The first type of scenario is well represented by the decision of Bahrain, Egypt, Saudi Arabia, and the United Arab Emirates to close, starting in June 2017, their airspace to Qatariregistered aircraft, banning them from landing or departing from their airports and from overflying their airspace. Such a denial of overflight may, however, result in an internationally wrongful act if an authorization was previously granted to that purpose and wrongfulness is not precluded, for instance, by lawfully invoking the right to adopt countermeasures. As an example of the second issue, reference is made to the royalties that the European Union (EU) and Asian carriers have been paid for years in order to overfly the Union of Soviet Socialist Republics (USSR) / Russian Federation while in transit through trans-Siberian routes (the so-called “Siberian overflights”). This practice also raises several doubts as far as its compatibility with international rules –including those enshrined in the Chicago Convention – is concerned, a main contentious point being the “tradability” of first freedom rights (Johannes Baur [2010], Elena Carpanelli [2011]). Elena Carpanelli

overflight  407

References Johannes Baur, ‘EU-Russia Aviation Relations and the Issue of Siberian Overflights’, 35 Air & Space Law 225–247 (2010). Michel Bourbonniere and Louis Haeck, ‘Military Aircraft and International Law: Chicago Opus 3’, 66 Journal of Air Law and Commerce 885–978 (2001). Elena Carpanelli, ‘The Siberian Overflights Issue’, 11 Issues in Aviation Law and Policy 23–66 (2011). Frank Fedele, ‘Overflight by Military Aircraft in Time of Peace’, 9 United States Air Force JAG Law Review 8 (1967). ICAO, ‘Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zone’, Doc. 10084, 2nd edition (2018). International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001). Suzanne Lalonde, ‘The Right of Overflight above International Straits’, 52 The Canadian Yearbook of International Law 35–76 (2014). Pablo Mendes de Leon, Introduction to Air Law, 10th edition (Kluwer, 2017). Sofia Michaelides-Mateou, ‘Customary International Law in Aviation. A Hundred Years of Travel Through the Competing

Norms of Sovereignty and Freedom of Overflight’, in Brian Lepard (ed.), Reexamining Customary International Law 309–345 (CUP, 2017). Michael Schmitt, ‘Wings over Libya: The No-Fly Zone in Legal Perspective’, 36 Yale Journal of International Law Online 45– 58 (2011). Merinda Stewart, Freedom of Overflight: A Study of Coastal State Jurisdiction in International Airspace (Kluwer, 2021). Jinyuan Su, ‘Is the Establishment of Air Defence Identification Zones Outside National Airspace in Accordance with International Law’, 32 European Journal of International Law 1309–1334 (2021). UN Security Council, Resolution 781, Doc. S/ RES/781 (1992). UN Security Council, Resolution 1386, Doc. S/RES/1386 (2001). Jae Woon Lee, ‘Revisiting Freedom of Overflight in International Air Law: Minimum Multilateralism in International Air Transport’, 38 Air & Space Law 351– 369 (2013). Jan Wouters and Bruno Demeyere, ‘Overflight’, in Max Planck Encyclopedia of Public International Law Online (2008), https:// opil​ .ouplaw​ .com​ / view​ /10​ .1093​ / law​ :epil​ /9780199231690​/law​-9780199231690​-e1204.

elena carpanelli

118. Ownership and Control of Airlines I. Background The magna carta of the regulatory framework concerning international civil aviation is the Convention on International Civil Aviation, commonly known as the Chicago Convention, adopted by the International Civil Aviation Conference in Chicago on 7 December 1944. The origins of restrictions on ownership and control of airlines (i.e., restrictions on the nationality of airlines), however, are not to be found in the Chicago Convention. Indeed, with a few exceptions, such as Articles 7, 77 et seq. and 81, which refer to “airline of a State,” the Chicago Convention does not deal with the nationality of airlines and lays down rules pertaining only to the nationality of aircraft. The first appearance of rules relating to ownership and control of airlines was rather in two other instruments adopted in parallel at the Chicago Conference, namely, the International Air Services Transit Agreement (IASTA) and the International Air Transport Agreement (IATA), which contain the following identical language: “[e]ach contracting State reserves the right to withhold or revoke a certificate or permit to an air transport enterprise of another State in any case where it is not satisfied that substantial ownership and effective control are vested in nationals of a contracting State.” The rationale of this provision must be read in historical context and the fact that only the Allied and neutral powers during World War II were invited to participate in the Chicago Conference. The ownership and control mechanism would have allowed those powers to prevent enemy States, originally excluded from those agreements, from indirectly benefiting from the grant of traffic rights between contracting States by participating in the ownership and control of airlines of contracting States. The subsequent developments of ownership and control restrictions are a corollary of the rise of the bilateral exchange of traffic rights between States in the postChicago era. Backed up by the customary international law principle of complete and

exclusive sovereignty over airspace, recognized by Article 1, and relying on Article 6 of the Chicago Convention, providing that “[n]o scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization,” States looked (and predominantly still look) at air transport as a sort of concessionary activity requiring the access to specific markets to be negotiated between States through bilateral Air Services Agreements (ASAs).

II. Ownership and Control Restrictions in Bilateral Air Services Agreements The incorporation of ownership and control restrictions (also known as nationality clauses) in ASAs has been justified, inter alia, as a mean to prevent the so-called free riding: if Country A grants traffic rights to airlines in Country B in an ASA with Country B, Country A will not want Country C to enjoy those benefits merely by investing in an airline of Country B. The traditional wording of nationality clauses in ASAs reads as follows: Each Contracting Party reserves the right to withhold or revoke the privileges specified in…the present Agreement enjoyed or to be enjoyed by an airline designated by the other Contracting Party…in any case where it is not satisfied that substantial ownership and effective control of such airline are vested in the Contracting Party designating the airline or in nationals of such Contracting Party.

ASAs do not generally define the meaning of “substantial ownership” and “effective control.” Substantial ownership is traditionally seen as a preliminary and de jure condition and interpreted as ownership of more than 50% of voting shares. Conversely, effective control is seen as a predominant and de facto condition, which requires a specific assessment according to the facts of every individual case. Legislation of individual States usually sets out a series of parameters that are to be taken into account in any such assessment. For example, in the European Union, Regulation (EC) No. 1008/2008 defines “effective control” as:

408

ownership and control of airlines  409 a relationship constituted by rights, contracts or any other means which, either separately or jointly and having regard to the considerations of fact or law involved, confer the possibility of directly or indirectly exercising a decisive influence on an undertaking, in particular by: (a) the right to use all or part of the assets of an undertaking; (b) rights or contracts which confer a decisive influence on the composition, voting or decisions of the bodies of an undertaking or otherwise confer a decisive influence on the running of the business of the undertaking.

III. Deviations from the Traditional Nationality Rule Within the ASA system, over the years there have been a number of deviations, in various forms, from the traditional nationality rule. One of the examples that is more often quoted in the literature is the case of Scandinavian Airlines System (SAS), a “joint operating organization” of three Danish, Swedish, and Norwegian airlines formed in 1950. The multinational ownership of SAS clearly departs from the traditional nationality requirement. Yet, SAS has been designated by each of Denmark, Sweden, and Norway under their respective ASAs with third States, which have abstained from challenging this designation on the basis of the nationality rule. The success of this development is usually ascribed to the fact that, while the ASAs are separately entered into by each of the three States, negotiations with third countries are conducted together by the three States, thus allowing a stronger bargaining position. Hong Kong is probably the pioneer example of the replacement of the traditional nationality rule with the “principal place of business” rule. Without digressing too long into the history of Hong Kong, suffice it here to say that as a result of the Joint Declaration between the People’s Republic of China and the United Kingdom, and the Basic Law enacted thereof, Hong Kong was granted authority to renew/ amend ASAs previously in force (concluded by the British government), or to conclude new ASAs, with an express mandate to allow for the designation of airlines incorporated and having their principal place of business in Hong Kong. The rationale of this is often seen in the fact that since Cathay Pacific was owned and controlled by the British Swire Group, if the traditional nationality rule would have featured in the ASAs concluded/

renewed by Hong Kong, Cathay Pacific could have not been designated unless the Swire Group would have divested its majority stake in favor of Hong Kong nationals. At the same time, the “principal place of business” requirement also allowed greater room for Mainland Chinese investors to acquire controlling stakes in Hong Kong–based airlines. Regional integration also represents a deviation from the traditional nationality rule. The most prominent example in this respect is the unification of the European air transport market, which featured the removal of restrictions on national ownership and control of airlines within the European Union, thus creating the concept of “Community Air Carrier,” but also had important consequences on the external aviation policy with non-EU countries. In November 2002, the Court of Justice of the European Union found that ASAs between a EU Member State and third countries, allowing only for the designation of airlines owned and controlled by nationals of that signatory EU Member State, violated EU law. As a result, all EU Member States, either directly or through the so-called horizontal agreements negotiated by the European Commission on a mandate from the EU Members States, have been required to amend the nationality provisions in each of their ASAs with third Countries to allow the designation of air carriers owned and controlled by any EU Member State and/or nationals of any EU Member State.

IV. Ownership and Control Restrictions in National Laws Ownership and control restrictions in the airline industry work through a “double-bolted locking mechanism,” where the external lock is represented by the above-referred restrictions under ASAs and the internal lock is represented by restrictions set out in national laws and regulations. These internal rules are typically justified as a means to ensure compliance with the requirements under the ASAs, but they have historically also been justified as a measure to protect, inter alia, national security, national economy, and employment privileges (the latter advocated in particular by labor unions). Limits set by national statutes generally provide that foreign ownership of airlines must not exceed 49%, although there are francesco fiorilli

410  elgar concise encyclopedia of aviation law exceptions at both ends of the spectrum. For instance, in the United States, federal laws still limit foreign ownership of US airlines to 25% (despite various proposals being made over the years to increase the threshold to 49%) and require US citizens to have actual control of US airlines. In Australia, foreign ownership in domestic airlines, other than Qantas, is allowed up to 100%.

V. Liberalization of Airline Ownership and Control Rules The origins of airline ownership and control rules go back to an era where the majority of air carriers were State owned. Widespread and growing liberalization, privatization, and globalization have inevitably called for a regulatory change to enable air carriers to adapt to the current challenging and dynamic environment. The liberalization of traditional airline ownership and control restrictions has become, and continues to be, an important part of ICAO’s agenda in the field of economic regulation. This is evident in the ICAO LongTerm Vision for International Air Transport Liberalization, adopted at the ICAO Council’s fifth meeting of its 205th Session, pursuant to the recommendation of the Sixth Worldwide Air Transport Conference: We, the Member States of the International Civil Aviation Organization, resolve to actively pursue the continuous liberalization of international air transport to the benefit of all stakeholders and the economy at large. We will be guided by the need to ensure respect for the highest levels of safety and security and the principle of fair and equal opportunity for all States and their stakeholders.

Recommendations have been made over the years to invite States to liberalize the application of the traditional nationality rule, including by its replacement with the alternative criteria for designation of airlines on “principal place of business and effective regulatory control.” The ICAO has, however, acknowledged a certain level of hesitancy on the part of individual States to depart from a system so much rooted in the industry’s tradition, particularly when such departure would require States to amend a substantial number of ASAs and national legislation. francesco fiorilli

Taking this into account, the Sixth Air Transport Conference in 2013 made recommendations for the ICAO to initiate the work on the development of an international agreement to liberalize air carrier ownership and control rules. This recommendation was accepted by the ICAO Assembly, which, at the 39th Session, requested the Council to take forward the work on this subject. The work was assigned to the Air Transport Regulation Panel (ATRP) under the Air Transport Committee, with the aim to develop a draft Convention on Foreign Investment in Airlines, providing for a “waiver” as an instrument to allow airlines of the parties to the Convention to be “majority owned and effectively” controlled by nationals of any other party to the Convention. In other words, by signing the Convention, a State would waive the right to challenge the designation of an airline on the grounds of nationality, otherwise allowed under its ASAs, insofar as the designated airline is owned and controlled by nationals of a party to the Convention. The work of the ATRP has been structured by creating five small, regionally based discussion groups to consider: (1) the pros and cons (feasibility/appetite) of having a Convention on Foreign Investment in Airlines; (2) the issue of possible “free riders”; (3) labor and social issues; and (4) fair competition and associated issues. According to the latest available report, presented at the ICAO 41st Assembly at the ATRP meeting held in April 2022 it was concluded that further in-depth discussions would be required on these issues of concern.

VI. Concluding Remarks In the current global economy, restrictions on ownership and control of airlines, which were engineered in an era where most airlines were State owned, can hardly be justified. Airlines operate in a very challenging and competitive environment and require access to substantial financial capital, which may not be available from local investors and could therefore represent an obstacle for certain countries to enjoy the “equality of opportunity” predicated by the preamble of the Chicago Convention. The deviations from the traditional nationality rule that occurred over the years and the increasing attention of the international aviation community to the subject are a clear sign that a change in the regulatory framework is

ownership and control of airlines  411 much required. The proposal to develop an international convention built on a system of “waivers” from the traditional nationality rule undoubtedly represents an interesting proposal as it would not necessarily require States to amend their existing ASAs and national legislation. However, issues of concern remain in respect of which it is hoped that States, under the ICAO’s leadership, will continue to work together to find speedy resolution. Francesco Fiorilli

References Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295. Fiorilli F, ‘Ensuring Global Competitiveness in the Airline Industry’ (2011) 11 Issues Aviation Law and Policy 101. Haanappel PPC, ‘Airline Ownership and Control, and Some Related Matters’ (2001) 26/2 Air and Space Law 90. Havel BF, Beyond Open Skies: A New Regime for International Aviation (Kluwer Law International, 2009). ICAO, ‘Liberalization of Air Carrier Ownership and Control’ (working paper ATConf/6-WP-12, presented at the 6th Worldwide Air Transport Conference, 2013). ICAO, ‘Progress Report on the Development of International Agreements on the Liberalization of Market Access, Air Cargo and Air Carrier Ownership and Control’ (working paper A40-WP/16, presented at the 40th Session of the ICAO Assembly, 2019).

ICAO, ‘Progress Report on Economic Regulation of International Air Transport’ (working paper A41-WP/13, presented at the 41st Session of the ICAO Assembly, 2022). ICAO, ‘Policy and Guidance Material on the Economic Regulation of International Air Transport’, Doc. 9587 (2017). ICAO, ‘Report on Agenda Item 2.2’ (document ATConf/6-WP/104, report on the Worldwide Air Transport Conference – Sixth Meeting, 2013). International Air Services Transit Agreement (adopted 7 December 1944, entered into force 30 January 1945) 84 UNTS 389. International Air Transport Agreement (adopted 7 December 1944, entered into force 30 January 1945) 171 UNTS 387. Lelieur I, Law and Policy of Substantial Ownership and Effective Control of Airlines: Prospects for Change (Ashgate Publishing Ltd, 2003). Mendes de Leon P, ‘Establishment of Air Transport Undertakings – Towards a More Holistic Approach’ (2009) 15 Journal of Air Transport Management 96. Moulds EJ, ‘The Patchwork in the Sky: An Examination on How the Eight Largest Global Aviation Markets Regulate Trade, Investment and Alliances between Airlines’ (DPhil thesis, Maastricht University, 2022). Regulation (EC) 1008/2008 of the European Parliament and the Council (2008) OJ L 293. Woon Lee J et  al., ‘Hong Kong’s Law for Foreign Investment in the Airline Industry: A Pioneer of “Principal Place of Business”?’ (2020) XLV Annals of Air and Space Law 47.

francesco fiorilli

119. The Paris Convention (1919)

victorious countries and their allies. It continued the work conducted by the Comité interallié d’Aviation set up in September 1917. Two draft Conventions were proposed by, on the one hand, France and, on the other hand, Great Britain, both containing technical Covering aviation in times of peace but annexes, prefigurating the current architecadopted after the end of World War I, the ture of the “Chicago System.” The final draft, 1919 Paris Convention constituted the first after intense efforts to merge the different prointernational instrument on public air law and posals, was presented to the Supreme Council it paved the way for the posterior Chicago of the Peace Conference on 10 July 1919. At system. It was the result of years of legal the invitation of the Supreme Council, fearing debates about the future regime governing that too many reservations would undermine international aviation, even if the economic the project, a new proposal was submitted in perspectives of transport were still uncertain. September 1919. After its formal approval, The academic debates are well known. They the Paris Convention was opened to signature represented opposing views regarding the sta- on 13 October 1919 for allied countries havtus of the air. P. Fauchille and E. Nys, most ing participated to the Peace Conference. notably, defended the thesis of the “freedom Regarding the topical question of soverof the air,” while authors such as J. Westlake eignty, the main provision of the 1919 Paris defended the idea of “air sovereignty” yet lim- Convention is without a doubt its Article 1, ited by the right of innocent passage: For the which provided that: “The High contracting tenants of the freedom of the air, airspace was Parties recognize that every Power has coma res communis omnium. For the proponents plete and exclusive sovereignty over the air of sovereignty, the arguments were generally space above its territory.” This provision supderived from the latin maxim: Qui dominus posed a clear and definitive rejection of the est soli, dominus est coeli et inferorum. theories on the freedom of the air, including Notwithstanding the significant contribu- the ones promoting a division of airspace. tion of these academic debates, they dem- Establishing the principle of air sovereignty, onstrated the lack of agreement on the core the 1919 Paris Convention hence defined the principles to be applied to aviation. This cornerstone of contemporary aviation law, as led to the failure of the first international reflected today in Article 1 of the Chicago Conference on air law, convened in Paris in Convention. The words chosen by the draft1910 at the invitation of the French govern- ers of the 1919 Paris Convention denoted the ment. Following several aerial intrusions of desire to consecrate a preexisting principle, German balloons into French territory, the understood as a principle of customary inter1910 Paris Conference was attended by rep- national law. resentatives of 18 countries, who sought to Article 2 of the 1919 Paris Convention unify the law governing international avia- stated that “Each contracting State undertion. The diplomatic Conference took place takes in time of peace to accord freedom of from 18 May to 29 June 1910, when it was innocent passage above its territory to the officially suspended until November 1910, but aircraft of the other contracting States, pronever reinitiated due to the advent of World vided that the conditions laid down in the War I. Despite not delivering its desired out- present Convention are observed.” Hence, J. come, this diplomatic Conference led to the Westlake’s theory had triumphed over that identification of fundamental principles that of P. Fauchille: the recognition of air soverare still relevant nowadays, such as the dis- eignty over the territory and territorial waters tinction between civil and State aircraft, the of each and any nation was accompanied by registration and nationality of aircraft, and the right of innocent passage. However, conbasic rules of the air. trary to the principle of sovereignty, the wordAfter the conflict ended, G. Clémenceau ing chosen in Article 2 of the Convention – then head of the French government – denoted that the right of innocent passage offered to convene an international confer- constituted a concession among contracting ence on air law. Accordingly, the Supreme States in times of peace, and in no way was Council of the Peace Conference estab- it recognized as a right available to all States lished a Special Aeronautical Commission under general international law. This right of that was comprised of representatives of the innocent passage was furthermore heavily 412

the paris convention (1919)  413 restricted in the Convention itself: not only did Article 3 allow States to establish prohibited areas, but also Article 15 submitted the exercise of this freedom to strict conditions. Article 15, para 1, prescribed that: “Every aircraft of a contracting State has the right to cross the air space of another State without landing. In this case it shall follow the route fixed by the State over which the flight takes place. However, for reasons of general security it will be obliged to land if ordered to do so by means of the signals provided in Annex D.” Article 15, para 3 additionally provided that: “The establishment of international airways shall be subject to the consent of the States flown over.” In other words, the overflown States could still prohibit the access to certain areas, establish the routes to be followed by the aircraft of the other contracting parties, order them to land and submit the overflight of scheduled commercial flights to prior authorization. Due to these heavy limitations, the right of innocent passage was largely deprived of practical relevance for commercial air transportation. In spite of being mainly remembered for the right of innocent passage, the 1919 Paris Convention’s major innovation is perhaps to be found in its Article 34, which established the International Commission for Air Navigation (ICAN). Not only did it create a permanent institution, but it also entrusted it with essential missions to ensure the correct application of the Convention and its continuous adaptation. ICAN could propose amendments to both the Convention itself and its Annexes, even if the modifications to the Convention could become effective only after their adoption by the contracting States. Regarding the Annexes, the ICAN’s composition and the voting rules indeed differed from what is in force today, but they strikingly recall the powers of the Council of ICAO. This includes the entry into effect of the modifications: once they were notified to the contracting parties, they were binding upon them and did not request any further ratification or approbation by the States. Furthermore, no provision in the 1919 Paris Convention allowed for a State to “notify a difference” as it is permitted today under Article 38 of the 1944 Chicago Convention. Hence, the main legacy of the Paris Convention is without a doubt the institutionalization of international cooperation, and the original solutions adopted to ensure the

continuous adoption of aviation law. More generally speaking, the 1919 Paris Convention prefigured the legal architecture that governs the Chicago System today, namely, a general Convention laying down the essential legal and technical requirements to perform international air services monitored by a dedicated organization and a network of bilateral agreements to ensure market access by exchange of traffic rights. Vincent Correia

References Antonio Ambrosini, ‘Souveraineté et trafic aérien international – De la Convention de Paris de 1919 à celle de Montreux de 1936’, [1938] 28 Revue Aéronautique Internationale 133 Clément L. Bouvé, ‘The Development of International Rules of Conduct in Air Navigation’, [1930] 1 Air L.Rev. 1 John Cobb Cooper, The Right to Fly (Henry Holt 1947) John Cobb Cooper, ‘The International Air Navigation Conference, Paris 1910’, [1952] 19 JALC 127 John Cobb Cooper, ‘Roman Law and the Maxim Cujus Est Solum in International Air Law’, [1952] 1 McGill Law Journal 23 Joseph F. English, ‘Air Freedom: The Second Battle of the Books’, [1931] 2 JALC 356 Paul Fauchille, ‘Le domaine aérien et le régime juridique des aérostats’, [1901] 8 RGDIP 414 Daniel Goedhuis, ‘Civil Aviation After the War’, [1942] 36 AJIL 596 Henri Guibé, Essai sur la navigation aérienne (Marchal & Godde 1912) Harold D. Hazeltine, The Law of the Air (University of London Press 1911) André Henry-Coüannier, Examen de principe de la convention internationale portant réglementation de la navigation aérienne du 13 octobre 1919 (Édition aérienne 1922) Arthur K. Kuhn, ‘International Aerial Navigation and the Peace Conference’, [1920] 14 AJIL 369 Marcel Le Goff, Manuel de droit aérien – Droit Public (Dalloz 1954) Maurice  Lemoine, Traité de droit aérien (Sirey 1947) Johanna Francina Lycklama à Nijeholt, Air Sovereignty (Nijhoff 1910) Johanna Francina Lycklama à Nijeholt, ‘La souveraineté aérienne’, [1910] 1 Revue vincent correia

414  elgar concise encyclopedia of aviation law juridique internationale de la locomotion aérienne 229 Johanna Francina Lycklama à Nijeholt, ‘La souveraineté aérienne’, [1910] 1 Revue juridique internationale de la locomotion aérienne 297 Nicolas Mateesco-Matte, Traité de droit aérien-aéronautique, 133–154 (2nd ed., Pedone 1964) Alexandre Mérignhac, Traité de droit public international (LGDJ 1907) Michael Milde, International Air Law and ICAO (Eleven International 2016) Eugène Pépin, ‘Le droit aérien’, [1947] 71 Collected Courses of the Hague Academy of International Law 479 Eugène Pépin, ‘La Conférence de Paris de 1910 ou le Premier Essai de Règlementer l’Aviation Internationale’, [1978] 3 Annals of Air & Space Law 185

vincent correia

Suzanne Pessereau, Des modifications à la convention du 13 octobre 1919 portant réglementation de la navigation aérienne (Éditions internationales 1935) Anne Pignochet, L’organisme le plus évolué du droit international: la Commission internationale de navigation aérienne (Éditions Internationales 1935) Małgorzata Polkowska, ‘The Development of Air Law: From the Paris Conference 1910 to the Chicago Convention of 1944’, [2008] 23 Annals of Air & Space Law 59 Albert Ropert, La convention internationale du 13 octobre 1919 portant réglementation de la navigation aérienne: Son origine – Son application – Son avenir (Sirey 1930) Lambertus Hendrik Slotemaker, Freedom of Passage for International Air Services (Sijthoff 1932)

120. Passenger Name Record I. Definition Article 3(4) of Directive (EU) 2016/681 defines Passenger Name Record (PNR) as a record of each passenger’s travel requirements which contains information necessary to enable reservations to be processed and controlled by the booking and participating air carriers for each journey booked by or on behalf of any person, whether it is contained in reservation systems, departure control systems used to check passengers onto flights, or equivalent systems providing the same functionalities.

In the aviation sector, the use of PNR data is necessary to prevent, detect, investigate and prosecute terrorist offences and serious crime and thus enhance internal security, to gather evidence and, where relevant, to find associates of criminals and unravel criminal networks. (Whereas n. 6 of Directive 2016/681)

According to Article 13 of the Chicago Convention (1944) the laws and regulations of a contracting State as to the admission to or departure from its territory of passengers, crew or cargo of aircraft […] shall be complied with by or on behalf of such passengers, crew or cargo upon entrance into or departure from, or while within the territory of that State.

Hence, a State may require different information to a subject wishing to enter its territory.

began to recognize the true potential of using personal data provided by air passengers as prevention tools against terrorist attacks and other serious crimes. The International Civil Aviation Organization (ICAO) addressed this issue for the first time in 2004, during the Twelfth Session of the Facilitation Division, which was held in Cairo from 22 March to 1 April 2004. The ICAO’s Facilitation Division endorsed Recommendation B/5, which suggested that ICAO create rules for contracting States regarding access to PNR data. These rules should govern how PNR data are distributed, used, retained, and transferred between airlines and the receiving State.

III. Regulatory Framework 1. International Regulatory Framework Besides Article 13 of the Chicago Convention mentioned above, Recommendation B/5 shall be analyzed from an international perspective. In particular, the act shall be considered in connection with Chapter 1(B) of Annex 9 to the Chicago Convention (see Chapter 1(B), point 1.2), since it requires contracting States to ensure the c) exchange of relevant information between Contracting States, operators and airports is fostered and promoted to the greatest extent possible; and d) optimal levels of security, and compliance with the law, are attained

without prejudice to the application of national aviation security measures. Following the adoption of Recommen­ dation B/5, in March 2005, the ICAO Council stated a relevant Recommended Practice, which provided that

II. Development of the Concept PNR data have  been used as an information tool in the fight of States against terrorism, as well as for aviation security, since the 1950s.

Contracting States requiring Passenger Name Record (PNR) access should conform their data requirements and their handling of such data to guidelines developed by ICAO

Following the terrorist attack  of 11  September  2001, the international community decided to adopt and implement a uniform regulatory framework on PNR, highlighting the increasing urgency to establish more severe provisions and establish a common approach to security issues during flight operations. Indeed, following those dramatic events, competent authorities in each State

establishing that these guidelines had to be included in Annex 9. Subsequently, in April 2006, the recommended guidelines were published with the issuance of Circular 309 Guidelines to establish uniform measures for PNR data transfer and, in 2010, they were revised by a working group – set up by the fifth meeting of the Facilitation Panel (FALP) – with the

415

416  elgar concise encyclopedia of aviation law Guidelines on Passenger Name Record (PNR) Data (Document 9944). After providing the relevant definitions, Document 9944 Guidelines establishes that contracting States may require the transfer of PNR data due to the fact that their analysis has a key value in the assessment of risks related to acts of terrorism and serious crimes. The Guidelines also highlight that, in addition to the improvement of flight and border security, the PNR data analysis may lead to the identification of potentially high-risk passengers, with the consequence of improving, facilitating, and protecting the vital interests of passengers, legitimate passenger traffic, and airports’ control processes (Chapter 2 of Document 9944, part 2.2). After establishing the same methods of data collection shown by the European legislation (the so-called push and pull methods), Document 9944 states that each State shall always ensure that the national authorities, which have access to the PNR data, guarantee an adequate level of management and protection of the PNR data collected. Therefore, if States do not have legislation on the protection of personal data, they shall develop laws or regulations to adequately protect them. In doing so, the aforementioned Guidelines establish the need for each State to ensure a reasonable balance between the protection of passengers’ personal data and the State’s prerogative to require disclosure of passenger information and, therefore, accordingly, States should not unduly restrict PNR data transfer by aircraft operators to relevant authorities of another State, and States should ensure that a passenger’s PNR data are protected. (Chapter 2 of Document 9944, point 2.12)

2. European Regulatory Framework Directive (EC) 82/2004 was the first act to enforce the transmission by air carriers of Advance Passenger Information (“API”) data to the competent national authorities in order to improve the border protection system and to discourage irregular and illegal immigration. The relevance of such a Directive relies on the fact that it was a first example of the use of passengers’ personal data to prevent unlawful acts against aviation security. On 21 September 2010, the European Commission issued a Communication on the global approach to transfers PNR data ottavia carla bonacci

to third countries (Communication from the Commission on the global approach to transfers of Passenger Name Record (PNR) data to third countries (PNR Communication) of 21 September 2010) which highlighted the core elements of the European policy in the PNR’s use. In particular, the aforementioned Communication summarized that its use can be reactive (i.e., the use of PNR data during investigations or prosecutions after a crime has been committed), in real time (i.e., the use of PNR data in order to prevent a crime), or proactive (i.e., the use of PNR data in order to analyze trends and create models of passengers’ movement and general behaviors). However, while recognizing the crucial role of PNR data in the fight against terrorism, the Commission also highlighted the need to ensure the applicability of EU rules on data protection that “do not allow carriers operating flights from the EU to transmit the PNR data of their passengers to third Countries which do not ensure an adequate level of protection of personal data without adducing appropriate safeguards” (PNR Communication, point 2(3)). Therefore, the EU negotiated international agreements, such as the 2006 PNR agreement between the EU and Canada, the 2007 agreement with the United States, and the 2008 agreement between the EU and Australia, with third countries, aiming at ensuring the transfer of PNR data outside European borders while also ensuring an adequate level of protection of passengers’ data.

IV.

Protection of PNR Data

Following the terrorist attacks that occurred in Paris in November 2015, the European Parliament issued its proposal (see the Proposal for a Directive on the use of Passenger Name Record data for the prevention, detection, investigation, and prosecution of terrorist offenses and serious crime – Outcome of the European Parliament’s first reading) for Directive 2016/681 (the PNR Directive), which was adopted shortly after on 27 April 2016. Directive 2016/681 applies both to the PNR data collected for intra-EU operational flights, prior to a written notification to the Commission, as well as to selected extra-EU flights, if Member States evaluate this application to be necessary for the security objectives set out in the Directive.

passenger name record  417 Technically, the data obtained from the PNR information are collected by airlines. However, the aforementioned Directive 2016/681 allows Member States to collect PNR data from economic operators other than airlines, such as travel agencies and tour operators, provided that such a possibility is set out in a national law that shall comply with European provisions (whereas n. 33 of Directive 2016/681). As stated in Annex I to Directive 2016/681, PNR data concern information provided by passengers and collected by airlines during flight booking and check-in procedures and they include: the date of reservation and the date of travel; names, address, and personal information (telephone number, e-mail address) of the passenger; the payment information; the travel status of the passenger; the check-in status; ticket and seat number; baggage information; and any other API data collected, including the type, number, country of issuance and expiry date of any identity document, nationality, family name, given name, gender, date of birth, airline, flight number, departure date, arrival date, departure port, arrival port, departure time and arrival time.

For the complete list of information collected in PNR data, please see Annex I to Directive 2016/681, points 1–19. While airlines collect and process passengers’ PNR data for commercial purposes (whereas n. 8 of Directive 2016/681), Directive 2016/681 provides that the collected PNR data may be transferred and processed (i.e., collected, used, and retained) by Member States and may be exchanged between them only for the purposes of prevention, detection, investigation, and prosecution of terrorist offenses and serious crimes (Article 1(2) of Directive 2016/681), as specified in points (a), (b), and (c) of Article 6(2) of the Directive. Indeed, this Article provides that the national competent authorities shall process PNR data only for the following purposes: (a) carrying out an assessment of passengers prior to their scheduled arrival in or departure from the Member State to identify persons who require further examination by the competent authorities referred to in Article 7, and, where relevant, by Europol in accordance with

Article 10, in view of the fact that such persons may be involved in a terrorist offense or serious crime; (b) responding, on a case-by-case basis, to a duly reasoned request based on sufficient grounds from the competent authorities to provide and process PNR data in specific cases for the purposes of preventing, detecting, investigating, and prosecuting terrorist offenses or serious crime, and to provide the competent authorities or, where appropriate, Europol with the results of such processing; and (c) analyzing PNR data for the purpose of updating or creating new criteria to be used in the assessments carried out under point (b) of paragraph 3 in order to identify any persons who may be involved in a terrorist offense or serious crime. To ensure such activities, each Member State shall designate its own competent authority, referred to as Passenger Information Unit (PIU), entrusted with the collection of PNR data from airlines (Article 4 of Directive 2016/681). The national PIUs shall also store, process, and transfer those data to the competent authorities (as provided for in Article 7 of Directive 2016/681) that are entitled to request or receive them. Lastly, PIUs shall be able to exchange PNR data and to cooperate with PIUs of other Member States and with Europol. The competent authorities requesting PNR data can receive them in two different and alternative ways: (a) they may decide to access the air carrier’s reservation system and extract a copy of the required PNR data (the so-called pull method); or (b) they may receive the requested data directly from the air carriers “thus allowing air carriers to retain control of what data is provided” (the so-called push method) (whereas n. 16 of Directive 2016/681). Despite the provision of two different data collection methods, the Directive specifies that the push method is considered to offer a higher level of data protection and should be mandatory for all air carriers. (Whereas n. 16 of Directive 2016/681)

Once received, PNR data should be stored and analyzed by the national competent authorities referred to in Article 7 of Directive 2016/681. However, the subsequent operations on PNR data may be carried out by the latter authorities for purposes limited to preventing, ottavia carla bonacci

418  elgar concise encyclopedia of aviation law detecting, investigating, and prosecuting terrorist offenses or serious crime (Article 7(4) of Directive 2016/681). Directive 2016/681 allows the exchange of the PNR data between Member States’ competent PIUs. In this case, the exchange may be carried out by using any existing channel (i.e., data exchange networks or electronic means for cooperation) between the competent authorities of each Member State. Some of the most important provisions of Directive 2016/681 concern the retention periods of the data collected by the national authorities. PNR data provided by the air carriers may be stored in a PIU’s database for five years after their transmission to the national PIU of the Member State on whose territory the flight lands or departs. Six months after their transfer, all PNR data shall be depersonalized by means of hiding passengers’ names, addresses, contact information, payment information, and other information specified in Article 12(2) of the Directive. After five years of retention, Member States shall permanently delete all PNR data, without prejudice to any current anti-terrorism operation if the data, for this purpose, have been transferred and/or are used by other competent authorities. In this case, the retention of such data by the competent authority involved in anti-terrorism operations shall be regulated by national law. Lastly, Article 13 of Directive 2016/681 takes into account the relevance of the protection of passengers’ personal data. Each Member State, in the processing of PNR data, shall guarantee to the passengers the rights to protect, access, rectify, erase, and restrict their personal data, as foreseen in European and national law and in Council Framework Decision 2008/977/JHA of 27 November 2008, subsequently repealed by Directive (EU) 2016/680. These rights shall be guaranteed on the basis of the general principle of non‑discrimination of the passengers.

V. Concluding Remarks The extension of IATA’s New Distribution Capability (NDC) program, ONE Order, which enables the direct distribution of travel products and seamless data exchange among various platforms, is likely to influence the future use of PNRs.

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Airlines currently have to deal with three different forms of travel records: PNRs, which concentrate on route information; e-tickets, which record payment information; and electronic miscellaneous documents (EMDs), which contain a list of extras that were purchased. These records are produced using the traditional EDIFACT format, which is common in the aviation sector. Additionally, they are kept in several backoffice systems, which raises complexity and costs for carriers. A ONE Order will enable a single system to collect all relevant travel data into a single XML file. For passengers, suppliers, airlines, and travel agencies, this will significantly simplify the use and exchange of PNR data. Between 2021 and 2025, IATA anticipates that this approach will be widely adopted. Ottavia Carla Bonacci

References Circular 309, Guidelines to establish uniform measures for PNR data transfer (April 2006) ICAO Doc FALP/6-WP/5. Council Directive 2004/82/EC on the obligation of carriers to communicate passenger data (29 April 2004) [2004] OJ L261. P. De Hert and V. Papakonstantinou, ‘The EU PNR framework decision proposal: Towards completion of the PNR processing scene in Europe’ (2010) 26(4) Computer Law & Security Review 368–376. Guidelines on Passenger Name Record (PNR) Data (2010) ICAO Doc 9944. B. Lord, ‘The protection of personal data in international civil aviation: The transatlantic clash of opinions’ (2019) 44(3) Air and Space Law 261. A. Masutti and Z. Najah, ‘EU Directive to use passenger name record (PNR) to prevent terrorist threats’ (2016) 2 The Aviation & Space Journal 50–53. O. Mironenko Enerstvedt, Aviation Security, Privacy, Data Protection and Other Human Rights: Technologies and Legal Principles (Springer 2017). Opinion of the European Union Agency for Fundamental Rights on the Proposal for a Directive on the use of Passenger Name Record (PNR) data for the prevention,

passenger name record  419 detection, investigation and Prosecution of terrorist offences and serious crimes (14 June 2011). J. S. Szyliowicz and L. Zamparini, Air Transport Security – Issues, Challenges and National Policies – Comparative

Perspectives on Transportation Security Series (Edward Elgar Publishing 2018). D. Zadura, ‘Importance of personal data protection law for commercial air transport’ (2017) 2017(1) Transactions on Aerospace Research 35–44.

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121. Passenger Sales Agency Agreement I. Definition A Passenger Sales Agency Agreement (PSAA) is a standard agreement with standardized wording between a travel agent and an airline on the conditions of selling airline tickets to customers. In this contractual relationship, the agent is an accredited IATA agent and the airline is an IATA member, IATA being the International Air Transport Association. Among others, IATA’s aim is the simplification of the issuance and the billing of air tickets. In order to fulfill this purpose, upon prior assessment regarding reliability, solvency, and other factors within an accreditation procedure, IATA grants certain agents (the so-called IATA agents) the right to issue tickets of airlines that are IATA members. The IATA agent can book, issue, and sell air tickets of the respective airline’s scheduled flights to customers in the name and on behalf of the airline as per the PSAA and on the basis of the airline’s regulations and rules. The PSAA is thus a standard global contract that applies between agents and airlines worldwide and governs the legal relationship between the travel agent and the airline. For the conclusion of the PSAA, the airline is represented by the IATA General Director who acts in the name and on behalf of the airline. The terms and conditions of the PSAA are set out in the IATA Resolution 824.

II. IATA Resolution 824 According to Clause 1, the PSAA is effective between the respective agent and airline upon appointment of the agent by the airline, in accordance with the laws of the State in which the agency is based. Under the PSAA, an agent is not obliged to sell tickets of the respective airline. Also, an airline is not obliged to appoint the respective agent. It is the commercial decision of the agent as to whether it wishes to sell a certain airline’s tickets and it is the commercial decision of the airline as to whether it appoints the agent. The PSAA is thus a framework agreement.

Clause 2 of the PSAA determines the rules, resolutions, and provisions that apply to the relationship between the agent and the airline, e.g., the Sales Agency Rules and the rules on the Billing and Settlement Plan (BSP). In Clause 3, it is specified that the agent is authorized to sell air tickets of the respective airline as authorized by the airline. The tickets must be sold on behalf of the airline and in compliance with the airline’s tariffs, conditions of carriage, and other written instructions of the airline. The agent’s obligation to comply with the laws regulations is stipulated in Clause 4. Clause 5 states the obligation of the agent not to create a notion to a certain airline through its designation. Agents shall act as neutral entities. Clause 6 sets out the obligations and conditions concerning the airline’s traffic documents and identification plates. The billing and payment procedure is described in Clause 7, whereas special rules apply to agents in Australia and Germany. Refunds to passengers are regulated in Clause 8, as per which they must be made in accordance with the airline’s tariffs, conditions of carriage, and written instructions. Clause 9 stipulates the remuneration of the agent whereas the amounts and percentages are not determined in the PSAA. Records and inspections are set out in Clause 10, obliging the agent to save and store records and accounts, recording the details of all transactions. The documents have to be preserved for at least two years as from the date of the transaction. Clause 11 safeguards that both the airline and the agent maintain confidentiality regarding information and data relating to the respective other party. The airline may collect, process, and disclose data for financial assessment of the agent, for orderly operating the agency administration, or for the Billing and Settlement Plan. Clause 12 contains rules on transfer, assignment and change of the legal status, ownership, name, or location of the agent. The conditions of the termination of the PSAA are stipulated in Clause 13: ●

●

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the airline withdraws its appointment of the agent; the agent withdraws from its appointment by the carrier;

passenger sales agency agreement  421 ●

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the agent is removed from the agency list; the agent relinquishes its IATA approval/ accreditation.

The termination notice must be given in writing. As per Clause 14, for legal disputes, arbitration shall be conducted. The details of the arbitration proceedings, such as the number of arbitrators or the language of the arbitration proceedings, are not indicated in the PSAA. Such procedural requirements should be agreed upon in an individual agreement between the airline and the agent. Indemnities and waivers are stipulated in Clause 15 whereas each party indemnifies and holds harmless the respective other party

from and against liability for any loss, injury, or damage. Clause 16 determines the addressee for notices sent under the PSAA. Clause 17 clarifies that the PSAA shall be interpreted and governed under the law applicable at the place of business of the agent. Clauses 18 and 19 contain severability and the notion that the PSAA supersedes any other agreements between the agent and the respective airline. Claudia Hess

References IATA Factsheet: Passenger Sales Agency Agreement (PSAA). IATA Resolution 824 – Passenger Sales Agency Agreement (VERSION II).

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122. Pilot-in-Command I. Definition The term “pilot-in-command” does not appear in the Convention on International Civil Aviation of 1944, also referred to as the Chicago Convention, which only employs the word “pilot” when it refers to pilotless aircraft and licenses of personnel (Articles 8 and 32). It appears, however, in the Annexes, manuals, and other guidance materials drafted within the International Civil Aviation Organization (ICAO). The Annexes to the Chicago Convention even provide a definition of pilotin-command as “the pilot designated by the operator, or in the case of general aviation, the owner, as being in command and charged with the safe conduct of a flight” (see, e.g., Annex 2, Chapter 1, at 1–5; the same definition is also included in other Annexes to the Chicago Convention, such as, for instance, Annex 6, Part I, Chapter 1, at 1–10). The term “pilot-in-command” was also proposed for inclusion in the Convention on Offences and Certain Other Acts Committed on Board Aircraft of 1963, commonly referred to as Tokyo Convention (see FitzGerald [1964]), which, rather, employs the expression “aircraft commander” (Articles 5–10 and 13). This was likely the result of the influence exerted on the drafters by the Draft Convention on the Legal Status of the Aircraft Commander, which the Comité Technique d’Experts Juridiques Aériens (CITEJA) discussed in the 1930s and adopted in 1946 (Knauth [1947]). An early draft of the Tokyo Convention however, defined the “aircraft commander” as the “individual on board an aircraft who is responsible for the operation and safety of the aircraft” (FitzGerald [1963]); a definition very similar to that of “pilot-in-command,” which, at that time, was contained in the 1962 version of Annex I to the Chicago Convention (i.e., “the pilot responsible for the operation and safety of the aircraft during flight time”). Eventually, the definition was not included in the final version of the treaty at the suggestion of the United Kingdom, which noted that the same provided nothing else but an explanation of what the operator of the aircraft was (FitzGerald [1964]). Yet, already in 1953, with respect to the Draft Convention on the Legal Status of the Aircraft Commander,

it was observed that the aircraft commander and the pilot-in-command are one and the same person, given that any contrary conclusion would lead to the “uncomfortable” result of having two captains on the same ship (Kamminga [1954]). Attempts to modernize the Tokyo Convention suggested replacing the term “aircraft commander” with that of “pilot-incommand” throughout the treaty and even proposed to include a definition of the latter in accordance with the Annexes to the Chicago Convention (ICAO 2012, Appendix 4, paras. 8.3 and 8.4, and A4-46). Notably, however, the proposed definition would have expanded the one laid down in the Annexes by specifying that “where the pilot-in-command becomes incapacitated for whatever reason, the designated second-in-command assumes the function of the pilot-in-command” (ICAO 2012, at A4-46).

II. Authority and Responsibility of the Pilot-in-Command The authority and responsibility of the pilot-in-command have been progressively defined as a result of the development of international air traffic. The already recalled Draft Convention on the Legal Status of the Aircraft Commander, which represented an early attempt to regulate these aspects (Nicolas Mateesco Matte [1975]), was highly criticized, among other reasons, for poorly defining the obligations of the aircraft commander, and it was never followed up. Whereas the Chicago Convention does not expressly deal with the matter, requiring only that pilots are licensed, its Annexes entrust the pilot-in-command with responsibility for the operation and safety of the aircraft, and for the safety of the crew members, passengers, and cargo onboard, from the moment of takeoff until the moment the aircraft comes to rest and the engines are shut down (Annex 6 to the Chicago Convention, Part I, Chapter 4, at 4.5.1). More specifically, they provide that she or he “shall, whether manipulating the controls or not, be responsible for the operation of the aircraft in accordance with the rules of the air,” unless circumstances occur that render a departure absolutely necessary in the interests of safety (Annex 2 to the Chicago Convention, Chapter 2, at 2.3.1). Such provisions could not take fully into account technological developments. There would indeed be no meaning in attaching de jure

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pilot-in-command  423 responsibility to the pilot-in-command when she or he is de facto incapable of exercising it, as a result of reliance on new technologies. It has been suggested in this respect that the pilot-in-command, for retaining her/his full responsibility, should be put in the position to be able to intervene at any time, even in the context of highly automated sequences of a flight (Schmid [2000]). In discharging her/his duties, the pilotin-command shall, before takeoff, approve and sign an operational flight plan (Annex 6, Part I, Chapter 4, at 4.3.3) and “become familiar with all available information appropriate to the intended operation” (Annex 2 to the Chicago Convention, Chapter 2, at 2.3.2). Moreover, she or he shall ensure that a flight will not be commenced unless she or he is satisfied that flight conditions have been met, in terms of adequacy of facilities and navigation aids, instruments, and maintenance procedures, taking into account the type of operation to be conducted (Annex 6 to the Chicago Convention, Part II, Chapter 2.1, at 2.2.1 and Chapter 2.2, at 2.2.3.1). During the flight, the pilot-in-command must ensure, inter alia, that passengers are made familiar and instructed about the location and use of emergency equipment and procedures (Annex 6 to the Chicago Convention, Part II, Chapter 2.2, at 2.2.2.3). The pilot-in-command must also manage inflight fuel (Annex 6, Part I Chapter 4, at 4.3.7) and notify the nearest appropriate authority of any accident, resulting in serious injury or death of any person or substantial damage to property (Annex 6, Part I, Chapter 4, at 4.5.3). The pilot-in-command is responsible for ensuring that suspected communicable diseases are reported to air traffic control (Annex 9 to the Chicago Convention, Chapter 8, at 8.15) and that all defects – albeit only suspected – of the airplane are reported to the operator at the termination of the flight (Annex 6 to the Chicago Convention, Part II, Chapter 3.4, at 3.4.5). She or he has also duties with respect to aircraft in distress, which are defined in detail in Annex 12 to the Chicago Convention. Moreover, the pilot-in-command has final authority as to the disposition of the aircraft (Annex 2 to the Chicago Convention, Chapter 2, at 2.4). Accordingly, she or he has the responsibility of taking any action that will best avert collisions (Annex 2 to the Chicago Convention, Chapter 3, at 3.2).

Likewise, she or he, in case of unlawful interference, shall attempt to land as soon as possible at the nearest suitable aerodrome or at a dedicated one assigned by the appropriate authority unless considerations aboard require otherwise (Annex 2 to the Chicago Convention, Chapter 3, at 3.7.2). As has been underlined, such a rule would de facto “deemphasize[s] the right of the overflown state to divert or intercept an aircraft,” given that it is the pilot-in-command who is the one who retains the ultimate power to decide where to land or, even, not to land at all when the circumstances require so (Huttunen [2021]). In any case, the pilot-in-command, as the person responsible for the safety of the aircraft during its operation, is obligated, in the aftermath of an act of unlawful interference, to submit a report without delay to the designated local authority (Annex 6 to the Chicago Convention, Part I, Chapter 13, at 13.5 and Part II, Chapter 2.9, at 2.9.2). As a result of the fact that they are included in the Annexes to the Chicago Convention, these provisions laying down the pilot-incommand’s authority and responsibility have, however, limited legal force, mostly linked to their effective translation into domestic legal regimes of States parties, compared to the one they would have if they were set forth in the text of the treaty. Remarkably, the Tokyo Convention is also relevant insofar as it defines the aircraft commander’s authority with respect to in-flight safety (Sami Shubber [1973]). In fact, despite the use of the term “aircraft commander,” the Tokyo Convention arguably spells out the powers of the pilot-in-command in case of offenses committed or about to be committed onboard an aircraft in flight. Hence, for instance, Article 6 of the last mentioned Convention provides that: “The aircraft commander may, when he has reasonable grounds to believe that a person has committed, or is about to commit, on board the aircraft, an offence or act contemplated in Article 1, paragraph 1, impose upon such person reasonable measures including restraint which are necessary: (a) to protect the safety of the aircraft, or of persons or property therein; or (b) to maintain good order and discipline on board; or (c) to enable him to deliver such person to competent authorities or to disembark him in accordance with the provisions of this Chapter.” Subsequent provisions also entrust the commander with the powers to disembark in the elena carpanelli

424  elgar concise encyclopedia of aviation law territory of any State in which the aircraft lands and to deliver to the competent authorities any person who she or he has reasonable grounds to believe has committed, or is about to commit, onboard the aircraft an act contemplated in Article 1 of the same Convention (Articles 8.1 and 9.1). Moreover, they impose on her or him notification and reporting activities with respect to the facts and reasons at the basis of the adoption of restraining and disembarking measures and to the intention of delivering the person to the competent authorities (Articles 7.2, 8.2 and 9.2).

III. Liability Issues The Convention on the Unification of Certain Rules relating to International Carriage by Air of 1929 (The Warsaw Convention) exonerates the air carrier’s liability in case of negligent pilotage if she/he and her/his agents have taken all measures to avoid the damage (Article 20). It does not clarify, however, whether the pilotin-command could be held directly liable with respect to passengers or shippers. Arguably, the Convention for the Unification of Certain Rules relating to International Carriage by Air of 1999 (The Montreal Convention) eventually solved the issue in the sense that the carrier’s liability limits also apply to the pilotin-command as a carrier’s agent, provided that she/he acted within her/his employment contract (Article 30). In the context of liability claims, it may be difficult also establishing the identity of the pilot-in-command, at least when a dual-control aircraft has crashed and there are no eyewitnesses. In the United States, courts have mostly solved this issue on a presumption of the identity of the pilot-in-command, taking into account the existing relationship between the two pilots (Bleisch [1998]). Elena Carpanelli

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References Barbara Bleisch, ‘Proof of Pilot Identity in Matters Arising from the Crash of Dual Control Aircraft’, 63 Journal of Air Law and Commerce 681–695 (1998). Gerald F. FitzGerald, ‘The Development of International Rules Concerning Offences and Certain Other Acts Committed on Board Aircraft’, 1 Canadian Yearbook of International Law 230–251 (1963). Gerald F. FitzGerald, ‘Offences and Certain Other Acts Committed on Board Aircraft: The Tokyo Convention of 1963’, 2 Canadian Yearbook of International Law 191–204 (1964). Mikko T. Huttunen, ‘The Right of the Overflown State to Divert or Intercept Civil Aircraft under a Bomb Threat: An Analysis with Regard to Ryanair Flight 4978’, 14 Journal of Transportation Security 291–306 (2021). ICAO, Report of the ICAO Special SubCommittee of the Legal Committee for the Modernization of the Tokyo Convention Including the Issue of Unruly Passengers (2012). Menno Sjoerd Kamminga, The Aircraft Commander in Commercial Air Transportation (Martinus Nijhoff, 1954). Arnold W. Knauth, ‘The Aircraft Commander in International Law’, 14 Journal of Air Law and Commerce 157–169 (1947). Nicolas Mateesco Matte, The International Legal Status of the Aircraft Commander (Pedone, 1975). Ronald Schmid, ‘Pilot in Command or Computer in Command? Observations on the Conflict between Technological Progress and Pilot Accountability’, XXV Air & Space Law 281–290 (2000). Sami Shubber, Jurisdiction over Crimes on Board Aircraft (Martinus Nijhoff, 1973).

123. Pool Agreements I. Introduction: Route Pools under Bilateral Air Services Agreements “Pool Agreement(s)” in air law is an expression identifying forms of collaboration between two or more airlines for commercial and operational purposes, aimed at addressing and solving one or more common features with a view to producing an economically sound operation. After the failure of the Chicago Conference of 1944 to reach an agreement on a multilateral system of exchange of air traffic rights, States turned back to bilateral Air Services Agreements (ASAs) to regulate the exchange of traffic rights, thus substantially supporting the position of States adopting a more protectionist attitude. In this context, the control of traffic rights, flight frequencies, pricing of air services, and capacity of aircraft is provided for in ASAs or is left to specific agreements between the airlines of the two States concerned. Within the so-called traditional ASAs, the agreed services could be operated in the context of pool arrangements between the designated airlines. The establishment of such arrangements was in some cases even a mandatory requirement under the relevant ASA. Arrangements of this kind, also known as route or revenue/cost pool arrangements, were particularly widespread in Europe, where the air transport market was characterized by the presence of numerous players from different States, competing with each other, called upon to operate on short-to-medium haul routes characterized by high fares and low average earnings. Originally, the main purpose of such arrangements was to stem the distorting effects of competition between the pool participants, through the agreed management of air services on the respective routes, achieving a more rational use of aircraft, avoiding duplication of flights, and consequently favoring the provision of higher-quality passenger services. The designated air carriers agreed that only one or a limited number of them would actually operate the agreed air services on behalf of the other participating airline or airlines. Although the specific contents of such arrangements were jealously guarded by the

participants in the pool, they had in common that the revenues were pooled and redistributed among the participating airlines according to the number of miles flown, thus ensuring an advantageous position in favor of the airline operating the services. The agreements were in any case to be considered certainly permitted, finding legitimacy at international level within the provisions of the Chicago Convention of 1944: in particular on the basis of Article 77, which states there is nothing to prevent any of the contracting States from “pooling their air services on any routes or in any regions,” provided that this is done in accordance with the provisions of the Chicago Convention; furthermore, under Article 79 a contracting State may participate in pooling agreements either directly, through its government, or through a designated airline, which does not matter whether it is wholly or partly owned by the State or is wholly private. Route pools, or pools governing the operation of air services, are usually flanked by other forms of operational agreements between carriers, which may involve rationalizing schedules, centralizing reservations, joint sales offices, as well as the so-called Technical Pools, through which airlines aim to exchange, on a local or large scale, spare parts, ground equipment, maintenance services, and ground handling, thus avoiding duplication of their respective warehouses, manpower, equipment, and dedicated space at specific airports, with the result of significantly reducing the operating costs of the individual participant. At an early stage, price-fixing agreements were also common, whereby the participating airlines fixed their fares for the operation of the agreed air services by mutual agreement. However, after the reestablishment of the International Air Transport Association (IATA) in 1945, these agreements were, for the most part, institutionalized within the mentioned association. In particular, for price-fixing purposes, IATA has provided for specific Traffic Conferences, the Tariff Coordinating Conferences, respectively, Passenger and Cargo, having authority with respect to traffic within specific geographical areas (TC1 for the Western Hemisphere; TC2 for Europe, Africa, and the Middle East; TC3 for Asia and Australia) and with respect to traffic between different geographical areas (TC 1/2, TC 2/3, TC 3/1, and TC 1/2/3).

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426  elgar concise encyclopedia of aviation law Traffic Conferences hold regular meetings not less frequently than once every two years.

II. Bermuda I-like ASAs and the Advent of Code Sharing Albeit the 1944 Chicago Conference had developed the Standard Form of Agreement for Professional Air Routes to serve as a tool for negotiations, States preferred to exchange their air traffic rights following the scheme of the bilateral agreement concluded between the United States and the United Kingdom in 1946, known as the Bermuda I Agreement. Unlike the previous bilateral agreements, those ASAs negotiated on the basis of the Bermuda I Agreement did not directly intervene in the control of frequency and capacity on routes. For that particular reason, however, such agreements did not mark the end of pool arrangements, which were still concluded when governments wanted to (re-)introduce restrictions on, for instance, the capacity of the aircraft to be used. A few years later, in the second half of the 1960s, economic reasons, in particular the replacement of propeller-driven aircraft with jet-driven aircraft in fleets, as well as internal US regulations, forced an air carrier to reach an agreement with a number of regional airlines to operate the shorter and less profitable services: the latter operated connecting flights designed to feed the hubs, but using the former’s designator code, thus enabling it to avoid the infringement of the strict regulations imposed by the Civil Aeronautics Board (CAB), the body that, prior to the 1978 deregulation, operated institutional control of the US market. The agreement described differs from the already known scheme of the interline agreement in that the mutual recognition of the respective passenger tickets, baggage checks, and air waybills are replaced by a system under which each of the minor airlines operates one or more of its flights using the IATA designator code assigned to the principal airline. This was the first form of code-sharing agreement, a contractual instrument that, in conjunction with other factors, would lead to a profound revolution in the forms of collaboration between carriers and the world market itself, marking the end of route pools and the birth of new types of alliances. simone vernizzi

III. From Deregulation to Liberalization: The New Open Skies Agreements Among the most significant change factors were the introduction of cutting-edge technology in flight reservation and boarding systems (CRS), the use of higher-performance aircraft capable of serving particularly long routes, the reduction of the dirigiste role of States, and the protectionism exercised by governments in ASAs. In particular, with reference to reducing the dirigiste role of States, in 1978 the United States adopted the Airline Deregulation Act of 1978, thus eliminating the regulation of fares, routes, and schedules in domestic markets. The success of this domestic deregulation led the United States to seek a similar free market approach in international aviation. Albeit the International Air Service and Competition Act of 1979 encountered limited success, it played a fundamental role in contributing to defining the subsequent US policy, aimed at identifying countries willing to share the same competitive drives in setting air fares and capacity, and, ultimately, renegotiation of the existing ASAs with third States and replacing them in favor of the open skies model, thus contributing to a strong increase in competitiveness between carriers with respect to the supply of international air services and, at the same time, to the creation of alliances between airlines. In this respect, the bilateral agreement concluded between the United States and the Netherlands in 1992 can be considered the archetype of all subsequent open skies agreements concluded by the United States with other States. Under this agreement, the use of code sharing no longer encountered the obstacles and restrictions contained in traditional agreements, thus also allowing airlines free access to fifth freedom and other services. Since the second half of the 1980s, the liberalization process has also affected the European air transport market, albeit in a more gradual and regulated manner. This changed market context, characterized by increased competitiveness at the European and international levels, has favored the creation of new and distinct forms of collaboration between airlines, marked by different aims and different levels of integration between the participants. At the same time, deregulation and liberalization of air services have led to increased attention given

pool agreements  427 to the application of competition law regimes as regards the operation of air services.

IV. Strategic Alliances Within the airline industry, it is possible to identify at least two different categories of alliances between air carriers: tactical (or informal) alliances and strategic (or formal) alliances. With tactical alliances, two or more airlines pursue the objective of filling gaps in their own networks by creating interconnections between their respective networks. Similar partnerships normally occur between major and minor airlines in a context of hub-and-spoke networks; they have become very popular in the US market since the middle of the 1980s. The loss of profit resulting from overcapacity, declining load factors, and recession that airlines suffered in the early 1990s is the main reason behind the emergence of a new type of alliance, the so-called strategic alliances. Such partnerships have much broader aims, tend to last longer, and normally involve a deeper commitment on the part of the participants. Within the scope of these alliances, the participating carriers aspire to the so-called external growth of their respective networks through their integration at a global level that can guarantee economies of scale and scope and allow the acquisition of new market shares. At present, there exist three major strategic global alliances: Star Alliance, Sky Team, and Oneworld. If governments were initially skeptical about strategic alliances, from the second half of the 1990s they realized that such forms of collaboration might be the only valid alternative to the risk of bankruptcy for national airlines: it is significant to note, in this respect, that the major European airlines are part of at least one of the three global alliances. In any case, airlines that are part of an alliance are not called upon to participate in all initiatives, and generally they choose to seek partnerships with other alliance members that vary in content and purpose, according to a practice known in the industry as “variable geometry”; there are also examples of tactical alliances between members of different strategic alliances. The above forms of cooperation between airlines differ significantly, ranging from limited agreements of a commercial nature aimed at providing reciprocal access to frequent-flyer programs and lounges to the highest levels of integration, which can be observed for instance in the so-called metal-neutral joint ventures, virtual mergers in which the carriers

undertake to share revenues, costs, and profits; determine prices, capacity, and flight frequencies; and cooperate on marketing and sales strategies, so much so that it becomes unimportant for each participating airline as to which aircraft will carry the passengers (i.e., “metal-neutral”). In this regard, and from a competition law perspective, if limited forms of cooperation, such as the mere conclusion of one or more code-sharing agreements, do not raise any particular issues, broader and more articulated merger-like agreements may reasonably arouse the attention of the institutions protecting competition, which are concerned to avoid forms of concentration that would result in a disadvantage for the market and for customers of air transport services. Simone Vernizzi

References Air Service Agreement Liberalisation and Airline Alliances. Country-Specific Policy Analysis, report by ITF at the OECD (2014), available at: https://www​.itf​-oecd​.org. Cheng-Jui Lu, Angela (2002), International Airline Alliances: EC Competition Law/ US Antitrust Law and International Air Transport, Kluwer Law International, New York. Chiavarelli, Emilia, Code-sharing: An approach to the open skies concept?, (1995) 20 Annals of Air & Space Law 195. Dempsey, Paul S., Regulatory schizophrenia: Mergers, alliances, metal-neutral joint ventures and the emergence of a global aviation cartel, (2018) 83 J. Air L. & Com. 3. Dutoit, Bernard (1957), La collaboration entre compagnies aériennes, H. Jaunin Ed., Lausanne. Miller, Russell, International airline alliances – A review of competition law aspects, (1998) 26 Air & Space Law 125. Secondary Community law instruments contained in the packages of liberalization of Community air transport (and the three main regulations contained in the third package, EEC Reg. nos. 2407, 2408, and 2409/1992, the provisions of which were subsequently transposed, with amendments, into EC Reg. no. 1008/2008) are all available at: https://www​.eur​-lex​.europa​.eu. Wager, Walter H., International airline collaboration in traffic pools, rate-fixing and joint management agreement, (1951) 18 J. Air L. & Com. 192. simone vernizzi

124. Principal Place of Business As applied to aviation, the “Principal Place of Business” (PPoB) refers to an airline’s “home” State and is used to establish a factual and genuine link between the airline and that State. This link is twofold; to determine the State responsible for safety oversight of the airline and its aircraft and to designate a nationality to the airline for economic considerations. The full grasp of the PPoB concept is best explained along three trends: to begin with, the PPoB was first introduced at the level of the International Civil Aviation Organization (ICAO) to transfer the responsibility for safety oversight from the State of registry of an aircraft to the State of the PPoB of the airline, i.e., the State where it operates the aircraft and with whom it has a closer link. Second, the link between the aircraft operator and the State can also be indicated by the airline’s nationality, used for the economic regulation of air transport for licensing purposes and to regulate market access. In this context, the PPoB has gained particular importance in the internal market of the European Union (EU), where airlines bear a EU nationality and can have multiple hubs in different States, and for States like Brazil that have relaxed ownership and control requirements to attract foreign investments. Third, these changing notions of ownership and control of airlines and their increasingly complex international company structures demonstrate why, in certain jurisdictions, it has become more challenging to determine the airline’s PPoB. In light of enforcement of ICAO’s international safety standards, this underpins the need to establish a jurisdictional link between an airline and the competent national authority for effective regulatory control and safety oversight.

I. Registration of Aircraft The term “principal place of business” first appeared in the Chicago Convention in 1980, with the introduction of Article 83 bis creating opportunities for the use of aircraft by an airline that has its principal place of business in another State than in which the aircraft is registered. National rules provide for the conditions of aircraft registration in the State’s

registry. They may include the requirement for the operator of the aircraft to have its principal place of business in the territory of the State. Where this is not the case, Article 83 bis allows for arrangements to be made for the transfer of functions and duties of the State of registry of an aircraft to the State in which the operator of the aircraft has its principal place of business or permanent residence. The functions and duties of the State of registry include the State’s responsibility for issuing Certificates of Airworthiness (CoA) of the aircraft registered in its national registry and licensing personnel serving on these aircraft. This individual State’s responsibility for safety oversight based on the link with the aircraft’s nationality or the operator forms one of the cornerstones of the international aviation safety framework.

II. Airline Licensing and Economic Regulation of Air Transport A second safety pillar builds on the link between the State and the operator of the aircraft, i.e., the airline or air carrier. To operate international air services, the carrier must be issued an Air Operator Certificate (AOC) and operating license by the competent authority of the “home” State in accordance with national licensing provisions. These provisions typically include compliance with safety standards, financial conditions, insurance, and nationality requirements. The nationality criteria ensure the airline’s presence and link with the State, which the latter requires to exercise regulatory control and safety oversight, as to which see the next section. Within the context of economic regulation of air transport, States designate airlines pursuant to nationality clauses laid down in Air Services Agreements (ASA) for the use of the traffic rights that the “home” State of the airline so designated has bartered with other States. Certain ASA’s explicitly require the principal place of business of the airline to be within its territory; see, for instance, the ASA between Hong Kong and Croatia (20 August 2001). However, most agreements rely on ownership and control requirements, pursuant to which the airline must be “substantially owned” and “effectively controlled” by a State or its nationals (See, Manual on the Regulation of International Air Transport). The EU Court of Justice confirmed the

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principal place of business  429 consequences of not fulfilling these nationality criteria in a case concerning Portugal’s national carrier, TAP, where it considered that “moving TAP’s principal place of business outside of Portugal would, […] mean losing the validity of the operating licence and of the AOC issued to TAP by the competent Portuguese authority, thereby precluding the operation of all scheduled air route services” (Case C-563/17, para. 77). With the liberalization of airline ownership and control, and the subsequent consolidation of airlines and cross and foreign investments, and the increasingly complex and multi-owner company structures of airlines with different types of shareholders, it is not always easy to “pierce the corporate veil” and establish who ultimately owns an airline or has a controlling influence on an airline’s day-to-day business and decisionmaking. In that regard, the principal place of business concept offers an alternative criterium for establishing the link between a State and “its” airline and has been incorporated in a model clause of ICAO’s Template Air Services Agreement (Doc 9587, Annex 5). Nationality based on PPoB can be an interesting alternative for States like Brazil that are trying to attract foreign investments. The PPoB can also be used as an additional nationality requirement, next to ownership and control criteria, as is the case in the European Union (see EU Regulation No 1008/2008, Art 4). On the contrary, in other jurisdictions, the distinction between an airline’s nationality and PPoB is irrelevant. In the United States, aviation is a federal affair; hence, it does not matter that American Airlines is incorporated in the State of Delaware but has its principal place of business in Texas.

III. Safety Oversight and Regulatory Control ICAO’s international aviation standards require a “genuine” link between the airline and the State responsible for that airline’s safety oversight and regulatory control so that it can exercise and maintain this control effectively. Such control is envisaged through certification, licensing, and monitoring compliance by the competent national authorities of that State. For these authorities to exercise effective regulatory control, there must be a permanent, stable, and effective link with the air carrier and the location of its core operational control and financial functions, i.e., its principal place of business, so that

these activities are visible, “capable of physical inspection” (UK CAA interpretation of PPoB), and of being overseen and monitored by said authorities. The provisions on safety management, licensing, regulatory control, and monitoring create “reciprocal regulatory obligations between airlines and these authorities and thus a specific, stable link between them” (Case T-259/20, para 39). With airlines becoming increasingly multinational and having hubs or offices in multiple countries, it is necessary to establish the jurisdictional link with the competent national authority responsible for the airline’s safety oversight and regulatory control. Within the European Union liberalized internal market, where the nationality requirement for community carriers to be majority owned can be an accumulation of different EU nationalities and where there is the so-called freedom of establishment, the principal place of business of the airline determines the competent authority. It is defined as “the head office or registered office of the undertaking within which the principal financial functions and operational control of the activities referred to in this Regulation are exercised” (see, EU Regulation 1321/2014). Where this definition is not sufficient, and to prevent airlines from “authority shopping” by which they set up companies and subsidiaries to establish a favorable oversight regime, the following elements can indicate the principal place of business of an airline: 1. where its Head office is located; 2. where it is registered and pays corporate taxes; 3. where its main administrative and financial functions are performed; 4. where the principal operational control of its activities is located; 5. where its key personnel controls and coordinates daily operational activities; 6. where it employs a significant number of nationals in managerial, technical, and operational positions; 7. where records regarding the operational and financial decisions affecting the direction, control, planning, and coordination of finances of its activities are kept; 8. where it has a substantial amount of its operations and capital investments in physical facilities and where its aircraft are registered and based. niall buissing

430  elgar concise encyclopedia of aviation law This list is not exhaustive. International corporations can be set up in many ways, and each organizational structure should be assessed on a case-by-case basis, weighing the different elements to establish an airline’s PPoB. This should ensure that the competent national authority best placed and equipped to monitor an airline effectively is tasked with its oversight and control. To conclude, the principal place of business of an airline is often a fixed location, but as a concept, it is “on the move” and not defined as such in international aviation. In practice, using the PPoB to establish the link with a State has two different approaches; one concerns a State’s responsibility for safety oversight and the other is more economical and market-oriented and depends on each jurisdiction’s policy. Niall Buissing

References Air Services Agreement between the Government of the Hong Kong Special Administrative Region of the People’s Republic of China and the Government of the Republic of Croatia, 20 August 2001, available at: https://www​.doj​.gov​.hk​/en​/ external​/pdf​/lawdoc​/asacroatiae​.pdf.

niall buissing

Commission Regulation No 1321/2014, on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks (Recast), as variously amended. EU Court of Justice, Case C-563/17, Associação Peço a Palavra and Others v Conselho de Ministros, judgement of 27 February 2019. EU Court of Justice, Case T-259/20, Ryanair DAC v European Commission, judgement of 17 February 2021. EU Regulation No 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community (Recast). International Civil Aviation Organisation, Policy and Guidance Material on the Economic Regulation of International Air Transport (Doc 9587, 3rd edn, 2008), and Annex 5 ICAO Template Air Services Agreement. International Civil Aviation Organisation, Manual on the Regulation of International Air Transport (Doc 9626, 3rd edn, 2018), Part IV. UK Civil Aviation Authority CAP1539, UK CAA Interpretation of Principal Place of Business, March 2017, available at: https:// www​.caa​.co​.uk​/cap1539.

125.  Product Liability I. A Doctrine Emerges Although some legal historians have argued that “products liability” law has origins that can be traced as far back as the 12th century in England, the law of products liability with respect to liability for physical harm to the user of a product (as opposed to liability for the sale of substandard goods that merely disappoint a buyer) really began in the mid-1800s in England. For centuries, the general rule of law was caveat emptor, or “buyer beware,” a theory grown out of medieval times that a buyer had no recourse against a business except the buyer’s own acuity and skills. It has been said that the doctrine reflected the times when technology was less complex and trade generally interpersonal. Even through the Industrial Revolution, manufacturers were shielded from liability for many product-related injuries by “no-duty” rules reflecting a laissezfaire approach to market regulation. As the relationship between consumers and manufacturers became less direct, the limited recourse became disfavored. Most scholars trace the departure from this approach to the 1842 English common law case of Winterbottom v. Wright. Although the court ultimately ruled in favor of the defendant manufacturer, it addressed the concept of a “duty” owed to an injured party by the manufacturer in certain circumstances. This language—despite being considered dictum—served as the foundation for courts to not only opine on the existence of a duty, but also to expand its application. US products liability law is intertwined with the political, the social, and particularly the economic history of the country. In the 1916 case MacPherson v. Buick Co., 217 N.Y. 382, New York Court of Appeals Judge Benjamin Cardozo found that a manufacturer, by marketing a product, “assumed a responsibility to the consumer, resting not on contract but upon the relationship arising from his purchase together with the foreseeability of harm if proper care were not used.” In his decision, Judge Cardozo wrote: “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is a thing of danger. Its

nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.” This landmark decision has been adopted by virtually every US State, except Virginia. While decisions like MacPherson provided an avenue whereby injured users of a product could recover against the manufacturer, products liability lawsuits were not particularly common prior to the introduction of the automobile (and all its automotive products) to mass consumers. Modern products liability law began developing into what it is today in the 1950s and 1960s with a strong focus on the protection of the consumer, particularly following the rise of strict liability.

II. Products Liability Claims In the United States, products liability law was created by developments in State common law, which then resulted in most States codifying the doctrine by enacting products liability laws based on different theories of liability. The elements of each cause of action – the bases for each cause of action – are determined by each State. As such, a plaintiff’s claim in one State may differ from that of a plaintiff’s claim in the next State over. Following its adoption in 1963 by the California State Supreme Court in Greenman v. Yuba Power Products, Inc., strict liability has become the primary cause of action in products liability for personal injuries, including wrongful death, sustained by users of products. Under the doctrine of strict liability, anyone who sells or manufactures an “unreasonably dangerous” product that causes physical injury or property damage will be found liable for those damages, even if the seller or manufacturer took all possible steps to ensure the safety of that product. With the adoption of strict liability by courts and legal advisory organizations, most US States have implemented strict liability legislation; the basic tenets of strict liability law in the United States are found in Section 402A of the Restatement (Second) of Torts (Second Restatement) and Sections 1 and 2 of the Restatement (Third) of Torts: Products Liability (Third Restatement). In addition to strict liability, theories of product liability also include negligence,

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432  elgar concise encyclopedia of aviation law failure to warn, and breach of warranty (both express and implied). The essence of the theory of negligence is the affirmative duty of reasonable care imposed by law upon the manufacturer in the design and manufacture of its products. Reasonable care requires conducting analyses of the design and manufacturing processes to discover defects and latent hazards. A product manufacturer also has a duty to warn consumers of dangers inherent in the use of its product of which the manufacturer has knowledge or should have had knowledge. A manufacturer is required to provide adequate warnings and instructions for the safe and effective use of its product and against any dangers not within the knowledge of, or obvious to, the ordinary user. The duty to warn arises from the view that the user of the product is entitled to all available necessary information from the manufacturer for the safe use of the product. A manufacturer’s duty to warn is retroactively applied to the time the product leaves the manufacturer’s control. Along with negligence and strict liability, manufacturers are subject to claims for breach of warranty. A warranty, or a promise of performance, arises with the sale of goods. Where there is a contractual relationship between the seller and the buyer, the buyer is said to be in privity of contract with the seller. In the United States, Article 2 of the Uniform Commercial Code (UCC) governs the sale of all goods between merchants, as well as the sale of goods to consumers. “Privity of contract” was once the only basis of a right to assert a claim for injury or other damages. With the recognition to third parties outside of the contractual relationship, privity of contract was no longer required even for breach of warranty claims, unless the claimant is a sophisticated commercial enterprise.

III. What Is a “Defect” under Products Liability Law? There is no single, precise definition for a “product defect” applicable to all situations. However, the Restatement of Law on Torts, which US courts frequently turn to for guidance on this issue, identifies three general categories of product defect: (1) a design defect, where product was manufactured according to a design that caused or failed to prevent injuries; (2) a manufacturing defect, where the product left the manufacturer’s control jane m. sigda

with a material deviation from its intended design specifications or performance standards (often considered an anomaly or one-off and not a systematic defect); or (3) a warning defect, where the manufacturer failed to warn or adequately warn of a reasonably foreseeable danger of the product.

IV. EU Products Liability Law Products liability claims are most prevalent in the United States. Other jurisdictions have adopted product liability laws to a more limited effect. The common rules governing the liability for defective products in the European Union (EU) were established by the Directive Concerning Liability for Defective Products (the Directive) [85/374/EEC]. Adopted in 1985 and in Force since 30 July 1988, the Directive was Amended by Council Directive 1999/34/EC in May 1999, and the European Commission (the “Commission”) published its Fifth Report on the application of the Directive (dated 7 May 2018). The Directive provides consumer protection against damage caused to health or property by a defective product and to reduce the disparities between national laws. It governs products liability law in the Member States, has limited case law interpreting its provisions, and applies only to products, not services. Comparing US product liability and the EU Directive, the Directive simply defines “defect” using the “Consumer Expectations” test and does not break the “defect” into three categories, such as in the United States manufacturing defect, design defect, and warning defect (or “failure to adequately warn or instruct”).

V. Products Liability in the Aviation Context The aviation industry has become a hotbed of products liability lawsuits. While the increasingly ubiquitous nature of air travel has contributed to this, the highly regulated nature of the aviation industry also has played a role in the rise in products liability lawsuits against manufacturers of aircraft and aircraft components. An Original Equipment Manufacturer (or OEM) is required under the law to use reasonable care in its design, manufacture, assembly, and post-sale processes. Given the sophistication of modern aircraft, an aviation OEM bears responsibility for ensuring all aspects of its “product” comport with applicable standards of care.

product liability  433 “Product” in the aviation context is not limited to an aircraft’s physical fuselage and its components. Under standard aviation products liability insurance policies, “Aircraft Product” encompasses: aircraft which shall be deemed to include Missiles or spacecraft or satellites or spaceships or Launch Vehicles and any ground support or control equipment used therewith, and any article furnished by the [manufacturer] or their predecessors in business and installed in aircraft or used in connection with aircraft or for spare parts for aircraft, or tooling used for the manufacture thereof, including ground handling tools and equipment and also means training aids, instruction, manuals, blueprints, engineering or other data, and/or any article in respect of which engineering or other advice and/or services and/or labour have been given or supplied by the Insured or their predecessors in business relating to such aircraft or articles.

Passengers, crew, and ground persons comprise the likely potential claimants in an aviation products liability action. Products liability laws can be applied to any organization that operates within the aviation industry supply chain, such as an airframe designer or manufacturer, distributors, retailers, wholesalers, repairers, or overhaulers. Aviation OEMs have a continuing duty to warn of dangers that are known, become known or, in the exercise of reasonable care, should become known to anyone in the chain of distribution. With respect to an aircraft manufacturer, “failure to warn” claims can arise out of what is or is not included in flight and maintenance manuals issued to the operator and other technical publications issued by the manufacturer, such as Operational Service Bulletins. Service Bulletins and Flight/Maintenance Manual revisions are the primary means through which an aircraft

manufacturer meets its obligation to advise (warn) owners and operators of safety of flight or potential airworthiness issues. A manufacturer is not without defenses to products liability claims, either based on strict liability or negligence. While products liability claims arise after an aircraft is sold and put into use, the products liability cycle begins, in effect, at the time of design and manufacture. The OEM’s conduct at the time of the design and manufacture, and actions taken after the sale are the basis for findings of a defect or no existence thereof. Aviation manufacturers rely on defenses, including the reasonableness and care taken in the design and post-sale activities (negligence), state of the art design (negligence and strict liability), and an evaluation of the risk utility analysis. Safety is, of course, a relative concept and, accordingly, inherent risks in a product may be acceptable when paired with mitigation efforts. Jane M. Sigda

References Bass, Lewis, Products Liability Design and Manufacturing Defects (2nd ed. 2016). Congressional Research Service Report, Products Liability: A Legal Overview (2014). Frumer, Louis R. et  al., Products Liability, section 1.2 (2014). Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57 (1963). MacPherson v. Buick Motor Co., 217 NY 382 (1916). Restatement (Third) of Torts: Products Liability (Am. Law Inst. 1997). Uniform Commercial Code, Article 2. Winterbottom v. Wright, 152 Eng. Rep. 402 (Ex. 1842). The text is also found in Prod. Liab. Rep. (CCH) ¶ 4,501.

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126. Public Service Obligations I. Definition and Regulatory Framework By the requirement, set in its Article 15, that “Member States shall not make the operation of intra-Community air services by a Community air carrier subject to any permit or authorization,” Regulation No. 1008/2008 confirms the liberal approach underpinning the European Union’s single air transport market. Whereas prior authorization is the rule in the traditional bilateral regimes – starting with the strict conventional provisions governing designation of airlines – it is outright prohibited under European Union (EU) law. The originality of the internal air transport market is more profound: all the freedoms that may be granted by a State, which are usually the subject of tough negotiations, are granted on a multilateral basis to all air carriers holding a valid operating license. Thus, air services are fully liberalized, albeit only for European carriers, and air services no longer need to depart or arrive in the airline’s “home State.” EU law therefore erected the freedom of the air at the rank of principle, but it nevertheless did not intend to let air transport be governed in its entirety by the laws of the market alone. EU law is indeed driven by an ordoliberal philosophy, which postulates at the same time a free economy and strong public involvement. Public authorities – at EU or national level in accordance with the principle of subsidiarity – intervene either ex ante to define the rules applicable to air transport, or ex post to correct the so-called market failures. This distinguishes the EU single air transport market from other experiences of liberalization since it is not guided by a spirit of deregulation. In other words, Member States can still intervene in the market, in the name of the public interest. Most notably, States have an obvious interest in ensuring territorial continuity and the EU itself is not oblivious of the fact that “the market itself will not deliver an acceptable level of air transport services to given regions within Europe” (COM(2015) 598 final, p. 8). Accordingly, Article 16 of Regulation No. 1008/2008 authorizes Member States to impose public service obligations (PSOs) on routes serving peripheral

regions or with a low volume of traffic “if that link is considered vital for the economic and social development of the region served by the airport.” It is thus a tool to ensure connectivity and accessibility of regions that would become, or stay, isolated if airlines were not given additional incentives to operate on these specific routes. PSO routes are, by definition, not commercially viable, but the reasons for this situation are varied. It can be the consequence of a low population and a limited economic dynamism, thus generating very limited traffic, but it can also arise out of geography alone, most notably regarding islands. In its 2017 interpretative guidelines (Commission Notice – Interpretative guidelines on Regulation (EC) No. 1008/2008 of the European Parliament and of the Council – Public Service Obligations (PSO), 2017/C 194/01), the European Commission counted 179 PSO routes, of which a large number were indeed to and from islands.

II. Classification To accommodate these different situations, PSOs can involve diverse kinds of incentives, i.e., compensations and/or exclusive service concessions, but not necessarily. The European Commission distinguishes the former situation, labeled as “restricted PSO,” from “open PSO,” which can happen if “an air carrier demonstrates its willingness to operate the route without exclusivity and compensation” (Interpretative guidelines on PSO, at p. 4). This derives from the fact that PSO being an exception to EU law’s principles, they are subject to strict conditions to ensure that protectionism is not insidiously reintroduced by Member States. Hence, a Member State desiring to impose PSO on a certain route must first identify its needs and establish “standards of continuity, regularity, pricing or minimum capacity” (Regulation No. 1008/2008, Article 16(1)). It must thus demonstrate that it intends only to guarantee connectivity through one or more scheduled air transport services at affordable prices and with sufficient capacity to satisfy the requirements of cohesion and territorial continuity. The envisaged PSO must be communicated to the European Commission, which will then publish a notice in the Official Journal of the European Union (Regulation No. 1008/2008, Article 16(4)). This procedural requirement is required to ensure transparency and facilitate the control exercised by the European

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public service obligations  435 Commission, most notably regarding the necessity and the proportionality of the PSO. It is also mandated so as to inform airlines about the conditions imposed on these routes: airlines meeting all the requirements of the PSO, and willing to operate on this route, can do so (Regulation No. 1008/2008, Article 16(7) and (8)) without necessarily receiving compensation or exclusive rights (“open PSO”). It can be inferred that the standards of continuity, regularity, pricing, and capacity would in any case dissuade a majority of airlines from operating on a route that is normally not profitable, but it is important to note that EU Regulation No. 1008/2008 does not automatically link PSO with subsidies or exclusive rights. The latter are the so-called restricted PSOs, governed by Article 16(9) of Regulation No. 1008/2008. This provision allows Member States to limit the access to a particular route to a single carrier for a period of four years, or even five years in the case of the outermost regions, so that the exclusivity thus conferred compensates for the low intrinsic profitability of the route concerned.

III. Tendering Procedure and Compensation Such exclusivity may be granted only after a tendering procedure, described at Article 17 of the Regulation. The invitation to tender shall be published through a notice in the Official Journal of the European Union, including information relating to the Member State and the route in question, the period of validity of the contract, the deadline for the submission of the tender, and the address where interested undertakings can find all relevant information. This publication serves one main purpose, that is, to avoid national carriers to be directly or indirectly favored. Indeed, even if PSO are restricted to national routes, this does not imply that only national carriers are eligible. In doing so, Regulation No. 1008/2008 guarantees that no discrimination on the basis of nationality can affect the allocation procedure. This is guaranteed at a procedural level by the obligation, laid out in Article 17(9) of Regulation No. 1008/2008, to notify the Commission of the result of the public tender and include information on the different tenderers as well as the compensation that they requested in their offers. It is obvious that the amount of compensation alone should not be the only factor

determining the choice made by a Member States. It is, however, clear that it can be a strong clue when trying to identify favoritism, should a Member State choose a national carrier requesting a higher compensation than the other tenderers for a similar service. The compensation in itself will have, in any case, to comply with the general rules of the Treaty and, most particularly, the rules on State aid. Article 93 TFEU confirms, however, that aids that “represent reimbursement for the discharge of certain obligations inherent in the concept of a public service” are compatible with the treaties. The same derives from Article 106(2) TFEU, as PSO can also be considered as services of general economic interest. In its famous Altmark case (ECJ, 4 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, Case C-280/00, ECR 2003 p. I-7747), the European Court of Justice held that PSO does not constitute State aid if several criteria are met. According to the European Commission: The provisions of Regulation No 1008/2008 have been modelled on the criteria mentioned above: Article 17(3)(a) covers the first Altmark criterion, Article 17(3)(e) the second, Article 17(8) the third and, with regard to the fourth Altmark criterion, Article 16(10) provides for the use of a tender procedure. While Article 16(10) does not further qualify the tender procedure, according to the ruling in Altmark, the procedure chosen should lead to the provision of the service at the least cost to the community. […] This means that if the conditions of Regulation No 1008/2008 are complied with, in light of the explanations given above, it can in principle be considered that there is no State aid. (Interpretative guidelines on PSO, at p. 19)

In any case, the amount of the compensation must be strictly limited to compensating the costs incurred in discharging the PSO and allowing the carrier to generate a reasonable profit (Regulation No. 1008/2008, Article 17(8)) because overcompensation would amount to direct subsidization of the selected air carrier.

IV. Concluding Remarks A Public Service Obligation is an obligation imposed on an organization by legislation or contract to provide a service of general interest within EU territories. They are subjected to EU awarding procedures and they may or vincent correia

436  elgar concise encyclopedia of aviation law may not result in compensation for the operators entrusted with the assigned routes under the relevant procedures. Vincent Correia

References Jakub Kociubinski, “Public Service Obligations in the Air Transport Sector in the European Union”, Polish Review of

vincent correia

International and European Law, vol. 2, Issue 2 (2013), pp. 81–104. Jose Manuel Martin Osante, “Cohesión territorial y transporte aéreo en España”, Cuadernos de Derecho Transnacional, vol. 12, Issue 2 (2020), pp. 527–545. Ulrich Schulte-Strathaus, “Is the European Commission Fulfilling its Ambitious Aviation Strategy?”, Air and Space Law, vol. 42, Issue 6 (2017), pp. 517–541.

127. Repossession of Aircraft I. Context of Aircraft Repossession The repossession of aircraft in general terms can be described as the recovery of the physical possession and control of an aircraft by its owner that has been put under the possession of another party, most commonly the lessee and/or the operator of the same. The subject of aircraft repossession is closely linked with, and relevant in, aircraft financing and leasing transactions, in which typically the owner of the aircraft, often assuming the capacity of creditor or lessor, is different from the operator of the aircraft, often assuming the capacity of debtor or lessee. From the legal point of view, repossession of aircraft principally resembles the repossession route for other assets of the pertinent debtor. On the other hand, however, aircraft repossession involves further challenges and risks due to the value and particular maintenance needs of aircraft objects and the involvement of third parties, including local authorities, such as the relevant civil aviation authority and other entities as per applicable local laws; as well as airport, hangar, and safety personnel. An aircraft repossession most commonly become an issue in case of events of default under aircraft lease or mortgage arrangements. While international law rules exist on repossession, the repossession procedure that will be applicable to the aircraft will ultimately depend on the local laws and regulations of the States, provided such States have ratified the relevant international instrument, which duly and effectively implement such international repossession provisions and determine procedural issues, such as statutory or contractual notice requirements or payable fees and taxes. Therefore, each repossession incident will be different according to the jurisdiction of the location and the State of registration of such aircraft and the particulars of the underlying contractual arrangements of the aircraft transaction.

II. Repossession Procedure Subject to the regulations and practices of the jurisdiction in which the aircraft is located or registered, which will determine the

involvement of courts or other authorities, such as the civil aviation authority, as well as relevant execution offices, aircraft repossession actions usually include the issuance of notices of default, termination of the existing contractual relationship among its parties, and grounding in relation to the aircraft. Then, the seizure of the aircraft, its deregistration, as well as access to the relevant original documents relating to the aircraft, such as logbooks and flight and maintenance records and manuals, and finally exporting the same form to the State of registration. Voluntary relinquishment of the logbooks of the aircraft is of particular significance in repossession procedures due to the highly regulated nature of the aviation industry for safety considerations and the importance of such documentation for the future management of the aircraft.

III. Repossession as a Remedy in Aircraft Financing Given the international nature of the aviation industry and the mobility of aircraft assets, the availability of effective and prompt repossession remedies in the State of registration is crucial to cross-border aircraft financing. The core purpose and significant advantage of the Convention on International Interests in Mobile Equipment (the “Convention”) and the related Protocol to the Convention on Matters Specific to Aircraft Equipment (the “Protocol”), which entered into force on 1 March 2006, and is commonly known as the “Cape Town Convention,” are the remedies provided therein in relation to the speedy repossession of aircraft in a default scenario in aircraft finance or leasing transactions. The existence and implementation of such efficient repossession remedies in a State of registration has advantages in the raising of finance for cross-border aircraft transactions, which is in the interest of both creditor and debtor parties in aircraft financing and leasing deals. The international framework provided for with the Convention and the Protocol serve to harmonize and overcome the challenges arising from the private laws of different States, which can often render the repossession of aircraft a lengthy and cumbersome exercise. Despite clear provisions on efficient remedies pertaining to defaults in aircraft finance and leasing transactions in the Cape Town Convention, effective implementation of the Cape Town Convention’s provisions on repossession depends on the practice and local laws

437

438  elgar concise encyclopedia of aviation law of the contracting States. The enhanced need to ensure that aircraft repossession is conducted and finalized in a smooth and timely manner is due to the rapid deterioration of aircraft assets in the absence of regular maintenance and protection measures required almost on a daily basis. The standard remedies available to creditors in aircraft finance and leasing transactions under the Convention and the Protocol regarding repossession are non-judicial remedies, relief pending final determination and the deregistration and export via a deregistration and export request authorization. Pursuant to the self-help remedies provided for in the Cape Town Convention, the applicability of which in the individual contracting States will depend on a State’s prior declaration as to the applicability of such self-help remedies in its jurisdiction, aircraft owners, financiers, or lessors may be empowered, if so agreed, to repossess, sell, or lease the aircraft without the need for any judicial intervention. An additional remedy stipulated in the Cape Town Convention serves to ensure a speedy relief for an aircraft owner, financier, or lessor pending final determination by a court and allows the judge to order, inter alia, the repossession, control, or custody of an aircraft. Such remedy resembles interim measures to avoid any loss or damage to an aircraft pending final determination by a court in relation to a given dispute between the creditor and the debtor.

IV. IDERA In addition to the right of creditors to ensure the deregistration and repossession of an aircraft in accordance with local substantive and procedural rules, the Cape Town Convention also provides for the issuance of an irrevocable deregistration and export request authorization, commonly referred to in short as an IDERA, by the debtor, which grants the authorized party named in such IDERA form the right to request the deregistration and export of an aircraft from the local civil aviation authority. As such, the IDERA constitutes a standing instruction addressed to, and registered by, the relevant civil aviation authority of the aircraft’s location and State

serap zuvin and i̇ l ke işin süer

of registration to honor the request of such authorized party regarding the deregistration and export of the relevant aircraft. Once the IDERA is duly issued in accordance with the Protocol and lodged and filed with the relevant civil aviation authority, such authority will be obliged to promptly coordinate and effect, in accordance with applicable aviation safety rules, the deregistration and repossession of the aircraft through its export, without the need for a separate court order or any discretionary powers. The issuance of the IDERA documentation constitutes a common element of most cross-border aircraft financing and leasing transactions. Serap Zuvin and İlke Işın Süer

References The Cape Town Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (adopted 16 November 2001, entered into force 1 March 2006) 2307 U.N.T.S. 285. Dean N Gerber and David R Walton, ‘De-registration and Export Remedies under the Cape Town Convention’ (2014), Cape Town Convention Journal, 3:1, 49– 68, DOI:10.5235/204976114814222485 accessed 27 April 2022. Donald Gray, Jason MacIntyre and Jeffrey Wool, ‘The Interaction between Cape Town Convention Repossession Remedies and Local Procedural Law: A Civil Law Case Study’ (2015), Cape Town Convention Journal, 4:1, 17–52, DOI:10 .1080/2049761X.2015.1108012   accessed 27 April 2022. INSOL International, ‘Aircraft Repossession Upon a Default – A Review of the Issues in the United Kingdom, USA, India and Nigeria’ (2019), Technical Paper Series No 45 accessed 29 April 2022.

128. The Rome Convention (1952) on Damage Caused by Foreign Aircraft to Third Parties on the Surface

The persons suffering the surface damage may benefit from certain direct actions against the insurers such as in case of bankruptcy of the aircraft operator. This applies without prejudice to these persons’ rights of direct action under applicable local laws chosen in the insurance contracts. Sums due to an aircraft operator from an insurer are exempt from seizure and execution by the operator’s creditors until the claims covered by the Convention have been satisfied.

At the same time the Rome Convention protects the aircraft operators:

I. Attempts at Unification

Certain defenses have been explicitly provided for: where it is evidenced that the damage was caused solely through the negligence or other wrongful act or omission of the person who suffers the damage or of the latter’s servants or agents acting within the scope of that person’s authority, the operator’s liability will be inexistent or it will be reduced if such wrongful act or omission has contributed to the damage.

1. Need for Uniform Protection of Third-party Rights as well as for Uniform Aircraft Operators’ Liabilities After a failed attempt to unify liability regimes in relation to surface damage caused by foreign aircraft with the Rome Convention of 1933, the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface was signed in Rome on 7 October 1952 and entered into force on 4 February 1958. The Convention is referred to as the “Rome Convention.” Also, the Rome Convention remains “an attempt” at unification, given the low rate of ratifications. In several countries national liability regimes continue to apply to surface damage by foreign aircraft, instead of the Convention. This is notwithstanding the fact that the Rome Convention aims to protect the victims on the ground, while at the same time providing legal certainty to aircraft operators. With the Rome Convention, the persons suffering damage on the ground are protected in different ways: A regime of absolute liability of the aircraft operator is provided for, which avoids for the victims the difficulty of having to prove fault or negligence of the operator or other involved parties. They must evidence the damage and that it was directly caused by an incident with an aircraft in flight or by a person or thing falling therefrom. (Damage caused before takeoff or after landing is not covered by the Rome Convention, neither is damage resulting from “the mere fact of passage” of the aircraft through the airspace, in conformity with air traffic rules.) The registered owner is presumed to be the operator; he will be liable unless he proves that another person was the operator and takes measures to bring such person into the proceedings.

Except for deliberate acts or omissions with the intent to cause damage, no other liability regime shall apply to the aircraft operators; they can be certain that their liability is limited to the liability expressly provided for under the Convention, while they retain their rights of recourse against any other persons. The liability of the aircraft operator is limited to the amounts mentioned in the Convention, except where the person suffering damage proves that it was caused by a deliberate act or omission of the operator, his servants or agents, in which case the operator’s liability is unlimited. The limits are linked to the aircraft’s weight (which is being debated, since the damage caused by light aircraft can be as substantial or even more, depending on the circumstances, than damage caused by heavy aircraft). The limits are expressed in “francs,” the franc being defined as a currency unit of 65.5 milligrams of gold of millesimal fineness 900. Actions are subject to a limitation period of two years from the date of the incident that has caused the damage. The grounds for suspension or interruption are governed by the law of the court trying the action but in any case the right to institute an action extinguishes on the expiration of three years from the date of the incident.

The Rome Convention provides for jurisdiction of the courts of the contracting State where the damage occurred, leaving open a possibility for the parties to agree on jurisdiction of the courts from another contracting State, or on arbitration.

439

440  elgar concise encyclopedia of aviation law The single forum aims at protecting the liability limitations: in case of different claims flowing from an incident, it may be necessary to reduce the claims in order not to exceed the liability limits, which is best dealt with by only one court to be certain that the limits are respected. With the drafting of the Rome Convention, it was considered that “an operator engaging in air navigation within the territory of a certain State and making use of that State’s air navigation facilities, accepts the protection of the law of that State” so that it was said to be reasonable that the operator is subject to the jurisdiction of the courts of that same State. Although the Rome Convention certainly has its merits, the low ratification rate has undermined the effect that is sought. The Convention indeed applies to damage caused only in the territory of a contracting State by an aircraft registered in the territory of another contracting State. Outside these occurrences involving contracting States, the national liability regimes of the individual States continue to apply. Equally, where damage is caused by an aircraft registered in the same State as the State where the damage occurs, the liabilities are governed by the national laws of that State, not by the Convention. When the Rome Convention was drafted, the fundamental discussion points were solved through majority voting and not through a genuine compromise: this would explain the Convention’s failure to unify national liability regimes. The discussion points were: (1) the choice between absolute liability and fault liability, (2) the limits of liability, (3) the wish to maintain national control over securities, hence over insurance for operator’s liability, and (4) the single forum. It is indeed generally considered today that the reasons for the Convention’s failure are: (1) too low a liability limitation; (2) the fact that the application of the national liability regimes is sufficiently adequate; (3) the fact that the Convention does not deal with problems, such as damage flowing from noise, from sonic boom, or from nuclear damage; (4) the single forum. Further attempts have been made to resolve some of these issues.

II. Further Attempts at Unification An attempt to solve the issues was made with a revision through a Protocol, adopted at Montreal in 1978, referred to as “the catherine erkelens

Montreal Protocol,” which entered into force on 25 July 2002. The Montreal Protocol expanded the applicability of the Rome Convention to damage caused by an aircraft “whatever its registration may be,” whose operator has his/her principal place of business or, if he/she has no such place of business, his/her permanent place of residence in another contracting State. The Protocol has substantially increased the amounts of liability limitation, thereby referring to Special Drawing Rights (SDRs) instead of francs, with a review by reference to an inflation factor. Some States, however, continue to consider these limits as too low. The limits are still linked to the aircraft’s weight (the maximum permissible takeoff weight). The low ratification rate of the Montreal Protocol, although it has entered into force, has undermined its effect.

III. A Need for Modernization ICAO continued to work on the possible modernization of the Rome Convention, and after the “9/11” attacks of 2001 it launched a consultation thereto. This led to a draft of a new “Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface,” which resulted in two Conventions adopted at Montreal in May 2009: The Convention on Compensation for Damage Caused by Aircraft to Third Parties, referred to as “the General Risks Convention,” which in its preamble confirms “the importance of ensuring the protection of the interests of third-party victims and the need for equitable compensation, as well as the need to enable the continued stability of the aviation industry.” The Convention mentions “collective State action” as “the most desirable and effective means of achieving an equitable balance of interests.” The Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference involving Aircraft, is referred to as “the Unlawful Interference Convention,” which was complemented by “a Supplementary Compensation Mechanism.” This Convention, covering compensation for the consequences of events of unlawful interference, aims at transforming the Rome Convention from a liability reform instrument into a compensation fund mechanism. The reason was that “a terrorist attack could produce an ‘unbounded’ event beyond the capacity of the insurance market or at least not insurable at

the rome convention (1952)  441 an economic cost.” It considers “the need for a coordinated and concerted approach to providing compensation to third-party victims.”

The General Risk Convention and the Unlawful Interference Convention also failed to attain the effect that was hoped for, with a ratification rate that has remained too low for them to enter into force.

IV. Evolution Meanwhile, national liability regimes in relation to surface damage continue to evolve and a number of States consider this as being sufficient given that national laws mostly allow insurance coverage for the liability levels as limited under national law. Reference can be made to the European Union (EU) regulations, which, rather than imposing a common EU liability regime for third-party damage by aircraft, have introduced a system of insurance requirements, which is considered as adequate.

V. Applicability to Drones In recent years the question has arisen whether the Rome Convention applies to damage on the territory of a contracting State caused by a drone. Although the term “aircraft” is not defined in the Rome Convention, it is generally accepted that drones are “aircraft operated or designed to be operated without a pilot onboard,” thus, that they are “aircraft” as under the Chicago Convention. The Rome Convention may thus apply in case a drone registered in a contracting State crashes in another Contracting State, but those occurrences remain limited. Moreover, military, customs, and police aircraft are excluded from the application of the Rome Convention, which constitute a substantial part of drone uses. The Rome Convention does not apply to damage resulting from the mere fact of passage of the drone nor does it apply to damage that is not a direct consequence of the incident giving rise thereto. Hence, damage arising from drone operations in the nature of “a nuisance” or damage caused by noise is eliminated. Such is the case for other aircraft, only the damage flowing from the drone, or parts of the drone, falling down or hitting an object is covered (“contact damage”).

VI. Conclusion When the Rome Convention was drafted, a need for unification of the national liability regimes was felt. After the 9/11 attacks, action was taken internationally mainly because of the need for uniform and additional insurance. Meanwhile, rules on insurance requirements are widely applied, such as in the EU, and it seems that this answers the need for harmonization. Most States prefer, in combination with these insurance requirements, to continue to rely on their local liability regimes for setting the third-party compensation. Harmonizing existing private law liability regimes is a difficult exercise, entailing a risk that touches on fundamental rights of defense as locally provided for. To the extent that the evolution of law, and litigation, shows that the need for unification of liability regimes no longer exists, the question can be asked: should the approach under the Rome Convention be abandoned, with use of insurance requirements as the alternative? Some States did denounce their ratifications of the Rome Convention. Is it to be expected that the number of contracting States in the future will decrease rather than increase? Catherine Erkelens

References Kean Arnold (ed.), Essays in Air Law, Martinus Nijhoff Publishers (1982). Convention on International Civil Aviation, Chicago, 7 December 1944, definition in Annex 7 as completed by ICAO on 6 November 1967. EASA, Technical Opinion, Introduction of a Regulatory Framework for the Operation of Unmanned Aircraft, 18 December 2015. Rinck Gerd, Damage Caused by Foreign Aircraft to Third Parties, 28 J. Air and Com. 405 (1962). ICAO Doc. 7157 LC 130. ICAO Manual on RPAS, Doc. 11019, AN/507. ICAO Working Paper, LC/33 -WP /3-3, 1/4/08. ICAO Working Paper LC/33-WP/3-3, Report of the Rapporteur (2008). International Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to Third Parties on the Surface, Rome, 29 May 1933, and its Brussels Insurance Protocol signed at Brussels, 29 September 1938. catherine erkelens

442  elgar concise encyclopedia of aviation law A.J. Mauritz, Liability of the Operators and Owners of Aircraft for Damage Inflicted to Persons and Property on the Surface, PhD thesis, University of Leiden (2003). Pablo Mendes de Leon, Introduction to Air Law, Wolters Kluwer (2017). Milde Michael, Liability for Damage Caused by Aircraft on the Surface – Past and Current Efforts to Unify the Law, 57 Z.L.W. 532 (2008). Calkins G. Nathan Jr., Principles and Extent of Liability under the Revision of the Rome

catherine erkelens

Convention Proposed by the ICAO Legal Committee, 17 J. Air L. and Com. 151 (1950). Regulation (EU) n° 785/2004 of the European Parliament and the Council of 21 April 2004, as amended. A. Toepper, Comments on Article 20 of the Rome Convention of 1952, 21 J. Air L. and Com. 4 (1954).

129. Rules of the Air

established International Commission for Air Navigation (ICAN) (Milde [2016]). However, the 1919 Paris Convention did not reach universal acceptance. Other two attempts were I. Definition and Origins of the the 1926 Ibero-American Air Navigation Convention (the so-called 1926 Madrid Rules of the Air Convention) and the 1928 Convention on Rules of the air can be described as standards Commercial Aviation (also known as the relating to the aeronautical uses of the air 1928 Havana Convention), which had insufspace by aircraft in flight or on the movement ficient success. area of an aerodrome within General Air It was only in 1944, following the further Traffic (GAT), for safety and security reasons technological development of aviation, that, (ICAO 2011, para 5.1, p. 15). They can have among the Allied Powers’ activities that would international, regional (e.g., European Union lead to the Charter of the United Nations [EU]), or domestic origin. and were meant to settle postwar arrangeRegulation of the aeronautical uses of the air ments and reconstruction, from 1 November space is quite recent, if compared to other legal to 7 December 1944 the International Civil disciplines: the first manned flights date back Aviation Conference took place in Chicago. to the second half of the 17th century (Milde The Conference’s main outcome was the [2016]). However, it was only at the beginning Convention on International Civil Aviation, of the 20th century, following an intensification signed at Chicago on 7 December 1944, of flights with balloons, mainly for military rea- (henceforth referred to as the Chicago sons, that the need to provide a legal discipline Convention). It entered into force on 4 April for air flights and, in particular, for the transit 1947 and currently (2022) has 193 parties. across foreign air space and landing in terriFor the sake of completeness, its Article tories of other States, emerged (Milde[2016]; 12.1 provides for each contracting State’s Lobianco [2009]; Masutti [2020]). duty “to adopt measures to insure that every On 8 May and 28 June 1910, the Paris aircraft flying over or manoeuvring within International Air Navigation Conference its territory and that every aircraft carrying took place. Its aim was to provide the first its nationality mark (…) shall comply with international principles to which air naviga- the rules and regulations relating to the flight tion should conform. In particular, the main and manoeuvre of aircraft there in force.” issue was the legal status of air space and Symmetrically, all aircraft have therefore to the dichotomy between national sovereignty observe the rules of the air of the State where over it and freedom of the air. However, the they operate. For this purpose, the last paraconference did not lead to any international graph of Article 12 expressly establishes the convention. Nevertheless, it is considered an contracting States’ commitment “to insure the important milestone in the sector for many prosecution of all persons violating the regureasons, among which the delegates’ agree- lations applicable.” Accordingly, the power to ment on basic rules of the air (Cooper [1952]; establish rules of the air within its air space Correia [2019]). and territory lies within the power of each Nine years later, the main issues identified State as a consequence of its sovereignty over during the 1910 conference, including rules them, pursuant to Article 1 of the Convention. of the air, served as the basis of the commitHowever, the maximum level of uniformity ment to prepare a convention on international of the rules of the air was deemed important aerial navigation in peacetime, entrusted to for the sake of safety and security of air navithe Inter-Allied Aeronautical Commission gation. As a consequence, under Article 12.2 during the 1919 Paris Peace Conference, fol- of the Chicago Convention, “each contracting lowing World War I. On 13 October 1919, State undertakes to keep its own regulations the Convention Relating to the Regulation in these respects uniform, to the greatest posof Aerial Navigation (henceforth referred sible extent, with those established from time to as the Paris Convention) was signed by to time under [the] Convention.” The high 26 States. As for rules of the air, it is notewor- seas do not fall within any State jurisdiction, thy that one of the seven Annexes to the Paris therefore, according to Article 12.3, “the rules Convention was devoted to them. According in force shall be those established under this to the Paris Convention, these annexes had its Convention.” Nonetheless, as it was specified same force and had to be updated by the newly by ICAO’s Council in 15 November 1972 on 443

444  elgar concise encyclopedia of aviation law the occasion of the adoption of Amendment 14 to Annex 2, relating to the authority over aircraft when operating over the high seas, this does not affect Registry States’ legal jurisdiction over their aircraft or contracting States’ responsibility for enforcing rules of the air in compliance with Article 12 of the Chicago Convention (ICAO 2005, p. v). Furthermore, in accordance with the abovementioned provisions, Article 37 imposes on each contracting State “to collaborate in securing the highest practicable degree of uniformity in regulations, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters which such uniformity will facilitate and improve air navigation” (La Torre [2015]). Article 12.2 refers to Annex 2 adopted by the Council of ICAO (Milde [2016]). The International Civil Aviation Organization (ICAO), established by the Chicago Convention, aims, among other objectives, “to develop the principles and techniques of air navigation” (Article 44). With regard to the rules of the air, Article 37.2 provides that, for the purpose evidenced in the first paragraph, “the International Civil Aviation Organization shall adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures dealing with: (…) c) Rules of the air and air traffic control practices.” The following article relates to States wishing to depart from the international standards and procedures laid down by ICAO because they consider it “impracticable to comply [with them] in all respects” or deem “it necessary to adopt regulations or practices differing in any particular respect,” to notify ICAO. Each aircraft bearing the nationality and registration mark of a contracting State must comply with the rules of the air issued by ICAO insofar as they do not contrast with the domestic ones applicable to the State having jurisdiction over the territory overflown (Abeyratne [2019]). In particular, the responsibility to comply with the applicable rules of the air belongs to the pilot-in-command of the aircraft. He/she can depart from them only in case of absolute necessity for safety issues (Abeyratne [2019]).

II. ICAO’s Annex 2 – Rules of the Air The rules of the air drawn up pursuant to the Chicago Convention are contained in Annex elena orrù

2. It consists of only standards without any recommended practice (Milde [2016]). In particular, the annex includes general rules, Visual Flight Rules, and Instrument Flight Rules (Weber [2015]). Following the abovementioned Article 12.2–3 of the Chicago Convention, ICAO is the “sole ‘legislator’ of the rules of the air over the high seas” (Milde [2016]), whereas the rules of the air included in Annex 2 apply over national territories insofar as they conform with those enacted by the single State. In October 1945, during its first session, the Rules of the Air and Air Traffic Control (RAC) Division, within the Provisional International Civil Aviation Organization (PICAO), formulated recommendations for standards, practices, and procedures for the rules of the air. These recommendations were reviewed by the Air Navigation Committee and adopted by the Council on 25 February 1946 as “Recommendations for Standards, Practices and Procedures – Rules of the Air.” In December–January 1947, the RAC Division reconsidered its recommendations, amended them, and proposed “Standards and Recommended Practices for the Rules of the Air.” The Council enacted them as Annex 2 in April 1948 and it became effective on 15 September 1948. It was amended for the first time in November 1951: it consisted only of standards, without any more recommended practice (ICAO 2005, p. v). The current version is the tenth, adopted in July 2005. Afterward, the Annex was amended nine times: the last amendment is the 47th, which was adopted by the Council on 21 March 2021 and will become applicable on 26 November 2026. The standards contained in Annex 2, together with Annex 11 – Air Traffic Services (ICAO, fifteenth edn, July 2018), are complemented by the Procedures for Air Navigation Services – Air Traffic Management (PANS-ATM) (ICAO Doc 4444, 16th edn, 2016) and to the Regional Supplementary Procedures (SUPPS) (ICAO Doc 7030, 5th edn, 2008). Under Article 54, the task of adopting international Standards and Recommended Practices (SARPS) is entrusted to ICAO’s Council. As for the process leading to the adoption of new or revised SARPS, the initiative can be undertaken by ICAO’s Air Navigation Commission (ANC), pursuant to Article 57, let. a) of the Chicago Convention, or by a contracting State. In the latter case, the

rules of the air  445 proposals are examined by the ANC before being submitted to the Council.

III. The Standardized European Rules of the Air (SERA) The EU Commission Implementing Regulation (EU) No. 923/2012 of 26 September 2012 laying down the common rules of the air and operational provisions regarding services and procedures in air navigation and amending Implementing Regulation (EU) No. 1035/2011 and Regulations (EC) No. 1265/2007, (EC) No. 1794/2006, (EC) No. 730/2006, (EC) No. 1033/2006, and (EU) No. 255/2010 (also known as “SERA Regulation”), has as its purpose “to establish the common rules of the air and operational provisions regarding services and procedures in air navigation that shall be applicable to general air traffic within the scope of Regulation (EC) No 551/2004.” It falls within the Single European Sky, created in 2004, and the subsequent Single European Sky II, approved in 2009 (Masutti [2020]). The SERA Regulation establishes the Single European Rules of the Air (SERA) and is aimed to consolidate, in its Annex, the Rules of the Air included in ICAO’s Annex 2, along with some parts of Annexes 3 and 11, in order to make uniform rules of the air and overcome the differences that continue to be found among domestic rules. Furthermore, it is noteworthy that SERA applies also to Air Navigation Service Providers and aerodrome operators and ground personnel engaged in aircraft operations (Article 1.3) (La Torre [2015]). The SERA Regulation has applied from 4 December 2012, but Member States were granted the opportunity to exclude its application until 4 December 2014. The SERA Regulation does not limit its scope to European Union territory, since it applies “to airspace users and aircraft engaged in general air traffic: (a) operating into, within or out of the Union; (b) bearing the nationality and registration marks of a Member State of the Union, and operating in any airspace to the extent that they do not conflict with the rules published by the country having jurisdiction over the territory overflown” (Article 1).” It does not apply to model aircraft and toy aircraft.

The Regulation requires Member States, further to its entry into force and at the latest by the date of its applicability, to: (a) “(a) formally notify ICAO that all previously notified differences with respect to ICAO Standards and recommended practices that are covered by [the] Regulation are withdrawn, with the exception of those relating to essential security and defence policy interests of the Member States in accordance with Article 13 of Regulation (EC) No 549/2004; (b) notify ICAO of the commonly agreed differences contained in the supplement to the Annex to [the] Regulation” (Article 5). As a consequence of the regime implemented by the SERA Regulation, under Article 6, the EU Commission has established, with the support of EUROCONTROL and the European Union Aviation Safety Agency (EASA), a permanent process for ensuring the monitoring and analysis of any relevant amendments adopted under the Chicago Convention’s regime and for drafting proposals for amendments to the Annex to the Regulation.

IV. New Developments The Chicago Convention and hence the rules of the air issued by ICAO’s Council and the latter’s jurisdiction apply only to civil aircraft engaged in general or commercial aviation. Hitherto, despite the need of a uniform regulation for safety reasons (Bourbonniere – Haeck [2001]), there are no international rules of the air clearly applicable to State aircraft, particularly military ones in time of peace. As evidenced by Milde [2016], the few provisions referring to this category of aircraft for this aim have mainly a negative approach, by excluding them from their scope or establishing what they are not allowed to do. Moreover, no uniform customary transparent practices exist because of the very nature of these aircraft and their mission (Bourbonniere – Haeck [2001]; Milde [2016]). Nevertheless, following the 1983 007 Korean Air disaster, ICAO’s Council discussed whether to review the Chicago Convention’s provisions and its Annexes and, in particular, adopt an amendment to Annex 2 meant to include Standards devoted to the interception of civil aircraft by military ones (Milde [2016]). Moreover, in elena orrù

446  elgar concise encyclopedia of aviation law the Annexes to its Resolutions “Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation,” the ICAO Assembly has repeatedly invited the contracting States to conform their State aircraft’s operations to the rules of the air in Annex 2, to the extent practicable, and it has advocated the application of the rules of the air also to State aircraft over the high seas (ICAO 2007). Another challenge consists in the rules of the air applicable to unmanned aircraft (UA). Whereas in the past UA used to fly mostly in segregated airspace, following the increase of their use in recent years and especially the expected growth of their operation in shared airspace, the need to clarify or even to establish the applicable rules of the air has become particularly important. However, a uniform classification and regulation of UA are still lacking. A further matter that calls for attention concerns the current breadth of the possible implementation of artificial intelligence (AI). Several existing provisions of Annex 2 treat personnel: according to some scholars (Abeyratne [2019]), they cannot be replaced by AI, but only supplemented or assisted by it while performing their functions. Elena Orrù

References Ruwantissa Abeyratne, Legal Priorities in Air Transport (Springer, 2019). Air Navigation Committee’s Council, ‘Recommendations for Standards, Practices and Procedures – Rules of the Air’ (25 February 1946). Michel Bourbonniere and Louis Haeck, ‘Military Aircraft and International Law: Chicago Opus 3’, 66 J. Air L. & Com. 885 (2001). Commission Implementing Regulation (EU) No 923/2012 of 26 September 2012 laying down the common rules of the air and operational provisions regarding services and procedures in air navigation and amending Implementing Regulation (EU) No 1035/2011 and Regulations (EC) No 1265/2007, (EC) No 1794/2006, (EC) No 730/2006, (EC) No 1033/2006 and (EU)

elena orrù

No 255/2010, published in the GU L 281, 13 October 2012, 1–66 and subsequently modified. Convention on International Civil Aviation, signed at Chicago on 7 December 1944. Convention Relating to the Regulation of Aerial Navigation, signed at Paris, on 13 October 1919. John Cobb Cooper, ‘The International Air Navigation Conference, Paris 1910’, 19 J. Air L. & Com. 127 (1952). Vincent Correia, ‘The Legacy of the 1919 Paris Convention Relating to the Regulation of Aerial Navigation’ in Pablo Mendes de Leon and Niall Buissing (eds), Behind and Beyond the Chicago Convention: The Evolution of Aerial Sovereignty, 3–23 (Kluwer Law International, 2019). Ibero-American Convention on Air Navigation, signed at Madrid on 1 November 1926. ICAO, Annex 2 – Rules of the Air, tenth edn (July 2005). ICAO, Annex 11 – Air Traffic Services, fifteenth edn (July 2018). ICAO, Assembly’s Resolution A36-13, Appendix O (18–28 September 2007). ICAO, ‘Procedures for Air Navigation Services — Air Traffic Management (PANS-ATM)’, Doc 4444 (16th edn, 2016). ICAO, ‘Regional Supplementary Procedures (SUPPS)’, Doc 7030 (5th edn, 2008). ICAO, ‘Unmanned Aircraft Systems (UAS)’, Cir 328 AN/190 (2011). Umberto La Torre, ‘Aircraft Pilotage’, 2 Il Diritto marittimo 267 (2015). Rocco Lobianco, ‘Le fonti del Diritto aeronautico’ in Rocco Lobianco (ed.), Compendio di diritto aeronautico (Giuffrè editore 2009). Anna Masutti, Il diritto aeronautico (Giappichelli, 2020). Michael Milde, International Air Law and ICAO (Eleven International Publishing, 2016). Panamerican Convention on Commercial Aviation and the Treaty-making Power, signed at Havana, on 20 February 1928. Ludwig Weber, International Civil Aviation Organization (ICAO) (Wolters Kluwer – Law & Business, 2015).

130. Sabotage of Aircraft I. Introduction – Unsolved Problems of Unlawful Interferences Sabotage of aircraft is often understood only as an act of unlawful interferences against international civil aviation. At the international level, security measures of the International Civil Aviation Organization (ICAO) are developed and implemented by Member States of ICAO, as contained in Annex 17 to the Convention of International Civil Aviation, hereinafter the “Chicago Convention (1944).” However, sabotage of aircraft is a specific type of unlawful threat. As Huang states, it “very often” involves explosives onboard aircraft. In this sense, sabotage can be understood as an extended form of air piracy, but it is clearly different. If air piracy is closer to hijacking, where the control is taken by the offenders driven by political and private motives, sabotage of aircraft involves destruction of aircraft or facilities, using bombs, and endangering the safety of aircraft. For this specific type of threat, not only the security measures of ICAO, but also international conventions are applicable. Such an action constitutes disruptive and unruly behavior. According to Article 1 of the Convention on Offences and Certain Other Acts Committed on Board Aircraft of 1963, hereinafter the Tokyo Convention (1963), amended by the Montreal Protocol (2014), if sabotage is an offense against the penal law of a State, and/or it may or does clearly jeopardize the safety of the aircraft or of persons or property therein or which jeopardize good order and discipline onboard the aircraft, saboteurs may be regulated by the Tokyo Convention (1963). Also, sabotage of aircraft could be covered by the Convention for the Suppression of Unlawful Seizure of Aircraft, hereinafter the Hague Convention (1970), according to Article 1 of the Hague Convention (1970) that any person onboard an aircraft intimidating, seizing, or exercising control of aircraft unlawfully or using force or threat falls under the scope of the Hague Convention (1970). However, as discussed in the Section on “Unruly Passengers” and “Air Piracy and Crime,” these Conventions

did not intend to cover specifically sabotage of aircraft. Instead, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, hereinafter the Montreal “Sabotage” Convention (1971) is the applicable convention for these events.

II. Legal Framework 1. Montreal “Sabotage” Convention of 1971 Saboteurs should not be free from punishment. The Montreal “Sabotage” Convention (1971) was drafted to address the issue of sabotage of aircraft directly in order to properly punish saboteurs. Article 3 of the Montreal “Sabotage” Convention (1971) obliges contracting States to mandate the sabotage of aircraft “punishable by severe penalties.” The acts of sabotage, which US law also refers to, are listed under Article 1 of the Montreal Convention (1971) as following: Article 1 (1) Any person commits an offence if he unlawfully and intentionally: (a) performs an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft; or (b) destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or (c) places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight; or (d) destroys or damages air navigation facilities or interferes with their operation, if any such act is likely to endanger the safety of aircraft in flight; or (e) communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight.

This expanded list of acts that are considered international crimes is contained only in the Montreal “Sabotage” Convention (1971), but not the other aforementioned international Conventions, such as the Tokyo Convention (1963) amended by the Montreal Protocol (2014) or the Hague Convention (1970), as amended by the Beijing Protocol of 2010, that deal with unruly passengers and types of acts of unlawful interference other than sabotage.

447

448  elgar concise encyclopedia of aviation law As pointed out by Mendes de Leon and Milde, there are also other several features only the Montreal “Sabotage” Convention (1971) possesses. First of all, to be covered by the Montreal “Sabotage” Convention (1971), an act must be likely to endanger the safety of aircraft as phrased in Article 1. Otherwise the person can be released unpunished. An example given by Mendes de Leon is a false threat on a bomb attack. If the false threat causes “only delay” but no damage, then the acts are not covered by the Montreal “Sabotage” Convention (1971). Secondly, the Montreal “Sabotage” Convention (1971) considers any destruction to or damage to air navigation facilities or aerodrome as an offense if it is likely to endanger the safety of aircraft in flight. In other words, in a strict sense, if the attack at an airport does endanger the persons and properties on ground, but not the aircraft that is currently in flight, this attack is not considered an offense under the Montreal “Sabotage” Convention (1971). 2. Legal Loopholes of the Montreal “Sabotage” Convention (1971) – Lockerbie Case As briefly pointed out, certain acts might not be considered as an offense, but the conclusion of the Montreal “Sabotage” Convention (1971) did not mean that the struggle to combat sabotage of aircraft had ended. The Lockerbie case on 21 December 1988, which involved the explosion of a Pan American Airlines aircraft over Lockerbie, Scotland, and caused fatalities both onboard and on the ground, exemplifies the international civil aviation’s continuing efforts to tackle the issue of sabotage of aircraft, especially in terms of the obligation to prosecute and extradite. In principle, because the destruction of the aircraft was caused by a bomb placed onboard the aircraft, this case falls under the scope of the Montreal “Sabotage” Convention (1971). As the alleged perpetrators were permanently residing in Libya, Libya took the necessary measures, which was then “to submit the case to its competent authorities for the purpose of prosecution,” as obliged under Article 7 of the Montreal “Sabotage” Convention (1971). In the proceedings in the International Court of Justice (ICJ) initiated by Libya in 1991, Libya claimed the exclusivity of the Montreal “Sabotage” Convention (1971), over Security Council Resolutions that ultimately jinyoung choi

demanded disclosure of “all it knows of” the incident as presented in the ICJ Report published in 1992, and that imposed sanctions on Libya for not “effectively” responding to the request. The United Kingdom and the United States brought arguments that the ICJ did not have jurisdiction over this case as the Security Council Resolutions are binding under Article 25 of the Charter of the United Nations (UN Charter), which states that “the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter” and Article 103 of the Charter that states “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” While the ICJ chose to exercise its jurisdiction in analyzing the applicability of the Montreal “Sabotage” Convention (1971), Huang stated that this case constituted an example showing deficiencies of the specific legal framework in terms of ensuring punishment of saboteurs. As Libya claimed, the Montreal “Sabotage” Convention (1971) obliges contracting States with jurisdiction established to submit the case to the competent authorities, but further actions are not stipulated as binding contracting States. 3. Adoption of the Montreal (MEX) Convention (1991) While the Montreal “Sabotage” Convention mentions sabotage only after the incidents (1971) have happened, there is another Convention that aims to address that gap. That is the Convention on the Marking of Plastic Explosives for the Purpose of Detection, hereinafter the “MEX Convention (1991).” The MEX Convention (1991) obliges contracting States to prohibit and prevent the manufacture of plastic explosives within their territories unless the product is properly marked to define its detectability. Movement of plastic explosives is also prohibited, unless properly marked to enhance detectability. 4. Continuing Efforts to Suppress the Sabotage of Aircraft and the Beijing Convention (2010) Next to the adoption of the MEX Convention (1991), with its purpose to “replace” the

sabotage of aircraft  449 Montreal “Sabotage” Convention (1971), the Convention on the Suppression of Unlawful Acts relating to International Civil Aviation, hereinafter the “Beijing Convention (2010),” was adopted in Beijing, China, on 10 September 2010. Contracting States of the Beijing Convention (2010) are required to criminalize unlawful transportation of explosives and other dangerous goods and to criminalize certain other acts, such as use of the aircraft as a weapon.

III. Concluding Remarks Acts of sabotage of aircraft have decreased greatly, but international civil aviation stakeholders continue to search for the most effective way to address sabotage by drafting counterterrorism measures, including the adoption of the MEX Convention (1991) and the Beijing Convention (2010). While the Montreal “Sabotage” Convention (1971) is a tool to deal with the aftermath of sabotage, successive conventions, which ban the production of unlabeled plastic explosives or prohibit transportation of dangerous goods that are used for sabotage, are also designed to prevent such threats to aviation security. Jinyoung Choi

References Abeyratne R, ‘The Beijing Convention of 2010: An Important Milestone in the Annals of Aviation Security’ (2010) 36(3) Air and Space Law 243.

Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 23 September 1971, 974 UNTS 177. Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1 March 1991, (in force on 21 June 1998). Grigorieff C-I, Thijssen C and Sleeckx A, ‘Attacks against Aviation: Beijing Convention and Protocol Now in Force’ (2019) 44(2) Air and Space Law 125. Huang J, Aviation Safety and ICAO (PhD dissertation, Leiden University 2009). ICAO, Annex 17 Security – Safeguarding International Civil Aviation Against Acts of Unlawful Interference (11th edn, ICAO 2020). Mendes de Leon P, Introduction to Air Law (10th edn, Wolters Kluwer 2017). Milde M, ‘Law and Aviation Security’ in Masson-Zwaan TL and Mendes de Leon P (eds), Air and Space Law: De Lege Ferenda (Martinus Nijhoff Publishers 1992). Milde M, International Air Law and ICAO (Essential Air and Space Law, 3rd edn, Eleven International Publishing 2016). Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States) Provisional Measures, Order of 14 April 1992, [1992] ICJ Reports 114. On 31 October 2008. Thomas C and Kirby M, ‘The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation’ (1973) 22(1) The International and Comparative Law Quarterly 163.

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131. Safety Handbook

their safety objectives, and consequently, the State’s safety objectives, which are often achieved through regulation” (see again ICAO 2018, at 8.3.8). The ICAO Safety Oversight Manual, which I. Definition and Context identifies the duties and responsibilities of The intricacy of the modern air transporta- the States parties to the Chicago Convention tion system has progressively called for provi- with respect to the establishment of a safety sions aimed at assisting States and operators oversight system and to which the ICAO in identifying possible hazards and manag- Safety Management Manual refers (at 8.3.8.1), ing safety risks. Reducing the likelihood further clarifies the point. It stresses that of accidents and incidents and ensuring the “the effectiveness of a safety oversight syssafe operation of aircraft require indeed the tem and the implementation of national and highest standards of safety and strong regu- international standards need to be supported latory oversight (see, among others, Jimena by guidance material which will provide the Blumenkron [2016], Pablo Mendes de Leon technical experts with guidance on how to [2017] and Francesca Pellegrino [2019]). accomplish their specific functions” (ICAO Several provisions relate to the safe opera- 2006, Part A, at 3.6.1). This implies that States tion of aircraft engaged in international air should develop and publish technical guidance transport. They include those contained, in material to assist their experts in implementthe form of Standards and Recommended ing existing regulations and best practices Practices, in Annexes 1 (licensing of aeronau- (ICAO 2006, at 3.6.2). Often, States comply tical personnel), 6 (aircraft operations), 8 (air- with this requirement by developing safety craft design, manufacture, and maintenance), handbooks aimed at inspectors. As stated in 13 (investigation of aircraft accidents and the ICAO Safety Oversight Manual, in fact, incidents), and 19 (safety management) to the “an inspectors’ handbook is a useful tool that Convention on International Civil Aviation, should be developed and provided to inspeccommonly referred to as the Chicago tors for all functional areas” (ICAO 2006, at Convention (1944). In particular, Annex 19, 3.6.4). State safety handbooks are therefore which was first adopted in 2013 in an attempt intended for the use of their staff, to whom to further consolidate existing safety provi- they make existing standards more accessible. sions and develop enhanced requirements to In the past, the lack of proper technical proactively address safety risks in an expand- guidance for inspectors on safety provisions ing industry, requires States to develop their had proved ruinous. For instance, in Canada, own safety programs and to demand that when safety management systems regulations safety management systems are implemented were first adopted, inspectors did not have the by their services providers. necessary preparation and/or guidance to proSafety handbooks are documents impart- vide adequate advice to air carriers (Daviding guidance about safety provisions and Cooper [2002]). best practices for national authorities and Yet, States are not the only actors involved operators to comply with them. As such, in the production of guidance material aimed they are pivotal to any State safety policy. at mitigating safety risks. ICAO itself relies on According to the ICAO Safety Management handbooks to provide technical guidance on Manual (ICAO 2018), which provides guid- safety management principles and concepts ance on the implementation of Annex 19 to and, more generally, on the safe operation the Chicago Convention, one of the critical of aircraft engaged in international air transelements of a State safety policy is “technical port. Such material can be particularly useful guidance, tools and provisions of safety criti- to States when preparing their own technical cal information.” Handbooks, which assist guidance material (see, once again, ICAO State authorities and operators in complying 2018, at 3.6.2). Moreover, these manuals can with safety standards, do fall under this item. provide material that expands on the Standards They are, in fact, instruments by which States and Recommended Practices contained in the can “provide guidance to their inspectors and Annexes to the Chicago Convention 1944, service providers to help with the interpreta- which are formulated in broader terms. tion of safety management regulations” and, At the regional level, the European as a result, “to promote a positive safety cul- Aviation Safety Agency (EASA), while not ture and aid the service providers in meeting adopting handbooks stricto sensu, develops 450

safety handbook  451 “guidance material,” which illustrates the meaning of safety requirements and supports their harmonized implementation (Scott and Sousa Uva [2020]). Operators also draft their own safety handbooks as a handy tool to provide guidance to their staff about relevant safety provisions and practices. This action falls, under component 1 of the ICAO safety management system framework, which requires services providers, inter alia, to draft a manual describing their safety management policies, processes, and procedures, including references to applicable regulations (ICAO 2018, at 9.3.8.1 and 9.3.8.3). In addition to its internal function, this manual serves as a safety communication tool with other stakeholders, such as, as far as regulatory issues are concerned, civil aviation authorities (ICAO 2018, at 9.3.8.2). Whether adopted by the ICAO, States, or service providers, handbooks facilitate the uniform implementation of safety standards and their compliance as well as the flow of best practices. As a result, despite not being legally binding, they do concur in enhancing compliance with the global and national safety regulatory landscape. At the same time, they can put broadly defined regulations into a more practical and workable framework.

II. Safety Handbooks: Selected Examples 1. ICAO’s Handbooks ICAO has developed and published technical material aimed at guiding States in the implementation of safety provisions, including the already mentioned Safety Management Manual and Safety Oversight Manual. Sector-specific guidance material on safety issues encompasses, moreover, the Airworthiness Manual (ICAO 2020), the Manual of Aircraft Accident and Incident Investigation (ICAO 2015), the Manual for the Oversight of Fatigue Management Approaches (ICAO 2020), the Manual on Remotely Piloted Aircraft Systems (ICAO 2015), and the Manual on the Competencies of Civil Aviation Safety Inspectors (ICAO 2016). In 2020, ICAO produced a handbook providing guidance on safety management in a specific context, that is, the ICAO Handbook for Civil Aviation Authorities on the Management of Aviation Safety Risks related to COVID-19. This handbook refers to Annex 19 of the Chicago Convention and

takes stock of the risks involved that have already been addressed through other means. It requires civil aviation authorities, among other things, to apply a safety management approach to identify the risks, take action to mitigate them, and monitor the effectiveness of the mitigation measures put in place (ICAO 2020, at 5.2 ff). 2. Handbooks to Be Adopted by States’ Authorities In other instances, ICAO handbooks serve as sample material for States. ICAO’s Air Operator Certification and Surveillance Handbook (ICAO 2014), which was issued on the basis of Annex 6 to the Chicago Convention, is a case in point. It provides a model document that States should adopt to provide guidance to their inspectors to carry out their work in terms of certification, surveillance, and resolution of safety issues. The same handbook states that: “States who presently have a handbook or manual that provides guidance to inspectors on the certification and surveillance of air operators may wish to use some of the material from this handbook to update their procedures, if required” (ICAO 2014, at 1). For States that do not have a handbook already in place, the model, once adapted, can provide policies and procedures for the certification of air operators (ICAO 2014, at 4). States have adopted their own air operator certification handbooks. One example among many is the Australian Air Operator’s Certificate Handbook, adopted in 2012 and updated in 2016, that sets out guidance information for staff and the industry concerning the requirements and processes for obtaining, changing, and maintaining an operator’s certificate. 3. Operators’ Handbooks ICAO provides guidance also on the redaction of safety management manuals by operators (see again ICAO 2018). Apart from the role played by ICAO, industry associations have also developed model safety handbooks to be adopted by operators. The Airport Council International’s Airside Safety Handbook (4th edition, 2010), which presents itself as a best practice guidance document aimed at airside managers, is an example in this respect. It provides airside operators with guidelines to enhance safety and reduce risks. elena carpanelli

452  elgar concise encyclopedia of aviation law Non-profit organizations have also proposed model safety handbooks to guide operators. The Flight Safety Foundation has, for instance, led the distribution of the Operator’s Flight Safety Handbook, which was developed in 2000 by the Global Aviation Safety Network. The document, which refers to existing global safety standards, is meant to guide the creation and operation of a flight safety function within an operator’s organization. Elena Carpanelli

References Jimena Blumenkron, ‘International Safety Requirements’, in Paul Stephen Dempsey and Ram S. Jakhu (eds), Routledge Handbook of Public Aviation (Routledge, 2016). Renè David-Cooper, ‘The Transition to Safety Management System (SMS) in Aviation: Is Canada Deregulating Flight Safety?’, 81 Journal of Air Law and Commerce 33– 63 (2002). ICAO, ‘Safety Oversight Manual’, Doc. 9734, 2nd edition (2006). ICAO, ‘Air Operator Certification and Surveillance Handbook’ (2014). ICAO, ‘Manual on Remotely Piloted Aircraft Systems (RPAS)’, Doc. 10019 (2015).

elena carpanelli

ICAO, ‘Manual of Aircraft Accident and Incident Investigation – Part I’, Doc. 9756, 2nd edition (2015). ICAO, ‘Manual on the Competencies of Civil Aviation Safety Inspectors’, Doc. 10070 (2016). ICAO, ‘Safety Management Manual’, Doc. 9859, 4th edition (2018). ICAO, ‘Handbook for Civil Aviation Authorities on the Management of Aviation Safety Risks related to Covid-19’, Doc. 10144, 1st edition (2020). ICAO, ‘Airworthiness Manual’, Doc. 9760, 4th edition (2020). ICAO, ‘Manual for the Oversight of Fatigue Management Approaches’, Doc. 9966, 2nd edition (2020). Pablo Mendes de Leon, Introduction to Air Law (Kluwer, 2017). Francesca Pellegrino, The Just Culture Principles in Aviation Law: Towards a Safety-Oriented Approach (Springer, 2019). Benjamyn I. Scott and Rita Sousa Uva, ‘The Role of Aviation Safety “Soft Law” in the European Union Regulatory Landscape’, 69 Zeitschrift fur Luft- und Weltraumrecht 604–627 (2020).

132. Safety Investigation Authorities

appropriate legislation on aircraft accident investigation is in place.”

I. Introduction

Detailed information on the Safety Investigation Authorities (SIAs) is contained in Doc 9756, Part I “Organization and Planning.” This Doc specifies (2.1.7) that “The accident investigation authority must be strictly objective and totally impartial and must also be perceived to be so. The authority should be established legislatively in such a manner that it can withstand political or other interference or pressure from other government organizations, as well as from industry.” Indeed, the accident/serious incident causation can be linked to the regulatory, supervision, and management activities of the civil aviation system. Therefore, to allow the SIA to operate in the most efficient manner, it should be organizationally or functionally independent from any other organization of the civil aviation system, because their interests may conflict with the tasks entrusted, by law, to the SIA. In particular, it should be independent from the Ministry of Transport, from the national CAA (Civil Aviation Authority), from other civil aviation entities, and, in general, from any other party whose interests could conflict with the SIA duties. Especially, the SIA should be independent from the State authorities responsible for airworthiness, certification, flight operation, maintenance, licensing, air traffic control, or airport operation. In further detail, Annex 13 specifies that any safety investigation “shall be separate from any judicial or administrative proceedings to apportion blame or liability” (Standard 5.4.1). The difference between the safety investigation and the judicial investigation is in the different objectives: the safety investigation has as its objective to improve aviation safety (prevention), while the judicial investigation aims to punish wrongdoers and compensate victims. Appendix A of Doc 9962 contains model legislation that may be used by States to develop their own legislation in line with the Annex 13 provisions. Finally, legislation layout should grant the SIA independence not limited to the organizational and functional meaning, but also comprising the operative attribute: “The accident

II. Independence of the Safety Investigation Authorities

Article 26 of the Convention on International Civil Aviation of 1944, also known as the Chicago Convention, requires that “In the event of an accident to an aircraft of a contracting State occurring in the territory of another contracting State, and involving death or serious injury, or indicating serious technical defect in the aircraft or air navigation facilities, the State in which the accident occurs will institute an inquiry into the circumstances of the accident, in accordance, so far as its laws permit, with the procedure which may be recommended by the International Civil Aviation Organization [ICAO].” This recommended procedure is laid down in Annex 13 “Aircraft Accident and Incident Investigation” to the Chicago Convention. For more detailed information, Annex 13 refers to documents (Doc) published by ICAO, such as the Doc 9756 “Manual of Aircraft Accident and Incident Investigation’, the Doc 9962 ‘Manual on Accident and Incident Investigation Policies and Procedures” and Doc 9946 “Manual on Regional Accident and Incident Investigation Organization.” The sole objective of the investigation described in Annex 13 is the prevention of accidents and incidents (definitions of accident, serious incident and incident provided at “Aircraft Accident Investigation” in this Encyclopedia) and its purpose is not to apportion blame or liability. Thus, this activity is also commonly referred as safety investigation. To fulfill the aforementioned Article 26 of the Chicago Convention, Annex 13 (Standard 3.2) requires that each contracting State “shall establish an accident investigation authority that is independent from State aviation authorities and other entities that could interfere with the conduct or objectivity of an investigation.” This authority is usually identified with the acronym SIA (Safety Investigation Authority) in European Union documents and with the acronym AIA (Accident Investigation Authority) in ICAO documents. Other names are also possible. As further specified in Doc 9756, the obligation of Article 26 “can be met only when

453

454  elgar concise encyclopedia of aviation law investigation authority shall have independence in the conduct of the investigation and have unrestricted authority over its conduct” (Annex 13, Standard 5.4). Each State autonomously decides how its SIA should be organized by law (independent authority, agency, commission, committee, board, bureau or other body). As said, it is essential that SIA be organizationally or functionally independent from the above-mentioned subjects. In the case of functional independence, it must be demonstrated that there are no real or perceived examples of influence by the Ministry of Transport or another aviation civil entity on the conduct of the SIA’s investigations, the issuance of findings, safety recommendations, the interim report, and the final report; also, it must be demonstrated that the SIA, during the conduct of its investigations, neither seeks nor takes instructions from other authorities and has unrestricted authority over the conduct of investigations (Doc 9756, 2.17). Nonetheless, the ICAO USOAP (Universal Safety Oversight Audit Programme) recorded that even today many States are not compliant with Annex 13 for independence of the SIAs (or similar entities) and the investigation process. For example, in several States the SIA is structurally part of the Ministry of Transport or is directly tied to the CAA.

III. Regulation (EU) No. 996/2010 Regulation (EU) No. 996/2010 on the investigation and prevention of accidents and incidents in civil aviation is fully compliant with Annex 13 to the Chicago Convention. This Regulation specifies that “The safety investigation authorities play a core role in the safety investigation process. Their work is of the utmost importance in determining the causes of an accident or incident. It is therefore essential that they should be able to conduct their investigations entirely independently and also that they should possess the financial and human resources required to conduct effective and efficient investigations” (recital 15). It states in its Article 4, paragraph 1, that “Each Member State shall ensure that safety investigations are conducted or supervised, without external interference, by a permanent national civil aviation safety investigation authority (safety investigation authority) bruno franchi

capable of independently conducting a full safety investigation, either on its own or through agreements with other safety investigation authorities.” Furthermore, “The safety investigation authority shall be functionally independent in particular of aviation authorities responsible for airworthiness, certification, flight operation, maintenance, licensing, air traffic control or aerodrome operation and, in general, of any other party or entity the interests or missions of which could conflict with the task entrusted to the safety investigation authority or influence its objectivity” (Article 4, paragraph 2). Finally, “The safety investigation authority shall, in the conduct of the safety investigation, neither seek nor take instructions from anybody and shall have unrestricted authority over the conduct of the safety investigation” (Article 4, paragraph 3).

IV. ENCASIA Article 7 of Regulation (EU) No. 996/2010 establishes the European Network of Civil Aviation Safety Investigation Authorities (ENCASIA), which includes all heads of the EU SIAs or their representatives. ENCASIA “shall seek to further improve the quality of investigations conducted by safety investigation authorities and to strengthen their independence. In particular, it shall encourage high standards in investigation methods and investigator training” (Article 7, paragraph 2). ENCASIA is responsible for the following activities: ●

●

●

●

preparing suggestions to and advising Union institutions on all aspects of development and implementation of Union policies and rules relating to safety investigations and the prevention of accidents and incidents; coordinating and organizing, where appropriate, relevant training activities and skills development plans for investigators; promoting best safety investigation practices with a view to developing a common Union safety investigation methodology and drawing up an inventory of such practices; providing, at the request of the SIAs, appropriate assistance, including, but not

safety investigation authorities  455 limited to, a list of investigators, equipment, and capabilities available in other Member States for potential use by the authority conducting an investigation. The ENCASIA members shall neither seek nor accept instructions from anyone that could affect the independent status of safety investigations (Article 7, paragraph 5). ENCASIA, therefore, does not investigate civil aviation accidents or serious incidents, but it is the network grouping EU SIAs. It is closely associated with the EU Commission and provides the necessary support on relevant aspects related to the development of the EU civil aviation accident investigation and prevention policy and regulations. ENCASIA has also published a “Leaflet on Assistance to Air Accident Victims and Their Relatives,” a practical guide on safety investigations for accident victims and their relatives.

V. SIAs Organization SIAs should be organized in such a way they can quickly react to an accident notification, deploying investigators on the accident/serious incident site to collect as soon as possible perishable evidence. Following the immediate aftermath of the event, SIAs should be able to arrange all the necessary technical in-depth studies and tests to gather further evidence. Then, collected evidence is analyzed, bringing to light the accident/serious incident causes and contributing factors. If the SIA believes it is the case, safety recommendations may be issued to improve aviation safety, in addition to the direct effect of the final report publication, which contains all the investigation results. In this framework, it is important to highlight that “The investigation of an aircraft accident is a daunting task that could be almost unlimited in scope” (Doc 9756, Part I, 2.5.2). Consequently, SIAs should be properly funded and manned: SIAs should have a sufficient number of investigators to comply with the duties detailed in Annex 13. When the human, financial, and technological resources of SIAs are limited, ICAO encourages States to foster Regional Accident and Incident Investigation Organization (RAIOs) and regional aviation safety groups (Doc 9946). Accident investigators, also called safety investigators, should “have a practical background in aviation as a foundation on which to

develop investigation skills. This experience can be acquired by working as a professional pilot, as an aeronautical engineer or as an aircraft maintenance engineer. Other specialized areas of aviation which could also provide useful experience include management, operations, airworthiness, air traffic services, meteorology, and human factors. Since accident investigations will often involve all of these specialized areas, it is important that investigators understand the aviation infrastructure and are able to relate to each of these different areas. It is also beneficial for investigators to have some piloting experience in addition to their other expertise” (Doc 9756, Part I, 2.5.3). In addition to technical skills, “an accident investigator requires certain personal attributes. These include integrity and impartiality in the recording of facts; analytical ability; perseverance in pursuing inquiries, often under difficult or trying conditions; and, tact in dealing with a wide range of people who have been involved in the traumatic experience of an aircraft accident” (Doc 9756, Part I, 2.5.4). Based on the above, each SIA should be able to guarantee that “at least one experienced investigator should be assigned to each investigation to ensure an adequate level of experience” (Doc 9756, Part I, 2.5.2). Thus, to fulfill the above-mentioned duties, SIAs are typically organized in departments/ offices each one performing specific functions. The most technologically advanced SIAs have their own laboratories for the different kind of analyses in the investigation process that may be needed. Some examples may be avionic units’ data readout, metallurgical examination, and audio and video processing. However, the most important capability of a SIA is readout and analysis of the flight recorders, commonly referred as “black boxes.” When the SIAs investigates only a specific transport area (e.g., air), then it is referred as single-modal. For example, the following SIAs are aviation single-modal: ANSV (Italy), BEA (France), BFU (Germany), CIAIAC (Spain), UK AAIB (United Kingdom). In the event that the SIA investigates multiple transportation modes (air, marine, rail, pipeline, etc.), then is referred as multi-modal. For example, the following SIAs are multi-modal: DSB (Netherlands), TSB Canada (Canada), NTSB (United States). bruno franchi

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VI. Conclusion Civil aviation is a high reliability and complex system. It continuously evolves both technologically and organizationally. Therefore, SIAs are required to constantly update their investigative skills and operating procedures in order to carry out timely prevention and effective investigations. This evolution requires, in addition to proper professional manning, investments in training and instrumentations and also a specific mindset in terms of flexibility. An emblematic case is represented by drones, which led ICAO to update Annex 13, including provisions for the investigation of unmanned aircraft and SIAs to face this new challenge. In this framework, space exploration makes it probable that, in the future, the need may arise for prevention and investigation of spacecraft accidents. Bruno Franchi

References ENCASIA,  https://transport​.ec​.europa​.eu​/ transport​-modes​/air​/about​-encasia​-network​ _en.

bruno franchi

ENCASIA, Leaflet on Assistance to Air Accident Victims and their Relatives, https://transport​ .ec​ .europa​ .eu​ / transport​ -modes​/air​/about​- encasia​-network​/ leaflet​ -assistance​-air​-accident​-victims​-and​-their​ -relatives​_en. ICAO, Annex 13 ‘Aircraft Accident and Incident Investigation’ (12th Edition, 2020). ICAO, Doc 9756 ‘Manual of Aircraft Accident and Incident Investigation’, Parts I–IV. ICAO, Doc 9962 ‘Manual on Accident and Incident Investigation Policies and Procedures’. ICAO, Doc 9946 ‘Manual on Regional Accident and Incident Investigation Organization’. Regulation (EU) No 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC.

133. Satellite Navigation for Aviation

the potential of reaching global coverage by launching more satellites.

I. Terminology

Satellite navigation was originally developed for military purposes, but its benefits have pervaded daily life since the downing of Korean Airlines flight 007 in 1983, which made the United States decide to open its GPS to the civilian community worldwide. Thanks to the availability of free open signals and cheap receivers, satellite navigation has more than demonstrated its value in various rapidly growing fields of application, including the location and navigation function in transportation and tracking systems, and timing service for the synchronization of cellular networks, electrical power grids, and financial networks. Satellite navigation also plays critical roles in land surveying; law enforcement; emergency response, including search and rescue (SAR); disaster management; environmental protection; precision agriculture; mining; scientific research; unmanned vehicle systems; etc. Specific to the domain of aviation, satellite navigation usually plays its role in the context of GNSS. The International Civil Aviation Organization (ICAO), which is a specialized agency of the United Nations to offer global governance over international civil aviation, defines GNSS as “a worldwide position and time determination system that includes one or more satellite constellations, aircraft receivers and system integrity monitoring, augmented as necessary to support the required navigation performance (RNP) for the intended operation” in Annex 10: Aeronautical Telecommunications to the Convention on International Civil Aviation of 1944 (the “Chicago Convention”). ICAO recognizes GNSS as “a key element of the air navigation system that will deliver improved services and meet environmental, efficiency and safety objectives,” prescribed in the fifth edition of the Global Air Navigation Plan (Doc 9750, GANP). Since the 1980s, ICAO has been working on the implementation of CNS/ATM systems where GNSS is a key element. However, this implementation was considered probably the most complex and far-reaching project ever undertaken by ICAO in the history of aviation due to, among others, certain legal causes.

II. Applications of Satellite Navigation

Satellite navigation is a space-based technology that uses satellites to provide Positioning, Navigation and Timing (PNT) service with higher accuracy and wider coverage compared with its ground-based alternatives. A satellite navigation system is technically composed of three segments: the space segment, a constellation of multiple satellites that continually transmit radio signals containing navigation data in designated frequencies; the control segment, a ground-based network composed of master control stations, data uploading stations, and monitoring stations; the user segment, the equipment that shows PNT information by computing space signals received from at least three available navigation satellites, based on the trilateration method. With those three segments, a satellite navigation system operates independently of any other technical inputs, including telephonic or Internet reception, but its performance may be augmented by external satellites in space or facilities on the ground so as to meet a better capability required by certain specific industries, particularly civil aviation. A satellite navigation system with global coverage may be termed a Global Navigation Satellite System (GNSS). GPS was the first GNSS and it was developed by the United States in the late 1970s. It has been operational since 1978 and globally available since 1994. The former Soviet Union, now Russia, constructed Global’naya Navigatsionnaya Sputnikovaya Sistema (GLONASS) as the second system, and it has had full global coverage since 1995. On 31 July 2020, China officially commissioned the BeiDou Navigation Satellite System (BDS) and opened its service to global users. Galileo navigation satellite system (Galileo) is Europe’s contribution to satellite navigation, but it did not reach its full operational capability as of April 2022. In addition, some emerging spacefaring nations are building or operating their own satellite navigation systems with regional coverage, for example, Japan’s Quasi-Zenith Satellite System (QZSS) and India’s Regional Navigation Satellite System, but they have

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III. The Applicability of International Air Law to GNSS 1. Article 28 of the Chicago Convention The use of GNSS is not a compulsory obligation in law, at least not currently. Article 28 of the Chicago Convention (1944), regulates the responsibilities of States for the provision of air navigation services and facilities, but it indeed leaves them room by including the phrase “so far as it may find practicable.” Since the very beginning of the concept of CNS/ATM systems, ICAO has shown a clear indication that the implementation of either CNS/ATM systems, as a whole, or GNSS, in particular, is compatible with Article 28 of the Chicago Convention (1944) and leaves unaffected the responsibility of States for the provision of air navigation facilities under that provision. According to Article 1 of the Chicago Convention (1944), a State has complete and absolute sovereignty over its airspace. The provision of air navigation facilities is not only a sovereign task but also a decision of that State in determining whether the implementation of CNS/ATM systems, including GNSS, is practicable in its territory. As such, current international air law does not force a State to move towards GNSS-related CNS/ATM systems from traditional conventional air navigation facilities, particularly those States that do not have the capability to develop and operate a satellite navigation system themselves. Although it is still the responsibility of each State to ensure the highest practicable degree of uniformity in all matters concerned with the safety of air navigation through compliance with ICAO Standards and Recommended Practices (SARPs), the Chicago Convention allows its Member States to depart from those SARPs as long as it gives immediate non-compliance notification to ICAO. 2. ICAO Regime for GNSS The balance of interests in the value chain of GNSS has to be guaranteed by law. The development and operation of GNSS require substantial investment, which is a major entry barrier for most States, in addition to a lack of technical capacity. A majority of States thus rely on extraterritorial GNSS facilities outside their control at the current stage and this situation will likely continue for some time. dejian kong

What is more critical is that most of those GNSS facilities are dual use under military control. The modern concept of “navigation warfare,” and political or military conflicts, may therefore lead GNSS provider States to shut down their military and/or civil signals to deny hostile use or as a means of sanctions against certain user States. Furthermore, civil liability for damage caused by defective GNSS signals provided for civil aviation also constitutes a key concern of user States. Against the above legal challenges, ICAO has taken responsibility to consider a legal framework for GNSS since the very beginning of the implementation of CNS/ATM systems. ICAO has for decades provided a forum for drafting rules for GNSS in the context of civil aviation, consequently publishing a series of regulatory and guidance materials related to GNSS to accommodate the proper introduction of GNSS into civil aviation. For example, on 9 March 1994, the ICAO Council released a policy document titled “Statement of Policy on CNS/ATM Systems implementation and operation,” outlining the most fundamental principles for the implementation of CNS/ATM systems, for example, regarding the sovereignty and responsibilities of States and the continuity and the quality of service of CNS/ATM systems. In the same year, ICAO and the US government exchanged letters addressing the political commitment of the United States to continuous and non-discriminatory worldwide access, free of direct user fees, and compliance with the performance parameters required by ICAO SARPs, of GPS. This letter was updated between ICAO and the US government in 2007. The Russian government also exchanged similar letters with ICAO for the use of GLONASS by the civil aviation community in 1996. Furthermore, the 32nd session of the ICAO Assembly adopted two important resolutions on GNSS, namely, (1) Charter on the rights and obligations of States relating to the GNSS services (A32-19); (2) development and elaboration of an appropriate long-term legal framework to govern the implementation of GNSS (A3220). Resolution A32-19 “solemnly declares” several fundamental principles on the implementation and operation of GNSS, most of which are, or intend to be, imposed on States, including both GNSS provider States and user States. Resolution A32-20 confirmed ICAO’s recognition of the importance of GNSS legal

satellite navigation for aviation  459 issues, and “instructs” the Council and the Secretary-General to take further actions on the law of GNSS. In addition to these efforts, the implementation of GNSS raised the need to amend certain ICAO technical documents, in particular ICAO SARPs in Annexes 2, 4, 6, 10, and 11 to the Chicago Convention; Procedures for Air Navigation Services (PANS); and guidance materials, such as the Global Air Navigation Plan (GANP) and Global Navigation Satellite System (GNSS) Manual. These SARPs, PANS, GNAP, and Manual are continuously updated, providing performance assurances, though to a varying degree, for the implementation of GNSS for the purpose of air navigation.

IV. Moving toward a Legal Framework for GNSS Despite the fact that ICAO has been working very hard to apply and reform international air law for GNSS technology, no consensus on the legal framework for GNSS with binding force has been reached between Member States. The legal framework for GNSS is relevant not only to the domain of civil aviation but also to many other sectors. For example, in terms of GNSS cost allocation, ICAO insists that civil aviation should be requested to pay only its fair share according to sound accounting principles and should not be discriminated against compared to other modes of international transport and other user groups. Parallel with ICAO, the International Maritime Organization (IMO) has included GPS, GLONASS, and BDS in its World Wide Radio Navigation System (WWRNS) successively through the recognition procedure by the IMO’s Maritime Safety Committee (MSC). Civil aviation and maritime transportation are just two of the specific uses of GNSS, and efforts made by ICAO and IMO are limited in the process of developing a legal framework for GNSS, whereas the needs of users of GNSS in other domains, such as land mobile transport and financial, electronic, and communication systems, should be identified and protected within a wider international supervision framework as part of efforts to achieve a long-term solution. In this regard, the International Committee on Global Navigation Satellite Systems (ICG) was established under the umbrella of the United Nations in 2005. But the main mission of ICG is to promote cooperation on matters of GNSS on a voluntary basis from a more technical

perspective rather than a legal one. As a radio navigation system, use of GNSS is overseen by the International Telecommunication Union (ITU), and the ITU plays a critical role in coordination procedures regarding GNSSrelated frequency. In addition, certain international organizations, both governmental and non-governmental, have been making their contribution to promoting the law of GNSS. The International Institute for the Unification of Private Law (UNIDROIT) has examined the possibility of preparing an international convention for GNSS third-party liability since 2010. Nevertheless, civil aviation represents the most important sector of GNSS applications, and the main responsibility to decrease legal uncertainty in the use of GNSS will remain with ICAO for the foreseeable future. Dejian Kong

References Dejian Kong, Civil Liability for Damage Caused by Global Navigation Satellite System, (Wolter Kluwer, 2019). Dejian Kong, ‘Sovereignty and GNSS: Connecting the Traditional Legal Concept with High Technology’, in Pablo Mendes de Leon & Niall Buissing (Eds.), Behind and Beyond the Chicago Convention: The Evolution of Aerial Sovereignty, (Wolters Kluwer, 2019). Hans-Georg Bollweg, ‘Initial Considerations Regarding the Feasibility of an International UNIDROIT Instrument to Cover Liability for Damage Caused by Malfunctions in Global (Navigation) Satellite Systems’, 13(4) Uniform Law Review 917–934 (2008). Hiroyuki Yamada, IMO and the GNSS: Navigating the Seas, 2017 (September/ October) Inside GNSS 40–44 (2017). ICAO, ‘Global Navigation Satellite System (GNSS) Manual’, Doc 9849 (2017). ICAO, ‘GNSS-Cost Allocation’, https://www​ .icao​.int ​/sustainability​/ Pages​/eap ​-im​-gnss​ -cost​-allocation​.aspx. Jiefang Huang, Aviation Safety through the Rule of Law: ICAO’s Mechanisms and Practices, (Wolter Kluwer, 2009). Jiefang Huang, ‘Development of the LongTerm Legal Framework for the Global Navigation Satellite System’, 22(1) Annals of Air and Space Law 585–598 (1997). Michael Milde, ‘Solutions in Search of a Problem? Legal Problems of the GNSS’, dejian kong

460  elgar concise encyclopedia of aviation law XXII:II Annals of Air and Space Law 195– 222 (1997). NovAtel Inc., An Introduction to GNSS: GPS, GLONASS, BeiDou, Galileo and Other Global Navigation Satellite Systems, (NovAtel Inc., 2015). Pablo Mendes de Leon, Introduction to Air Law, (Wolters Kluwer, 2017). Pablo Mendes de Leon, ‘Liability for Damage in International Civil Aviation from a GNSS Perspective’, in Global Legal Group

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Ltd., The International Comparative Legal Guide to Aviation Law, (Global Legal Group Ltd., 2019). Pietro Manzini & Anna Masutti, ‘An International Civil Liability Regime for Galileo Services: A Proposal’, 33(2) Air & Space Law 114–131 (2008). UNOOSA, ‘International Committee on Global Navigation Satellite Systems (ICG)’, https://www​.unoosa​.org​/oosa​/en​/ourwork​/ icg​/icg​.html.

134. Scheduled and Non-scheduled Air Services I. Definition A route schedule is aviation’s equivalent of a railway timetable: it details the frequency with which an airline will operate a flight between two or more points. Any flight between two points will require relevant information to be given to service providers, such as air traffic control, along the route and at the destination. In addition to such technical matters, a scheduled service between points in different States raises additional considerations: who may operate flights and on what basis?

II. Quantity and Type of Air Traffic On 30 January 2020 the World Health Organization (WHO) declared that an outbreak of severe acute respiratory syndrome coronavirus 2 (COVID-19) was a public health emergency of international concern. Six weeks later WHO declared a pandemic. Aviation activity around the globe was significantly impacted by the subsequent closure of borders and imposition of extensive public health measures. In its 2021 World Air Transport Statistics Report, IATA explained that in 2020 revenuepassenger kilometers fell by some 65.9% year on year, with some 1.5bn fewer passenger journeys completed. The reduction in scheduled traffic caused by COVID-19 is the largest recorded by IATA since it began keeping records. In its presentation of 2020 air transport statistical results, ICAO echoed IATA’s findings in respect of scheduled traffic, reporting a 75.4% reduction in the number of revenue passenger-kilometers performed. ICAO also reported a 53.5% reduction in the level of non-scheduled traffic, which included non-scheduled traffic operated by scheduled airlines and by non-scheduled operators. According to ICAO, in 2020 non-scheduled traffic accounted for 7.5% of total traffic, an increase from the ten-year low point of 3.9% (recorded in 2016 and 2018). Restrictions in place at borders and within States accounted for the reduction in scheduled traffic and an increase in the relative

level of non-scheduled traffic. Some have suggested that the relative increase in nonscheduled aviation will not be sustained long term, however, key issues being its cost and the ability of newer users to afford those costs over time. In any event, it is also worth noting the likely return of scheduled capacity as public health protections introduced during the pandemic are withdrawn. Scheduled air traffic will make up the majority of all traffic for the foreseeable future.

III. What is Scheduled Air Traffic? Although the States represented at the Chicago Conference in December 1944 wished “that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically,” the Chicago Convention 1944 (“the Convention”) did not open up international skies significantly in commercial terms. Rather, in recognition of differing and strongly held views about States’ capacities to make the most of new commercial and economic opportunities in international aviation, the Convention set out certain elements of a high-level framework within which contracting States could reach agreement bilaterally. Those elements included confirmation of a State’s “complete and exclusive” sovereignty over the airspace above its territory and the introduction of the related concepts of scheduled and non-scheduled flight, with the definition of the latter being dependent on the scope of the former. Two “freedoms” were agreed in respect of non-scheduled flight generally, while a requirement for permission from contracting States for scheduled flight was explicitly provided for. Article 5 of the Convention contains the agreement of contracting States that aircraft not engaged in scheduled international air services, i.e., non-scheduled flights, may make flights into, transit non-stop across, and make stops for non-traffic purposes in their territories, in each case without needing to obtain prior permission. The general permission given is subject to the proviso that the other terms of the Convention be complied with and to a limited number of safety-related caveats. Article 6 of the Convention provides:

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Article 96 of the Convention defines: a) an “air service” as any scheduled air service performed by aircraft for the public transport of passengers, mail; or cargo; b) an “international air service” as an air service which passes through the air space over the territory of more than one State; c) an “airline” as any air transport enterprise offering or operating an international air service. d) a “stop for non-traffic purposes” as a landing for any purpose other than taking on or discharging passengers, cargo, or mail. The Convention entered into force on 4 April 1947. The Chicago Conference also negotiated two other agreements: the International Air Services Transit Agreement (IASTA) and the International Air Transport Agreement. The IASTA entered into force on 30 January 1945 and the International Air Transport Agreement on 8 February 1945. These two agreements provided that, in respect of scheduled international air services, each contracting State would grant to the others certain “freedoms”: 1. to fly across its territory without landing (IASTA, Article 1, Section 1); 2. to land for non-traffic purposes (IASTA, Article 1, Section 1); 3. to put down passengers, mail, and cargo taken on in the territory of the country whose nationality the aircraft possesses (International Air Transport Agreement, Article 1, Section 1); 4. to take on passengers, mail, and cargo destined for the territory of the country whose nationality the aircraft possesses (International Air Transport Agreement, Article 1, Section 1); 5. to take on passengers, mail, and cargo destined for the territory of another agreeing nation and to put down passengers, mail, and cargo coming from any such territory (International Air Transport Agreement, Article 1, Section 1). kate staples

Overall, the Chicago Conference resulted in the agreement on two foundational “freedoms” in respect of both scheduled and nonscheduled flight. These freedoms removed political objections to what would otherwise be infringements of State sovereignty. By contrast, the third, fourth, and fifth freedoms negotiated in respect of scheduled flight were commercial in nature. Accordingly, a proviso was included in respect of those freedoms: With respect to the privileges specified under paragraphs 3, 4 and 5 […], the undertaking of each contracting State relates only to through services on a route constituting a reasonably direct line out from and back to the homeland of the State whose nationality the aircraft possesses. (International Air Transport Agreement, Article 1, Section 1)

Given the potential significance of the rights granted by the third, fourth, and fifth freedoms, it is not surprising that the levels of adoption vary greatly. The Chicago Convention of 1944 has been adopted by 193 contracting States, 134 States have accepted the terms of the IASTA, and only 11 have accepted the terms of the International Air Transport Agreement. Neither the Convention nor the IASTA or the International Air Transport Agreement provided a definition of scheduled flight. This obvious omission was corrected in March 1952, when the ICAO Council adopted a definition: A scheduled international air service is a series of flights that possesses the following characteristics: (a) It passes through the air space over the territory of more than one state; (b) It is performed by aircraft for the transport of passengers, mail, or cargo for remuneration, in such a manner that each flight is open to use by members of the public; (c) It is operated, so as to serve traffic between the same two or more points, either (i) according to a published timetable, or (ii) with flights so regular or frequent that they constitute a recognizable systematic series.

The requirements are cumulative. A scheduled service comprises a number of repeated journeys between points in two different States, carried out on a paid-for basis, and accessible to the public either because a timetable of services has been published or because a

scheduled and non-scheduled air services  463 repeated pattern of service can be identified. Non-scheduled operations do not have these characteristics. Non-scheduled operations may, for example, be flown on an ad hoc basis or available only on a private basis, such as flights transporting football fans to an overseas match in a knock-out competition. The limits of aerospace technology also played a role in shaping the architecture of international aviation. At the time of the Chicago Conference long-haul flight was difficult, making it much more important to secure States’ permission for scheduled services between all points along a route. Advances in aerospace technology mean that it is now technically feasible to fly long haul with greater ease. Stopovers remain a feature of international aviation, however. Their continued use is largely a commercial issue: the inclusion of a stop between the point of origin and the final destination increases the size of an airline’s route network and thus the pool of potential customers from which it can draw, contributing to the viability of the service schedule over time.

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IV. Opening Skies The decades since 1944 have seen significant changes in States’ approaches to giving permission for scheduled services pursuant to Article 6 of the Convention. In 1946 the Bermuda Agreement was finalized between the United States and the United Kingdom. Described in 1965 as a “compromise between the American desire to obtain the greatest possible freedom of traffic, with the minimum of control, and the British desire to have economic supervision of scheduled air services,” the Bermuda Agreement permitted scheduled air services between the United States and the United Kingdom, but only subject to limits on tariffs and frequencies and supervision of any changes. In place of a proliferation of restrictive bilateral agreements between States, “open skies” approaches gradually came to predominate in key aviation States and regions. ●

since 1992, albeit with notable exceptions, the United States has consistently pursued an open skies policy in negotiating the terms on which airlines are permitted to provide scheduled services to the United States. The United States seeks, as a matter of policy, to eliminate government

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intervention in the commercial decisions of air carriers about routes, capacity, and pricing, enabling airlines to provide more affordable, convenient, and efficient air service for consumers and shippers. The United States has negotiated over 120 open skies agreements; the European Union (EU) adopted the same “open skies” approach within the EU in 1992. In 1992, the “third package” was set out in Council Regulations (EEC) Nos. 2407/92, 2408/92 and 2409/92 (since replaced by Regulation (EC) No. 1008/2008 of the European Parliament and of the Council). The package liberalised the European single aviation market: airlines established in an EU State could freely set fares for passengers and cargo and could access any intra-EU route without any permit or authorization. The liberal approach has since been extended to the EU’s external agreements, such as the Air Transport Agreement with the United States (2011); Canada has adopted a “blue sky” policy in giving permission pursuant to Article 6 of the Convention. The policy has led to the agreement of 23 open skies agreements, parties acknowledging that market forces should determine the price, quality, frequency, and range of scheduled air services, with no limit on either the number of airlines permitted to operate or their service frequencies. Agreements with other States may take the form of expanded bilateral agreements or firsttime agreements, albeit that in both cases they contain sufficient rights to allow carriers to launch new services without having to renegotiate or make changes to the agreement; in Latin America, the Multilateral Open Skies Agreement for Member States of the Latin American Civil Aviation Conference entered into force in April 2019. The agreement has been signed by nine States and remains open for accession by other Conference States; in Africa, over 30 States have entered the Single African Air Transport Market: Benin, Botswana, Burkina Faso, Cabo Verde, Cameroon, Central African Republic, Congo Brazzaville, Côte d’Ivoire, Egypt, Ethiopia, Equatorial Guinea, Gabon, Gambia, Ghana, Guinea (Bissau), Guinea, Kenya, Lesotho, kate staples

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Liberia, Mali, Morocco, Mozambique, Namibia, Niger, Nigeria, Democratic Republic of Congo, Rwanda, Senegal, Sierra Leone, South Africa, Swaziland, Chad, Togo, and Zimbabwe. Launched in 2018, the market gives effect to the Yamoussoukro Declaration of November 1999. By Article 3 of that declaration, States parties granted to each other the free exercise by airlines established in those States of the first, second, third, fourth, and fifth freedoms of the air on both scheduled and non-scheduled flights. No limit on the frequency or capacity of the services is provided for; decisions on such matters are left to the discretion of airlines; the Association of Southeast Asian Nations (ASEAN) has an “open skies” policy, which came into effect on 1 January 2015 and received full ratification by May 2016. Known as the ASEAN-Single Aviation Market (ASEAN-SAM) its aim is to liberalize air traffic between the ten ASEAN States: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam; on 2 June 2021 ASEAN and the EU completed negotiations on the first blocto-bloc air transport agreement. The result of eight rounds of discussions and currently in its final stages of signature, the ASEAN-EU Comprehensive Air Transport Agreement (AE CATA) permits airlines from 37 States to operate unlimited numbers of nonstop flights between countries in the ASEAN and EU blocs. Fifth freedom connections are subject to a limit of up to 14 services per week with a stop within the other region to pick up passengers on the return leg. The agreement was signed on 17 October 2022 and took immediate effect.

Protection of sovereignty and disagreement about how to enable equitable market access informed the original design and dictated the subsequent development of aviation’s international architecture. The prevalence of “open skies” policies is not assured, however. The impact of the pandemic on aviation coupled with heightened political interest in States’ economic independence and resilience may kate staples

lead to greater interest in and supervision and, possibly, control over the grant of permission for scheduled air services. Kate Staples

References Analysis: Booming Private Jet Market Stretches Rich Buyers as Climate Clouds Gather, Reuters​ .c​ om October 21, 2021, available   at   https://www​ . reuters ​ . com​ /business​ /aerospace​ - defense​ / booming​ -private​-jet​-market​-stretches​-rich​-buyers​ -climate ​ - clouds ​ - gather ​ - 2021​ -10 ​ - 21/, accessed on 29 April 2022. ASEAN, EU Conclude the World’s First blocto-bloc Air Transport Agreement, ASEAN, available at https://asean​.org​/asean​-eu​ -conclude​-the​-worlds​-first​-bloc​-to​-bloc​-air​ -transport​-agreement/ and https://ec​.europa​ .eu ​/newsroom ​/move​/items​/714576​/default, accessed on 29 April 2022. The Blue Sky Policy: Made in Canada, for Canada, Government of Canada, available at   https://tc ​ . canada ​ . ca ​ / en ​ / cor porate​ -services​/policies​/ blue ​-sky​-policy​-made​ -canada​-canada​# types, accessed on 29 April 2022. Civil Air Transport Agreements, US Department of State, available at https:// w w w​ . s t a t e ​ .gov ​ /c iv i l ​ - a i r ​ - t r a n s p o r t​ -agreements, accessed on 29 April 2022. Convention on International Civil Aviation (Chicago, 7 December 1944), 9th Edition, available at https://www​.icao​.int​/ publications​/pages​/doc7300​.aspx, accessed on 1 April 2022. ICAO Doc 7278-C/841 Definition of Scheduled International Air Service. International Air Services Transit Agreement 1944, available at https://www​.mcgill​.ca​/ iasl ​/files​/iasl ​/chicago1944b​.pdf,  accessed on 29 April 2022. International Air Transport Agreement 1944, available at http://library​.arcticportal​ .org​/1584​/1​/international​_ air​_ transport​_ agreement​_chicago1944c​.pdf, accessed on 29 April 2022. Multilateral Open Skies Agreement for Member States of the Latin American Civil Aviation Commission, available at https:// www​ . anac​ .gov​ . br​ /en​ /air​ - services​ /open​ -skies​-multilateral​-agreement​-for​-member​ -states ​ - of​ -latin ​ - american ​ - civil ​ - aviation​ -commission​-lacac, accessed on 29 April 2029.

scheduled and non-scheduled air services  465 Open Skies Agreements Currently Being Reports of International Arbitral Awards, Applied, US Department of Transportation, Volume XVI, pp. 75–108, p. 97, Interpretation available at https://www​ .transportation​ of the air transport services agreement .gov​ / policy​ /aviation​ - policy​ /open​ - skies​ between the USA and Italy, 17 July 1965. -agreements​-being​-applied, accessed on World Air Transport Statistics 2021, 29 April 2022. IATA, available at https://www​ .iata​ .org​ Presentation of 2020 Air Transport /contentassets​ / a68​ 6 ff6​ 2 455​ 0 453​ e 8bf​ Statistical Results, ICAO, available at 0c9b​3f7f0ab26​/wats​-2021​-mediakit​.pdf, https://www​.icao​.int​/annual​-report​-2020​/ accessed on 29 April 2022. Documents​/ARC​_ 2020​_ Air​%20Transport​ Yamoussoukro Declaration 1999, available at %20Statistics​_final​_sched​.pdf, accessed http://afcac​.org​/en​/images​/ Documentation​/ on 29 April 2022. yd​_eng​.pdf, accessed on 29 April 2022.

kate staples

135. Search and Rescue Operations I. Introduction In 1980, Saudi Arabian Airlines L-1011 caught fire soon after takeoff from Riyadh Airport. The pilot did an excellent job in making an emergency landing after the incident, and everyone expected the danger to avert. Unfortunately, none of the 301 persons onboard the aircraft survived. This incident is quoted as a best example of failure to respond to the aviation emergency. A blame game ensued from this catastrophe between the delay in the arrival of firemen and the wrong decision of the pilot to move to the taxiway instead of making an emergency stop on the runway for evacuation, which resulted in the loss of crucial time for rescue. Whoever may have been at fault, this was a survivable accident, which ultimately ended up in a disaster due to lapses in the rescue operations. Forty years later, Air India Express Flight 1344 crash-landed at Kozhikode Airport in India. Questions were once again raised on the ability of rescue personnel to carry on rescue operations as the crash probe found that the rescue team was not familiar with the Boeing 737, which contributed to the death of the pilots. Hence, there remains no doubt that aviation accidents require emergency preparedness and quick responses to save people onboard the aircraft. Accidents on the high seas and in hilly regions, dense forests, and deserts also require facilities to carry on search operations effectively, in addition to trained rescue personnel. While developing search and rescue capability is primarily within the domain of individual States, the Convention on International Civil Aviation of 1944 (The Chicago Convention) aims to establish international standards in this regard among the Member States. Understanding the significance of these international standards, regular updating, and the implementation of international standards at the domestic level are of utmost importance in protecting human lives during survivable accidents.

II. State Responsibility to Assist Search and rescue operations in civil aviation were initially considered as a part of

private laws. For the first time, the Convention Relating to the Regulation of Aerial Navigation Signed at Paris, 13 October 1919 (the Paris Convention) enumerated the requirement of State assistance in a limited way for landing and salvage at sea under Articles 22 and 23, respectively. However, the major development in placing responsibility on the States for emergency assistance in aviation disasters took place after World War II. During World War II, several States, including the United Kingdom, the United States, and Canada, started organized search and rescue service for saving aircrews, which ultimately resulted in aviation search and rescue transforming into a State responsibility. Article 25 of the Chicago Convention, obligates the State that are parties to render assistance during distress based on the following terms: Each contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable, and to permit, subject to control by its own authorities, the owners of the aircraft or authorities of the State in which the aircraft is registered to provide such measures of assistance as may be necessitated by the circumstances. Each contracting State, when undertaking search for missing aircraft, will collaborate in coordinated measures which may be recommended from time to time pursuant to this Convention.

This provision has two parts. The first part operates with respect to an aircraft in distress within the territory of a State. This part imposes an obligation on such a State to take all practicable measures to assist. Moreover, subject to its control, other stakeholders in the aircraft concerned should be permitted to provide requisite assistance. The second part of this provision deals with the search for missing aircraft, and it is not confined to the territorial jurisdiction of any State. It upholds the spirit of international cooperation through collaborative efforts to search for missing aircraft. This provision is supplemented by Annex 12 of the Chicago Convention with detailed norms on search and rescue.

III. Annex 12 and State Cooperation The International Civil Aviation Organization (ICAO) came into existence as a nodal agency under the Chicago Convention to achieve

466

search and rescue operations  467 manifold objectives in connection with developing safe and efficient air transportation. While Article 44 of the Chicago Convention stipulates the aims and objectives of ICAO, Article 37 entrusts the responsibility on the ICAO to progressively adopt international Standards and Recommended Practices (SARPs) and procedures from time to time. The SARPs are to be adopted as domestic laws of States, and they carry the objective of achieving the highest practicable level of uniformity with respect to different aspects associated with civil aviation. Achieving uniformity is of utmost significance in preventing chaos and promoting the orderly development of civil aviation across the globe. Moreover, with regular updating, SARPs have made the Chicago Convention norms dynamic in catering to the new civil aviation requirements. In discharging its responsibility under Article 37, ICAO has adopted SARPs in the form of Annexes to the Chicago Convention. While the “Standards” are considered to be essential, the “Recommended Practices” are viewed as desirable in the civil aviation sector. Hence, Article 38 indicates the requirement of compliance with standards and procedures except where it is impracticable for States to comply. The provision mandates States to inform the Council of ICAO about any deviation from the Standards, and the Council of ICAO is obligated to notify such deviations to all other States. In addition, the Council of ICAO passed a resolution in 1948 asking States to keep their deviations from standards to an absolute minimum. Thus, the Chicago Convention Annexes carry immense practical weightage. Annex 12 was adopted by the ICAO Council in 1950 to extensively deal with the critical aspect of search and rescue. It is not just confined to the territorial limits of the States, but it also extends to the high seas in terms of establishment, maintenance, operation, and coordination of search and rescue services. Annex 12 starts with the requirement to establish and ensure round-the-clock prompt provision of services in connection with search and rescue of persons in distress (Chapter 2). While the contracting States are mandated to provide such services within their respective territories, either individually or jointly in cooperation with other States, regional air navigation agreements need to cover the areas beyond the territorial jurisdiction of States. Every search and rescue facility

should be based on a sound legal framework and a responsible authority. Availability of resources, suitable communication facilities, and a skilled workforce is considered to be key to an effective search and rescue system. The Annex mandates the responsible States to provide emergency assistance irrespective of the nationality or status of persons in distress. Since there is a possibility of overlapping jurisdiction of aviation and maritime institutions, the focus is also given on the requirement of coordination between the aviation and maritime rescue centers. To prevent overlapping of search and rescue regions, the contracting States are obligated to delineate their search and rescue regions either individually or jointly through cooperation with neighboring States. This delineation of search and rescue regions is not on the basis of State boundaries but rather on the basis of technical and operational considerations. Each search and rescue region should have a rescue coordination center, and rescue subcenters are also recommended in some joint initiatives to boost the efficiency of search and rescue operations. Rescue coordination centers must have trained personnel and rapid and reliable two-way communication with various agencies connected with search and rescue. The search and rescue units should be established as per the determination of regional air navigation agreements and adequate equipment should be provided to each unit to effectively carry on search and rescue operations. Chapter 3 of Annex 12 seeks international cooperation regarding aviation search and rescue. The States are advised to develop common search and rescue plans and procedures to ensure better coordination. In furtherance of the spirit of cooperation, States are obligated to allow the entry of other States’ search and rescue units to take immediate action to effect search and rescue of accident survivors. All necessary information in connection with the entry of search and rescue units should be published and disseminated by States. It is also recommended to have agreements to remove the barriers regarding the entry of search and rescue units in each other’s territories, especially among neighboring States, to facilitate expedited entry. Moreover, authorized rescue coordination centers are recommended to provide all possible assistance to each other, and States are expected to arrange for joint training exercises and periodic sandeepa bhat b.

468  elgar concise encyclopedia of aviation law liaison visits of personnel among different rescue coordination centers and subcenters to promote efficiency. The search and rescue organizations are entitled to receive full cooperation from all aircraft, ships, and local services as well as from facilities that do not form part of such organizations. The requirement of coordination between aeronautical and maritime authorities, and between search and rescue units and those involved in accident investigation or those responsible for taking care of accident victims, is also emphasized for the effective conduct of emergency responses. Chapter 4 addresses the measures to be taken for keeping search and rescue units prepared for prompt action. The rescue coordination centers are required to keep up-to-date information about different players in search and rescue missions within their respective search and rescue region. Plans of operation for the efficient conduct of search and rescue operations are to be developed by the rescue coordination centers, preferably jointly with representatives of operators and other public or private service providers. Each rescue unit should be aware of entire plans of operation, and rescue coordination centers should be informed about unit’s preparedness for emergency action. States are also obligated to maintain a requisite number of facilities for search and rescue with adequate supplies of rescue and survival equipment. Regular training of personnel along with search and rescue exercises is mandated for maximizing efficiency. The last substantive chapter of Annex 12, Chapter 5, deals with operating procedures in case of accidents. The first stage in the operating procedure is to provide information in case of emergency to rescue coordination centers by the organizations connected with search and rescue. Upon evaluating information, the rescue coordination centers should assess the extent to which the operation needs to be carried out and follow the detailed procedure provided herein with respect to uncertainty phase, alert phase, and distress phase. Separate procedures are provided for taking action in cases where the position of an aircraft is unknown during emergency or where two or more contracting States are responsible for search and rescue operations. The rescue coordination centers usually decide the time for discontinuing search and rescue operations. Delivery of all survivors sandeepa bhat b.

to a place of safety or the lapse of time such that no hope remains to rescue the survivors stands as the decisive factor in terminating the search and rescue operations. In case it becomes impracticable to carry on search and rescue operations, due to perhaps weather conditions or technological issues, information has to be provided to the concerned authorities, and operations should be resumed subsequently if practicable and justified. If search and rescue operations involve multiple facilities, one or more units on-scene should be designated by the rescue coordination center or subcenter to coordinate all actions. Even the commander of an aircraft who observes another aircraft in distress is also entrusted with responsibilities under this part of the Annex to take necessary measures. As recommendations, the Annex concludes with rescue coordination centers; (a) keeping a record of operational efficiency of the search and rescue organizations, and (b) preparing appraisals of actual search and rescue operations. The appraisals, which are of significance to other States, are to be submitted to the ICAO for information and dissemination.

IV. Concerns in the Search and Rescue Norms While a comprehensive set of norms on search and rescue appears to be in place under the Chicago Convention, there are significant limitations that require the attention of the international community. In terms of scope of application, the Chicago Convention norms are applicable only to civil aircraft, and thus, search and rescue norms with respect to other aircraft are not dealt with under the Convention. Military aircraft are used extensively for search and rescue operations but, concerning accidents of military aircraft, ironically the Chicago Convention does not stipulate a requirement of emergency assistance. Added to this, enforcing the obligations on the States in case of non-compliance of norms is a problem in the absence of any provision prescribing sanctions. Since the possibility of deviation from the Annexes is possible, uniform application of international standards becomes impossible. States cannot be forced to set up the requisite search and rescue service or to provide service in the manner necessitated under the circumstances. This creates inevitable problems with respect to international cooperation and coordination.

search and rescue operations  469 The search and rescue operations in aircraft accidents involve huge costs. The Chicago Convention does not mention the cost reimbursement. If we look into space law, there is a distinction between the cost involved in rescue and return of personnel and the cost involved in the recovery and return of space objects. While the former is not mentioned as being reimbursable, given the principle of astronauts as envoys of mankind, the latter is to be reimbursed by the “launching State” under Article 5(5) of the Rescue Agreement of 1968. In air law, the principle of astronauts as envoys of mankind does not apply, and, thus, mandating the search and rescue cost reimbursement is required. The absence of cost reimbursement would jeopardize the interests of several stakeholders in civil aviation as the search and rescue agencies or States would be keen to make a decision to call off operations for cost minimization. The above discussions lead to the obvious conclusion that, though the responsibility to provide assistance to aircraft in distress is placed on the contracting States of the Chicago Convention, the practical implementation is not easy. It is to be understood that apart from the legal concerns stipulated above, technical limitations stand as major impediments in aviation search and rescue operations. The tragedy of Malaysia Airlines flight MH370 is the best recent example of the technical limitations encountered in effective conduct of search and rescue operations. Hence, any overhaul of the legal regime to put in place more effective search and rescue measures should also focus on technical capacity-building. Sandeepa Bhat B.

References Aneesh Phadnis, ‘Kozhikode airport rescue team was not familiar with Boeing 737: Crash probe’, Business Standard, Mumbai edn, 21 September 2021 accessed 15 April 2022. H. Ph. Diederiks-Verschoor, An Introduction to Air Law (8th edn, Kluwer Law International 2006). Isavwlla Maria Vasilogeorgi, ‘Delimitation of IMO – ICAO Search and Rescue Regions: A Case of Jurisdictional Compilation and Complication’, (2011) Annals of Air and Space Law 251. Ruwantissa Abeyratne, Convention on International Civil Aviation: A Commentary (Springer 2014). Sinead Spencer, ‘The Demand for a Single International Search and Rescue Agreement Template Flexible for Multi-Regional Use as Disseminated by the International Civil Aviation Organisation’ accessed 25 April 2022. Skybrary, ‘L101, vicinity Riyadh Saudi Arabia, 1980’ accessed 15 April 2022.

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136. Single European Sky ATM Research

infrastructures for Air Navigation Services (ANS), with full interoperability of various national components. Single management of all air movements (including U-Space), assigned on a single Network Manager, is aimed at tripling the capacity of the ATM sysI. Introductory Remarks tem in about 20 years, increasing safety of the The Single European Sky ATM Research overall system by 10%, reducing cost by 50% (SESAR) is the European Union (EU) and the environmental impact by 10% for each Research and Development program associ- flight. SESAR constitutes the technological ated with the Single European Sky Initiative pillar of the EU SES initiative, conceived as (SES, 1999), which aims to make EU airspace a single program for Europe, but open to third less fragmented and to improve safety, capac- countries, that is intended to contribute to the ity, cost-efficiency, and the environmental implementation of SES legislation through (a) impact of the Air Traffic Management (ATM) development of best technologies and operational procedures; (b) sharing of technologies system, which consists of by all actors of air transport; and (c) synergy the aggregation of the airborne and ground- in research efforts, avoiding fragmentation of based functions required to ensure the safe and resources. It consists of three phases: a definition efficient movement of aircraft during all phases of operations. (Art. 2, §1.10 of Regulation (EC) phase, which was launched in 2004 and No 549/ 2004 of the European Parliament and started at the end of 2005; a development of the Council of 10 March 2004 laying down phase from 2008 to 2015; and, finally, a the framework for the creation of the single deployment phase, from 2016, still in course. European sky) The research and development activities, including definition and development of ATM The current legal framework includes two leg- components, is led by a dedicated implementislative packages: SES I (basic EC Regulation ing structure, entrusted with the mission, No. 549/2004 and related EC Regulations No. the SESAR Joint Undertaking (hereinafter 550, No. 551, No. 552 of 2004) and SES II (EC SESAR JU), pursuant to Article 187 of the Regulation No. 1070/2009). The European Treaty on the Functioning of the European Commission presented a revision proposal of Union (TFEU). The deployment is managed the SES in 2013 (the SES 2+ package). by the SESAR Deployment Manager, i.e., Current ATM capacity in Europe is close EUROCONTROL, the international organito saturation due to a growing number of zation entrusted with air traffic control in users, increasingly different types of flights, Europe and the partner of the EU Commission the introduction of new unmanned vehicles in the SESAR project. (capable of reaching cruising heights above From a legal point of view, the SESAR FL600), and autonomous technologies, which JU is an institutionalized European partnerrequire reorganization of ATM services aimed ship between the private and public sectors, at a global interoperable system and which is established by Council Regulation (EC) No. necessary not only for economic and/or tech- 219/2007 (several times modified and no nical reasons but also for safety. The aim of longer in force), to coordinate and finance the new digital, smart architecture of ATM in research and innovation for ATM. Europe is to ensure a better forecast of events The founding regulation has now been in all operational phases of flight, including repealed and replaced by Council Regulation airport movements; dynamic management of (EU) 2021/2085, of 19 November 2021, the flow of air traffic, with better configura- establishing the legal framework for nine tion of the route network; essential circulation European Joint Undertakings (JU), including of information between all parts involved in (Articles 142–158) the new Single European the operational chain; optimal allocation of Sky ATM Research 3 Joint Undertaking resources such as airspace, slots, codes, and (hereinafter SESAR 3JU), which followed the radio frequencies for transponders; reduc- preceding SESAR JU. The current Regulation tion of costs, delays, and determination of the (EU) 28 April 2021, No. 695, establishing impact of air traffic on the environment. the Framework Programme for Research and In this framework, SESAR is devoted to Innovation “Horizon Europe” (hereinafter the creation, by 2030, of a new generation of “Horizon Regulation”) 2021–2027, lays down 470

single european sky atm research  471 general rules for European partnerships (Article 10 and Annex III) as a key element of the European policy for research and technological development (RTD), with the aim to achieve the greatest possible impact of Union funding and the most effective contribution to the Union’s policy objectives. According to Article 2, § 1.3 of the Horizon Regulation: “European Partnership” means an initiative, prepared with the early involvement of Member States and associated countries in which the Union together with private and/or public partners […] commit to jointly supporting the development and implementation of a programme of R&I activities, including those related to market, regulatory or policy uptake.

II. SESAR Definition and Development Phases The first attempt to harmonize technical support of equipment for ATM services in Europe is in Directive (EC), 19 July 1993 No. 65, relating to the definition and use of consistent technical specifications for the purchase of equipment and systems for ATM. The current SESAR program is more ambitious, as it includes interoperability as a mere step to the deployment of the new “Digital European Sky,” with technological solutions to manage conventional aircraft, drones, air taxis, and vehicles flying at higher altitudes. The “Definition” phase, related to the drafting and priorities of the new ATM infrastructure (2005–2009) was performed by the SESAR Consortium, with the goal of delivering a European ATM Master Plan to define the work program of research, development, and deployment strategy for ATM solutions. The Master Plan is regularly updated to respond to evolving aviation needs. The latest edition was adopted just prior to the onset of the Covid-19 pandemic. The “Development” phase (2008–2013) was devoted to integrating research activities and validating the technological components of the ATM network. It was managed by the SESAR JU, entrusted with the mission of coordinating basic and applied research. The SESAR JU combines public funds (EU funds and EUROCONTROL in-kind contribution) and private funds for ATM research and development. The Commission and EUROCONTROL are the founding members and provide about two-thirds of the JU budget, while the remaining third is

covered by the SESAR JU members, both public and private. According to scholars, the SESAR JU, as regulated by the aforementioned Regulation (EC) 219/2007, could be qualified as a “European interest company,” an entity first foreseen in the EURATOM Treaty (Article 45) and used for carrying out commercial activities by “international companies” insofar as they are constituted on the basis of an international agreement. Those joint ventures represent an instrument of cooperation among States, public bodies, and private companies aimed at developing an industrial area of the single market (the nuclear energy market); they are, as a rule, companies already existing and operating in national markets that are set up as European joint ventures, acquiring further recognition under European law, especially to benefit from fiscal and tax concessions. On the contrary, the SESAR JU has no commercial purpose insofar as it is aimed at carrying out a mission of European general interest in the field of research and innovation, according to Article 187 of TFEU: this rule, included in Part III, Title XVIII on “research and technological development” of the Treaty, foresees that The Union may set up joint undertakings or any other structure necessary for the efficient execution of Union research, technological development and demonstration programmes of common interest.

According to this definition, it is a structure “created” by the EU where the European Institutions deem it appropriate, with the aim to execute “research, technological development and demonstration programs of common interest”: the deployment of the ATM Master Plan defines the scope of activities of the SESAR JU, set up for reaching objectives of European general interest and not having any (direct) industrial or commercial purpose.

III. The Ongoing SESAR Deployment Phase The current “Deployment” phase (2014– 2020) requires a common effort by civil and military airports, ANS providers, airlines, agencies, and manufacturers to produce and implement validated ATM solutions on a large scale. It was launched in 2016 with the approval of the “CP1 Pilot Project” (EC cinzia ingratoci

472  elgar concise encyclopedia of aviation law Implementing Regulation No. 409/2013, as modified by (EC) Implementing Regulation No. 2021/116, known as the “Pilot Common Project,” (hereinafter CP1) that aims to steer ATM modernization in Europe. The SESAR Deployment Manager, EUROCONTROL (as network manager for developing and operating the ATM network in Europe and beyond) has been entrusted with the task of breaking down the CP1 into a brand-new “SESAR Deployment Programme 2021,” a manual to guide stakeholders on what has to be done, how, where, and by when to accelerate the digitalization of the EU ATM and to allow greener aviation through dynamic management of the flow of air traffic. Building on the work of the SESAR JU experience, the current SESAR 3 JU has a ten-year mandate (2021–2031) to complete the Deployment of SESAR, outlined in the “Multiannual Work Programme” for the implementation of the Connecting Europe Facility (CEF) Digital program, which was adopted (in December 2020) by the EU Multiannual Financing Framework and includes the new digital ATM structure. Regarding the legal status of the new SESAR 3 JU, the above‑mentioned Regulation (EU) 2021/2085, which defines structure and functions of nine joint undertakings (JUs) under EU law, qualifies them as “institutionalized public-private partnership bodies,” according to the structure now outlined in the current Horizon Regulation: the Program sets out the rules for participation and dissemination of R&I projects (for the period 2021–2027) and determines the framework governing the Union financial support for them.

IV. Composition and Functioning The founding members of SESAR 3JU are listed in EU Regulation No. 2021/2085 (Article 144). However, it is possible to expand the membership with associated members selected following open and transparent procedures (Article 7; Article 144 §2). The Horizon Regulation (Annex III) requires members of JUs, other than the EU, to contribute at least 50%, and may reach up to 75%, of the aggregated JU budgetary commitments. EU contributions coming from Horizon Europe funds are not included (Article 6, § 5, Horizon Regulation) in the maximum exposure of EU (see Article 145, Regulation cinzia ingratoci

2021/2085). Partners’ contributions have to be ensured throughout the lifetime of the JU: private partners can deliver an important part of their contributions in the form of inkind contributions to the operational costs of the JU. The SESAR 3JU operates in accordance with Article 208 of (EU/Euratom) Regulation No. 966/2012 on the financial rules applicable to the general budget of the Union (Framework Financial Regulation). Channeling large (public) funds into research programs with private participants, albeit selected by competitive procedures, and the subsequent management of intellectual property rights (Article 40, Horizon Regulation) can affect, although in a lesser and indirect way, the secondary market relating to the production and marketing of ATM components. A strong impact is due to the potential information imbalance between those who are members of the JU and their competitors in the air component market; for this reason, the JU is required to operate as a public administration in managing the funds of the research program and in the selection of the professionals it intends to associate with its work or to whom to recognize financial contributions. SESAR 3JU ensures that institutions and European bodies, offices, or agencies have access to all information related to the actions it funds, including contributions and results of beneficiaries participating in indirect actions. The access rights are limited to non-commercial and non-competitive use and must comply with applicable confidentiality rules. According to Regulation 2021/2085, in each of the Member States SESAR 3JU enjoys the most extensive legal capacity accorded to legal persons under the laws of that Member State (Article 3 §4,). The seat of the JU is in Brussels, Belgium. The bodies of SESAR 3JU include the (Article 148): Governing Board, composed of two representatives of the Commission on behalf of the EU and one representative from each of the other members, with a group of permanent observers; the Executive Director; the group of the States’ representatives; and the Scientific Advisory Body. Staff Regulations and the rules adopted jointly by the institutions of the Union, for the purpose of applying Staff Regulations, pertain to the staff of the JU, which consists of both temporary and contract staff (Article

single european sky atm research  473 37). They may make use of seconded national experts and trainees too (Article 38). SESAR 3JU is liable for any damage caused by its staff in the performance of their duties, according to the general principles common to the laws of the Member States; contractual liability is governed by the relevant contractual provisions and by the law applicable to the agreement, decision, or contract in question (Article 40). JUs are under the jurisdiction of the European Court of Justice (Article 43), and their decisions may form the subject of a complaint to the Ombudsman (Article 44). The European Court of Auditors ensures accounting control. Cinzia Ingratoci

References A.A.V.V., La gestione del traffico aereo: profili di diritto interno, comunitario ed internazionale, a cura di M.P. Rizzo, Milano, 2009. A.A.V.V., L’impresa europea di interesse generale, a cura di G. Rossi, Quaderni della rivista Servizi pubblici e appalti, 2, Milano, 2006. Bolic T., Ravenhill P., SESAR: The Past, Present, and Future of European Air Traffic Management Research, Engineering, 7, 2021, 448–451. Bottinelli L., Nuove forme di impresa nei settori ad alta intensità di ricerca ed innovazione nell’esperienza europea. Il caso Galileo, Milano, 2008. Delgado L., Gurtner G., Lillo F., NetworkWide Assessment of ATM Mechanisms using an Agent-Based Model, Journal of Air Transport Management, 6 July 2021. Gourrier J., La notion juridique d’entreprise commune et les problemes particuliers en matière de transports aériens, in RFDA, 1964, 143. Mannino C., Nakkerud A., Sartor G., Air Traffic Flow Management with Layered

Workload Constraints, Computers & Operations Research, 28 November 2020. Masutti A., Sovereignty Pertaining to Air Traffic Management, in Behind and Beyond the Chicago Convention: The Evolution of Aerial Sovereignty (Pablo Mendes de Leon, Niall Buissing eds.) Kluwer Law International, 2019. Napolitano G., Imprese comuni. Il diritto internazionale, in Enc. giur., XVI, 1989, 2. Pellizzari S., Le forme di partenariato pubblico-privato come strumento di innovazione per lo sviluppo delle imprese e dei servizi sociali, Impresa sociale, 4/2014, 35. Ravenhill P., Bolic T., Interim Evaluation of the SESAR Joint Undertaking (2014– 2016) Operating under Horizon 2020. Luxembourg: Publications Office of the EU, 2017. Schuster W., Ochieng W., Performance Requirements of Future Trajectory Prediction and Conflict Detection and Resolution Tools within SESAR and NextGen: Framework for the Derivation and Discussion. Journal of Air Transport Management, March 2014, 92–101. Sesar J.U., Initial View on Principles for the U-space Architecture, Brussels, July 2019. Sesar J.U., A Proposal for the Future Architecture of the European Airspace, Brussels, 2019. Sesar J.U., European ATM Master Plan, Progress Report 2020. Sesar J.U., European ATM Master Plan, Digitalising Europe’s Aviation Infrastructure, Executive View. Brussels: SESAR Consortium, 2019. Tosato G.L., Sulla nozione di impresa comune nel diritto internazionale, in Riv. dir. int., 1967, 634–635. Ziller J., Ricerca e innovazione, in Trattato di diritto amministrativo europeo, diretto da M. P. Chiti e G. Greco, IV, Milano, 2007, II ed., 1656.

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137. Single European Sky (SES I and SES II)

laying down the framework for the creation of the Single European Sky (the framework Regulation), Regulation (EC) No. 550/2004 on the provision of Air Navigation Services in the Single European Sky (the service provision Regulation), Regulation (EC) No. 551/2004 on the organization and use of the airspace in the Single European Sky (the I. The Preexisting Situation airspace Regulation), and Regulation (EC) The European air traffic control system, No. 552/2004 on the interoperability of the dating back to the 1960s, was extremely European Air Traffic Management network heterogeneous. (the interoperability Regulation). Large areas of airspace were destined for According to Article 2, point 10, of the military uses and closed to civilian use. framework Regulation, air traffic manageIn addition, Europe’s airspace was divided ment means “the aggregation of the airborne along national borders. This division was and ground-based functions (air traffic serbased on the concept of national sovereignty vices, airspace management and air traffic and not on air traffic flows. flow management) required to ensure the safe Although airspace is a common resource, and efficient movement of aircraft during all Air Traffic Management (ATM) was still phases of operations.” organized in a fragmented way at European The main purpose of this package was level. to reinforce safety and foster the restructurThere were 27 national systems, subject to ing of European airspace and Air Navigation different rules and procedures. Every time a Services. plane entered the airspace of a Member State, To achieve the latter goal, it was decided it was serviced by a different Air Navigation to create efficient and functional airspace Service Provider on the basis of different blocks, based on operational requirements operational requirements. This fragmenta- and established regardless of State boundation had a negative impact on safety, limited ries. It also implied civil-military coordinacapacity, and, above all, added to cost. tion in airspace and air traffic management. In the face of the exponential air traffic The Functional Airspace Blocks (FABs), growth, due to tourism development, to busi- established regardless of State boundaries, ness travel, and to European air transport are a key mechanism of the Single European liberalization, severe flights delays became Sky (SES). increasingly common, especially at the end of In fact, Article 5 of Regulation No. the 1990s. 551/2004, entitled “Reconfiguration of the As a response to such problems, it was Upper Airspace” stresses that to achieve necessary to redesign the air traffic control maximum capacity and efficiency of the structure. Air Traffic Management network within the Single European Sky, and with a view to maintaining a high level of safety, the upper II. The First SES Legislative airspace should have been reconfigured into Package Functional Airspace Blocks. Therefore, in 2001 the European Commission A single airspace should be established for formulated the first legislative proposal on en route air traffic in the upper airspace; the the creation of a Single European Sky (SES), interface between such airspace and the lower an ambitious initiative aimed to establish a airspace should be accordingly identified. European, single, and integrated airspace In this way, the SES-I aimed to make EU between the Member States. airspace less fragmented and to improve Following the recommendations of a Air Traffic Management in terms of safety, dedicated High Level Group, the European cost-efficiency, capacity, and environmental Commission drafted a first legislative pack- protection, by reducing flight times through age (SES-I), which was adopted by the the shortest routes and less delays and, conEuropean Parliament and by the Council on sequently, containing flight costs and aircraft 10 March 2004. emissions. The SES-I package included four The goal is to prevent congestion in basic acts: Regulation (EC) No. 549/2004 the air through the design, planning, and 474

single european sky (ses i and ses ii)  475 management of the European ATM network and to limit unnecessary fuel burn and emissions through flow and capacity management. The first package introduced regulatory instruments to help address the environmental challenges associated with the expected growth. It is the only initiative to promptly act against climate change and that has been able to contribute to the sustainable development of air transport systems. According to Article 1 of Regulation No. 549/2004, its application shall be without prejudice to Member States’ sovereignty over their airspace and the requirements of the Member States relating to public order, public security, and defense matters as well as the rights and duties of Member States under the 1944 Chicago Convention on International Civil Aviation. Many implementing rules have been issued by the European Commission pursuant to the adoption of the four basic SES regulations to complete the regulatory framework.

III. The Positive and Negative Aspects of the First Legislative Package This legislation has produced the following results: the separation of regulatory functions from the service provision; greater flexibility in the field of civil and military airspace use; the interoperability of the equipment; the harmonized classification of the upper airspace; a common tariff system for Air Navigation Services; common requirements for air traffic controllers’ licenses. Despite these positive results, European airspace remained fragmented, costly, and inefficient. In particular, the process of establishing FABs has met with a large number of economic and political obstacles. Air Traffic Management continued to be identified with national sovereignty because airspace blocks shall be established only by mutual agreement between all Member States. The latter seem to oppose the cross-border integration process, based on new forms of the exercise of sovereignty over the airspace different from the traditional ones. The First Report of the European Commission, published in December 2007, highlighted issues and limits of the SES-I and contained proposals for a second package, including extension of the mandate of the

European Aviation Safety Agency (EASA) to both ATM and airports and adoption of the European ATM Master Plan.

IV. The Second SES Legislative Package The second package was adopted in November 2009 in order to make European skies safer and more sustainable. The first set of common requirements laid down in SES-I have been implemented by Regulation (EC) No. 1070/2009, which amended the basic regulations of 2004, and by Regulation (EC) No. 1108/2009, amending Regulation (EC) No. 216/2008 in the field of aerodromes, Air Traffic Management, and Air Navigation Services and repealing Directive 2006/23/EC on a Community air traffic controller license. The revision of the previous legislative framework has been focused on four main pillars: performance and sustainability, technology, safety, and airports. First, Regulation No. 1070/2009 aims to improve the performance and sustainability of the European aviation system. In fact, it has introduced a comprehensive EU-wide performance scheme for air navigation services and network functions, set up by implementing Regulation No. (EU) 691/2010. According to this scheme, performance indicators are safety, capacity, environment, and cost-efficiency. The binding targets on key performance areas, which are meant to fully achieve and maintain high levels of safety, must be pursued within three periods. The first period covered the years 2012–2014, the second period spanned the years 2015– 2019, and the last period includes the years 2020–2024. The duration of a reference period aims to provide the certainty required to implement a multi-annual capital expenditure program. The SESAR (Single European Sky ATM Research) project, however, represents the technological pillar of this system. It aims to modernize ATM in Europe, thus contributing to a smarter, more sustainable, better connected, and more accessible air transport system. The SESAR Joint Undertaking plays an essential role in implementing the EU’s Single European Sky initiative. It helps in modernizing Europe’s Air Traffic Management system, bringing improvements in costs, capacity, francesca pellegrino

476  elgar concise encyclopedia of aviation law safety, and environmental impact, by coordinating and bringing together all relevant research and development efforts within the EU, thereby ensuring that research results are effectively applied. In addition, the SES-II aims to bring together the national airspaces into nine FABs.

V. The SES II+ Package Despite such ambitious proposals, the SES-II has not reached the expected results in core areas, such as integration of the airspace in FABs and improvement of cost-efficiency of the European ATM network. Therefore, the European Commission, taking account of the results and of the problems, presented a revision of the SES in 2013 (the SES-II Plus package) containing a proposal (COM(2013) 410) for a revised Regulation that includes the SES legislation of 2004.This proposal is currently in the process of approval by the European Parliament and Council. The update framework focuses on seven main areas: the independence and resources of National Supervisory Authorities (NSAs), support services, customer needs, performance scheme and the Performance Review Body (PRB), Functional Airspace Blocks (FABs), the role of EASA, and the role of EUROCONTROL. In particular, SES-II+ aims to improve the system by providing the National Supervisory Authorities with more support through EU cooperation and shared resources. In addition, more separation and independence, at the functional level at least, of NSAs from the ANSPs are required. In addition, SES-II+ proposes applying normal procurement rules to ensure a transparent selection of the provider in order to eliminate monopoly positions. More attention to customer needs is also required. The proposal emphasizes the need to update the performance scheme to avoid the dilution of objectives, while making the Performance Review Body more independent. This body may report and make recommendations to the Commission for the improvement of the scheme and assists the Commission by providing advice, expertise, and other services. And also, SES-II+ seeks to make FABs more flexible and focused on performance and operational benefits. francesca pellegrino

Finally, the new package draws a clear divided line between the three European organizations involved. Therefore, the competence of EUROCONTROL is based on operational issues (network manager), the role of EASA is to elaborate technical rules and oversight authority tasks, and the European Commission’s function is limited to economic regulation.

VI. Concluding Remarks The COVID-19 pandemic caused a significant reduction in EU air traffic. This crisis seriously affected the economic conditions for air transport services during the third reference period (2020–2024) of the Single European Sky’s performance scheme. In response, it is necessary and urgent to introduce temporary measures to reset the scheme’s performance targets and promote the economic and environmental efficiency of European aviation future. Francesca Pellegrino

References Ammannati, L. and Canepa, A. La politica dei trasporti in Europa: verso uno spazio unico? (Giappichelli, 2015). Antonini, A. and Severoni, C. ‘L’organizzazione e l’uso dello spazio aereo nel cielo unico europeo’, in Rizzo, M.P. (ed), La gestione del traffico aereo: profili di diritto internazionale, comunitario e interno (Giuffré, 2009). Baldoni, C. ‘Lo stato del programma SESAR’, in Pellegrino, F. (ed), Regole e pratiche della navigazione aerea in Europa: verso un’armonizzazione (Giuffrè, 2012). Baumgartner, M. ‘The Single European Sky gridlock: A difficult 10 years reform process’, [2014] Utility Policy 289. Calleja Crespo, D. and Mendes de Leon, P. (eds), Achieving the Single European Sky: Goals and Challenges, (Kluwer Law International, 2011). Calleja Crespo, D. and Fenoulhet, T. ‘The Single European Sky (SES) Building Europe in the Sky’, in Calleja Crespo, D. and Mendes de Leon, P. (eds), Achieving the Single European Sky Goals and Challenges (Kluwer Law International, 2011). Crommentuyn, I. ‘The European Air Traffic Master Plan: The Path So Far and the Road

single european sky (ses i and ses ii)  477 to Take’, in Calleja Crespo, D. and Mendes de Leon, P. (eds), Achieving the Single European Sky Goals and Challenges (Kluwer Law International, 2011). De Marzi, C. ‘Regole dell’aria comuni per il traffico nello spazio aereo nel cielo unico europeo’, Newsletters n. 7. (2012). De Sciscio, M. ‘Il progetto SESAR (Sistema europeo di nova generazione per la gestione del traffico aereo)’, in Rizzo, M.P. (ed), La gestione del traffico aereo: profili di diritto internazionale, comunitario e interno (Giuffré, 2009). Fartek, G. and Rivet, F. ‘The Introduction of Military Dimension into the SES: A New Paradigm of European Commission’, in Calleja Crespo, D. and Mendes de Leon, P. (eds), Achieving the Single European Sky Goals and Challenges (Kluwer Law International, 2011). Garbini, M. ‘Network Management’, in Calleja Crespo, D. and Mendes de Leon, P. (eds), Achieving the Single European Sky Goals and Challenges (Kluwer Law International, 2011). Ingratoci, C. ‘Verso un sistema europeo di nuova generazione per la gestione del traffico aere: l’impresa comune SESAR’, in Rizzo, M.P. (ed), La gestione del traffico aereo: profili di diritto internazionale, comunitario e interno (Giuffré, 2009). Ky, P. ‘SESAR: The Technological Arm of the Single European Sky’, in Calleja Crespo, D. and Mendes de Leon, P. (eds), Achieving the Single European Sky Goals and Challenges (Kluwer Law International, 2011). Lambert, A. and Johnson, T. ‘Performance Review: Implementation’, in Calleja Crespo, D. and Mendes de Leon, P. (eds), Achieving the Single European Sky Goals and Challenges (Kluwer Law International, 2011). Maestre, I. ‘Enforcement Measures, the Task of National Supervisory Authorities’, in Calleja Crespo, D. and Mendes de Leon, P. (eds), Achieving the Single European Sky Goals and Challenges (Kluwer Law International, 2011). Masutti, A. ‘L’assicurazione della responsabilità per danno da prodotto nel settore aeronautico. Future evoluzioni nell’ambito del “Single European Sky”’, Diritto dei trasporti 369 (2016). McMillan, D. and Van Dam, R. ‘Eurocontrol and the EU Single European Sky’, in

Calleja Crespo, D. and Mendes de Leon, P. (eds), Achieving the Single European Sky Goals and Challenges (Kluwer Law International, 2011). Pellegrino, F. (ed) Regole e pratiche della navigazione aerea in Europa: verso un’armonizzazione (Giuffrè, 2012). Preti, F. ‘Il ruolo del Peformance Review Body nel Cielo Unico Europeo: la regolazione delle prestazioni nell’Unione Europa’, in Pellegrino, F. (ed), Regole e pratiche della navigazione aerea in Europa: verso un’armonizzazione (Giuffrè, 2012). Prissinotti, I. ‘L’individuazione e la costituzione del Functional Airspace Blocks (FAB) in Italia’, in Rizzo, M.P. (ed), La gestione del traffico aereo: profili di diritto internazionale, comunitario e interno (Giuffré, 2009). Rizzo, M.P. ‘Il pacchetto di regolamenti comunitari per la realizzazione del “cielo unico europeo”’, in Studi in memoria di Elio Fanara (Giuffré, 2009). Schubert, F. ‘The Single European Sky – Controversial Aspects of Cross-border Service Provision’, 28 Air & Space Law 32 (2003). Stadler, G. ‘The Role of Eurocontrol in the Implementation of the Single European Sky’, in Rizzo, M.P. (ed), La gestione del traffico aereo: profili di diritto internazionale, comunitario e interno (Giuffré, 2009) Steele, P. ‘SES Environmental and Efficiency Benefits: Reduction of Emissions’, in Calleja Crespo, D. and Mendes de Leon, P. (eds), Achieving the Single European Sky Goals and Challenges (Kluwer Law International, 2011). Trovò, L. ‘Il processo d’integrazione degli spazi aerei europei: dalla riorganizzazione in blocchi funzionali verso la globalizzazione dell’Air Traffic Management (atm)’, Rivista di Diritto dell’Economia, dei Trasporti e dell’Ambiente, Giureta, 439 (2011). Tytgat, L. ‘The Single European Sky Regulation in Europe: New Scenarios’, in Pellegrino, F. (ed), Regole e pratiche della navigazione aerea in Europa: verso un’armonizzazione (Giuffrè, 2012). Valente, P. ‘Single European Sky: cielo unico europeo’, in Antonini, A. and Franchi, B. (eds), Il diritto aeronautico a cent’anni dal primo volo (Giuffré, 2005).

francesca pellegrino

138. Slot Allocation

II. Legislation in Force on Common Rules for the Allocation of Slots at Community Airports

I. Introduction Since World War II, civil aviation has experienced a period of long, a steady growth. The number of air passengers and amount of cargo transported have increased annually, as well as the number of airlines that have entered the market. While the industry can replace old aircraft providing new models, and passenger numbers can grow, the aviation sector has always had to deal with a limited resource: airports. The right to fly domestic air routes and, in doing so, to serve airports, is mainly covered by domestic legislation while the right to fly international air routes has been left to bilateral agreements at State level. However, domestic legislation, some EU Regulations, and the US Federal Aviation Act do not usually refer to airport slot allocation. With regard to the ICAO Convention, Article 15 refers to the use of airports with no mention of airport slots in any specific manner, although it is well recognized that the use of an airport implies the use of slots. Despite the opening of new slots and the shift from military to civil use of some airports, they have remained a scarce resource especially in those areas close to the larger cities where there is a huge demand for air transport. This fact has historically led to a situation of congestion at airports where airlines competed for the diminishing capacity available. The scarcity of this resource means its use had to be allocated following a specific regulation. The answer to this problem has been found in the development of the concept of “slot” and its related “procedure for allocation.” From a legal perspective, slot could be defined as the right to use a runway at a specified time on a specified day. The necessity to create a regulatory framework for slot allocation arose also from the fact that newcomers (new airlines) were interested in exploiting market opportunities. They rarely wanted to fly at times which the existing airlines had not opted for, for a variety of reasons.

1. Slot Definition In 1991, the EEC adopted Council Regulation (EEC) No. 95/93, 18 January 1993, on common rules for the allocation of slots at Community airports, here referred in the current version, as amended by EU Regulation No. 793/2004. More recently, further amendments were made to (EEC) No. 95/93 in 2020 and 2021 to adapt some provisions regarding effects produced by the health emergency from COVID19 on air transport. With the liberalization of air transport in Europe in 1992, the demand for air traffic rights rose exponentially, bringing the problem of airport facility scarcity to the forefront. EEC Regulation No. 95/93 aimed to establish a set of rules to allocate access to scarce airport infrastructure, defining slots as: the permission given by a coordinator […] to use the full range of airport infrastructure necessary to operate an air service at a coordinated airport on a specific date and time for the purpose of landing or take-off as allocated by a coordinator in accordance with this Regulation. (Article 2 as amended by EC Regulation No 793/2004)

According to EEC Regulation No. 95/93, as amended by EC Regulation No. 793/2004, each Member State must designate as coordinated any airport where, in order to land or take off, it is necessary for an air carrier or any other aircraft operator to have been allocated a slot by a coordinator, with the exception of State flights, emergency landings, and humanitarian flights (Article 3). To designate an airport as coordinated, the State is required to carry out a capacity analysis, according to which several criteria exist, such as (1) carriers representing more than half of air operations of the given facility consider the existing airport capacity as insufficient, (2) newcomer airline entrants are encountering serious problems in obtaining slots, and (3) no other solutions can be found after consultations with airport stakeholders. Therefore, according to current European legislation, the following conditions must be assessed:1 first, a thorough analysis of the

478

slot allocation  479 airport’s capacity should be realized, based on “commonly recognized methods,” which will be made available to, and discussed with, interested parties; second, a “shortfall in capacity” has been found of such a serious nature that “significant delays cannot be avoided” and there are no possibilities to resolve these by new or modified infrastructure or operational changes. Once an airport coordinator has been appointed (Article 4), who acts in an independent, neutral, nondiscriminatory, and transparent manner, the process of slot allocation can be considered. 2. Slot Allocation Procedure Slot allocation procedure is based on simple principles. The first is the so-called principle of “use it or lose it” and the second one is the “grandfather rule,” closely linked to the first one. Under the first principle, slots are allocated free of charge to carriers, which, in turn, pay airport charges only upon effective usage of a given slot (Article 8). In the case of an air carrier continuously and effectively using a given slot for a season (reference period), the carrier is then entitled to claim that slot in the next equivalent season, thus acquiring the socalled grandfather rights. An air carrier may retain the assigned slot if a series of slots have been used by it for the operation of scheduled and programmed nonscheduled air services and can demonstrate that the series of slots in question have been operated, as cleared by the coordinator, for at least 80% of the time during the scheduling period for which it has been allocated.2 The non-allocated slots are put into a “slot pool” (Article 10), half of which must be allocated to new entrant carriers that are air carriers requesting, as part of a series of slots, a slot at an airport on any day, where, if the carrier’s request were accepted, it would in total hold fewer than five slots at that airport on that day, or an operator requesting slots for nonstop service between two EU airports where at most two other carriers operate a direct service between those airports or airport systems on that day and holding or having been allocated fewer than four slots at that airport on that day for that non-stop service. (Article 2)3

The remaining slots should be allocated in a “neutral, nondiscriminatory and transparent” manner. If it is not possible

to meet all requests, preference must be given to commercial air services and, in particular, to scheduled and programmed non-scheduled operations, whereas in other circumstances allocation is at the coordinator’s discretion. EEC Regulation No. 95/93, as amended by EC Regulation No. 793/2004, also provides that, in some circumstances, if 80% usage of the series of slots cannot be demonstrated, all the slots constituting that series shall be placed in the slot pool, unless the non-use can be justified for unforeseeable and unavoidable circumstances outside the air carrier’s control, leading to grounding of the type of aircraft used for the air service in question, to the closure of an airport or airspace as well as to the interruption of air services due to action intended to affect these services, which makes it practically and/or technically impossible, or in case of serious financial damage for a European air carrier that determines, as a result, the granting of a temporary license by the licensing authorities pending financial reorganization of the air carrier according to EU Regulation No. 1008/2008 (Article 10.3).4 Thus, the EU legal framework tries to balance competition with protection of the aviation business environment in consideration of the significant role that slots play in the airline business. The outbreak of COVID-19 pandemic an immediate reaction by the European Union (EU), which has extended the exclusion of the “use it or lose it” rule in such cases where, due to the pandemic and health-care measures, the air carrier, for example, faces with a partial or total closure of borders or airspace, or a partial or total closure or reduction of capacity of airports, during a substantial part of the relevant scheduling period or a severe impediment to passengers’ ability to travel with any carrier on any direct route during a substantial part of the relevant scheduling period, including, as well as travel restrictions based on nationality or place of residence, prohibition of all except essential travel or bans on flights from or to certain countries or geographical areas; restrictions of movement or quarantine or isolation measures within the country or region where the airport of destination is located (including intermediate points). In these cases, air carriers could justify the non-utilization of slots for a maximum of two consecutive scheduling periods.5 cinzia ingratoci

480  elgar concise encyclopedia of aviation law 3. Slot Mobility Article 8.a of EEC Regulation No. 95/93, as amended by EC Regulation No. 793/2004, allows so-called slot mobility: the EU has acknowledged the slot’s relevance from the company perspective, setting up a market (first and second levels) for slot trading among air carriers. According to this provision, slots may be transferred by an air carrier from one route or type of service to another route or type of service operated by that same air carrier. Air carriers may also transfer slots between parent and subsidiary companies and between subsidiaries of the same parent company. Exchange of slots, one for one, between air carriers is also allowed. Transfers or slot exchanges must be notified to the coordinator and cannot take effect prior to the express confirmation by the coordinator, attesting they are in conformity with the requirements of the EC Regulation. While EU legislation does not allow the sale of slots, this is partly legal in the United States and common in the United Kingdom.

III. The Proposed “Recast” of the Rules on Slots Before the COVID-19 pandemic, many airports were highly congested. Slot allocation procedures have led to a wide availability of slots for a restricted number of airlines at the most congested airports. The lack of infrastructural capacity has blocked the growth of airports and limited the realization of some important social (continuity of connections) and environmental objectives. According to scholars, the “use-it-or-lose-it rule” is useful for maximizing airports’ profits by reducing demand fluctuations. Airports are interested in the full use of slots, as there are few variable costs and, in addition to takeoff and landing fees, commercial revenues increase with the number of passengers in the airport. In this context, the European Commission issued a new proposal of regulation on common rules for the allocation of slots at EU airports (COM/2011/0827 final – 2011/0391 COD) giving serious consideration to the introduction of market-based mechanisms for the use of airport slots, sustaining that the sale of slots might have a positive impact in terms of efficiency and competitiveness, being able to guarantee wide access to airports through the secondary market. At the same time, allowing slot sale could favor an oligopolistic market cinzia ingratoci

of the most solid carriers, while the current allocation procedure enhances the interest of airports in guaranteeing an optimal use of resources. The implementation of a further level of airport capacity allocation has been hypothesized beyond the EU legislation criteria, linking the slot allocation process to objectives related to the economic and social role of an airport. In particular, special attention should be paid to the social and economic relevance of the airline which the slot is related to: the impact of the slot on competition levels, the environmental results relating to the allocation to one carrier rather than to another, and the overall efficiency in the use of the infrastructures. The use of criteria broader than those currently foreseen by EU legislation will become even more important in the postpandemic phase, where the most congested airports will probably be the first to recover and slots will have to be reassigned. Cinzia Ingratoci

Notes 1. 2.

For an airport be become coordinated. The latest emending EU regulation N. 2022/2038, 19 October 2022, introduces temporary relief from the slot utilization rules at EU airports due to an epidemiological situation or any military aggression. According to Article 2.1, i, of EU Reg. 93/95 ECC, as emended by EC 793/2004 and 2022/2038 EU Reg., air carrier shall mean

 an air transport undertaking holding a valid operating licence or equivalent at the latest on 31 January for the following summer scheduling period or on 31 August for the following winter scheduling period; for the purpose of Articles 4, 8, 8a, 10 and 10a, the definition of air carrier shall also include business aviation operators, when they operate according to a schedule; for the purposes of Articles 7 and 14, the definition of air carrier shall also include all civil aircraft operators.

  In order not to pass on the effects to the carriers of the slowdown in air transport due to the pandemic emergency, a new paragraph 2 bis of Article 8 of Reg. 93/95 CCE, as amended by EU Reg. n. 2022/2038 provides that:  During the period from 30 October 2022 to 28 October 2023, and subject to capacity being available at the airport, a series of slots which was returned to the slot pool in accordance with paragraph 1 of this Article at the end of the scheduling period (the ‘reference scheduling period’) shall, upon request, be allocated for the next equivalent scheduling period to an air carrier which has operated at least five slots of the series in question following the application of Article 10a(7) during the reference scheduling period.



Further measures relating to the assignment criteria due to the pandemic emergency are provided for in Article 8, paragraph 6 bis, introduced by Reg. 2022/2038.

slot allocation  481 3.

4.

5.

According to the new comma b bis of Article 2, added by the new EU Reg. 2022/2038, during the period from 30 October 2022 to 28 October 2023, new entrant carriers would in total hold fewer than seven slots, instead five slots, at that airport on that day. The amending Reg. EU 2022/2038 adds the case in which the air carrier was involved in “judicial proceedings concerning the application of Article 9 of this Regulation for routes where public service obligations have been imposed according to Article 4 of Regulation (EEC) No 2408/92 resulting in the temporary suspension of the operation of such routes”. The Ukraine-Russia War constitutes, by express provision of law, a cause of justification due to an unpredictable and inevitable event independent of the control of the air carrier. In detail, according to the updated paragraph 4 bis of Article 10,

 during the period from 30 October 2022 to 28 October 2023, the non-utilisation of a slot may also be justified by the introduction, by public authorities, of restrictions intended to address any major epidemiological situation, natural disaster or political unrest at one end of a route for which the slot in question was operated or planned to be operated, on condition that those restrictions significantly impact the possibility of, or demand for, travel, and that, on the routes concerned, the restrictions lead to any of circumstances listed in the above mentioned Article.



The emending 2022/2038 EU Reg. added a new Article 10 bis, concerning allocation of slots in response to certain crisis situations according to which:

 During the period from 30 October 2022 to 25 March 2023 […] if an air carrier demonstrates to the satisfaction of the coordinator that it has operated the series of slots that was allocated to it, as cleared by the coordinator, for at least 75% of the time during the scheduling period for which it has been allocated, that air carrier shall be entitled to the same series of slots for the next equivalent scheduling period.



If the data published by Eurocontrol show a contraction of traffic below 80% of the 2019 data for a period of two weeks for epidemiological reasons or war crises, the Commission may adopt delegated acts to modify the percentages of use required for the purposes of the reassignment.  Coordinators have requested to regularly exchange best practices on the implementation of paragraphs 4 and 4a with the aim of ensuring coherent and consistent application across the EU.

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Brecke K., Airport slot allocation: Quo Vadis, EU?, Air and Space Law 36(3) (2011) 183–200. Czerny A., Forsyth P., Gillen D., Niemeier, H.-M., Airport Slots – International Experiences and Options for Reform, Ashgate Publishing Ltd, 2008. De Croo, Slot allocation. An indispensable evil, Eur. Transp. Law (1993) 7. Deiana M., Riflessioni sulla slot allocation, Studi Economico-giuridici, 2005–2008, Napoli (2009) 173. Dempsey P., Airport landing slots: Barriers to entry and impediments to competition, Air & Space Law 20 (2001). European Airport Coordinators Assn., Summary of Steer Davies Gleave Impact Assessment into the EU Slot Regulation (European Airport Coordinators Association Seminar Sept. 29, 2011) http:// euaca​.org/. European Council Regulation (EEC) 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports [1993]. EEC COM (90) 576 final, 18.12.1990 (OJ EC 91/C 43/04). Frühling P., Eyskens W., Current and future issues relating to slot management and mobility in the European Union, Air & Space Law XXIX/2 (April 2004) 29. Gabassi G., Assignment and sale of airport slots: The Monarch Airlines case, Rivista italiana di Diritto del turismo 24 (2018) 498. Giemulla E., Schmid R., Who owns the time? Legal problems regarding slots – A German view, Air & Space Law XVII (1992) 1. Guiomard C., Airport slots: Can regulation be coordinated with competition? Evidence from Dublin airport, Transportation Research, Part. A 114 (2018) 127–138. Haanappell P., Airport slots and market access: Some basic notions and solutions, Air & Space Law XIX, 415 (1994) 198. Jones I., Viehoff I., Marks P., The economics of airport slots, Fiscal Studies 14(4) (1993) 37–57. Kociubińsk J., Regulatory challenges of airport slot allocation in the European Union, Wroclaw Review of Law, Administration & Economics (February 2014) 28. Mendes de Leon P., Some Questions on the Relationship between Slots and Traffic Rights, in Papers of the European Air Law Association twelfth annual conference in cinzia ingratoci

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cinzia ingratoci

diritto dell’economia, dei trasporti e dell’ambiente XIV (2016) 121. Sieg G., Grandfather rights in the market for airport slots, Transportation Research 44(1) (2010) 29–37. Starkie D., Allocating airport slots: A role for the market?, Journal of Air Transport Management (1998) 111–116. Starkie D., Bass T., Humphreys B., A Market in Airport Slots, IEA, The Institute of Economic Affairs, London, 2003. Van Miert E., Slot allocation as an instrument for optimising airport and en route capacity utilization, Eur. Transp. Law (1993) 13.

139. Standards and Recommended Practices (SARPs) See entries: 36. Annexes to the Chicago Convention; 52. The Chicago Convention (1944)

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140. State Aid (Aviation)

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The term “State aid” under European Union Law is not defined in the Treaties of the European Union (EU). It has been explained in decisions of the European Commission (“the Commission”) and by the jurisprudence of the General Court and of the Court of Justice of the European Union, both henceforth also referred to as “the Court.” The European Union regime for controlling State aid is based on Articles 107 and 108 of the Treaty on the Functioning of the European Union (“TFEU”). Article 107(1) TFEU prohibits State aid that distorts or threatens to distort competition by favoring certain undertakings, or the production of certain goods, insofar as they affect trade between Member States. However, this prohibition is not absolute, and Article 107 includes a list of automatic exemptions in paragraph (2), potential exemptions in paragraph (3), and special schemes in subparagraph (3)(e). Finally, two additional exemptions allow the compatibility of State aid with the objectives of the TFEU: Services of General Economic Interest (Art. 106(2) TFEU) and the special derogation of Art. 108(2) (para. 3) TFEU. In its supervisory and enforcement role over State aid, the Commission is bound by the de jure nature of Article 107(2) TFEU – where the Commission is limited to assessing the presence of material conditions. By contrast, under Article 107(3) TFEU, the Commission enjoys discretionary powers in the exercise of the “compensatory justification” test, whereby the negative effects of State aid are weighed against the achievement of common policy objectives. Of particular importance in air transport is subsection 107(3)(c) TFEU, which is used by the Commission in cases of operating, rescue, and restructuring aid to airports and airlines.

I. The Concept of Aid The State aid rules apply only where the beneficiary of a measure is an “undertaking” within the meaning of an entity engaged in an economic activity regardless of its legal status under national law and the way in which it is financed. For a measure to constitute State aid within the meaning of Article 107(1) TFEU, the measure must fulfill simultaneously all the following criteria:

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it is granted through State resources; it provides an advantage to an undertaking; it is selective; and it potentially distorts competition or threatens to distort competition within the internal market.

The first condition that shall be met in order for a measure to constitute aid is that it is granted by an EU Member State or through the Member State’s resources. The use of the term “State” has often been a source of misunderstanding as it leads to the belief that if the resources are granted by subjects that are not formally embedded in the State administration, a measure does not qualify as State aid. However, the term “State resources” includes all resources of the public sector, including resources of intra-State entities decentralized, federated, regional, or other and as well, under certain circumstances, resources of private bodies. In Stardust Marine, the Court further clarified the interpretation of Article 107 TFEU when it held that “State resources” not only need to be at the disposal of the State, but it is also necessary to show that the actual deployment of those resources for the benefit of a particular undertaking can be attributed to some sort of Government decision”. Hence, the Court stated in the Olympic Airways case regarding the non-payment of airport charges by Olympic that the Greek State-owned airline operated as a private undertaking and that the Commission must state clear reasons as to why it considers a measure to be imputable to the State. The second criterion entails that the aid confers an economic advantage on the recipient. That is, an advantage that the recipient would have not enjoyed under normal market conditions. From a EU State aid law perspective, only the effect of the measure on the undertaking is relevant, and not the cause or the objective of the State intervention. Whenever the financial situation of an undertaking is improved as a result of State intervention on terms differing from normal market conditions, an advantage is present. To assess this advantage, the financial situation of the undertaking following the measure should be compared with its financial situation if the measure had not been taken. Since only the effect of the measure on the undertaking matters, it is irrelevant whether the advantage is compulsory for the undertaking in that it could not avoid or refuse it.

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state aid (aviation)  485 Third, the aid must relate to certain undertakings or to a particular type of production of certain goods. Hence, general measures that can benefit the entire economy, such as a decrease in tax rates or the development of infrastructure, do not create a selective benefit. Therefore, if a measure is aimed at the general promotion of the economy and it applies to all undertakings in a specific Member State, it will be exempted by Article 107(1) TFEU as it contributes to providing benefits to all enterprises without distinction and to sustain the economy as whole. Lastly, for a measure to constitute State aid, it is necessary that the measure in question appreciably effects competition on inter-State trade. In order for a measure to fall within Article 107(1) TFEU it is sufficient that there is a potential impact on trade. A measure that grants aid to an undertaking may affect competition and affect trade between Member States, even if the undertaking recipient of the aid exports almost all of its production outside of the European Union. Although an aid measure may be characterized as State aid within the meaning of Article 107(1) TFEU, this qualification does not mean that the aid is prohibited as the measure may deemed to be compatible with Article 107(2) or 107(3) TFEU. 1. The Automatic Exceptions: Article 107(2) TFEU Article 107(2) TFEU states that specific categories of aid are automatically exempted from the prohibition inherent in Article 107(1) TFEU. As provided by Article 108 TFEU, the Commission is under a duty to keep under review all systems of aid. Hence, the Commission is required to ensure that the aid falls within one of the categories and that its operation remains within the limits of the provision. One category of exempted aid that gained relevance in 2020 is that of Article 107(2)(b) TFEU, which concerns aid to alleviate the effects of natural disasters or exceptional circumstances. The Commission qualified the COVID-19 pandemic as an exceptional occurrence due to the restrictive measures imposed by the Member States to keep under control infection rates. Since March 2020, the Commission qualified the COVID-19 pandemic as an exceptional occurrence, not because of the economic consequences as such but in relation to the restrictive measures imposed by the Member

States to keep under control the infection rates of the coronavirus. The legal basis offered by Article 107 (2) (b) allows Member States to provide aid directly linked to the damage caused by the COVID-19 outbreak and proportionate, i.e. the compensation should not exceed what is necessary to make good the damage. In addition, it allows Member States to grant aid to companies in difficulties, such as the case of Alitalia – Società Aerea Italiana in A.S. and TAP Air Portugal, which would otherwise be excluded from the benefit of aid. 2. The Discretionary Exceptions: Article 107(3) TFEU Under Article 107(3) TFEU the Commission may declare four different categories of aid compatible with the internal market. Unlike in the case of Article 107(2) TFEU, the Commission has, under Article 107(3) TFEU, a significant degree of discretion when assessing the compatibility of aid within one of the four categories provided for Following the deepening of the COVID-19 crisis and associated restrictive measures implemented by the Member States, the Commission decided to use Article 107(3)(b) TFEU as a basis for approving aid measures aimed to remedy a serious disturbance in the economy of a Member State. Hence, the Commission approved several measures directly under this provision and also adopted a Temporary Framework compatibility conditions it would apply to the aid granted by Member States under Article 107(3)(b) TFEU.

II. State Aid in the Air Transport Sector The application of State aid rules in the air transport sector was first concentrated in the privatization process of the so-called flag carriers in the 1990s. This process was followed by the emergence of low-cost carriers and the advantageous operating conditions that regional airports across the EU offered to them in the early 2000s. State aid was then involved in the process of consolidation, whereby former flag carriers formed “panEuropean” aviation groups. The applicability of State aid rules in the air transport sector has evolved over time, and the Commission has codified them, primarily, in the 2014 Guidelines on State aid to airports and airlines (the “2014 Guidelines”). The 2014 Guidelines cover mainly three blocks of

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486  elgar concise encyclopedia of aviation law aid: start-up aid to airlines, operating aid to airports, and investment aid to airports. For these types of aid to be compatible, the measure has to fulfill the following cumulative conditions: the measure (1) is necessary, (2) contributes to a well-defined common interest, (3) is the appropriate policy instrument, (4) has an appropriate incentive effect, (5) is limited to the minimum (proportionality), (6) limits as much as possible the distortion on competition, and (7) is transparent. Whether airports with public resources at their disposal may in their dealings with air carriers grant aid to them is central to the Commission’s compatibility analysis when granting aid to airports. An airport should therefore demonstrate that, when setting up arrangements with an airline, it is “capable of covering all costs stemming from the arrangement, over the duration of the arrangement, with a reasonable profit margin on the basis of sound medium-term prospects.” Also, the Commission focuses on the Market Economy Operator Principle (“MEOP”). The MEOP is used by the Commission as a benchmark to assess whether public investments are made under normal market conditions. It involves an assessment of all circumstances surrounding an investment, as to decide whether a rational private investor would have behaved in the same way. Where Member States are able to prove, ex ante, that they acted under the same conditions as a commercial investor, State aid is not involved. 1. Investment Aid to Airports Investment aid mainly covers infrastructure projects. Because smaller airports might face difficulties ensuring their financing without public funding, the Commission identified five categories of airports, ranging from 200,000 to 5 million passengers per annum. The intensity of the investment aid allowed is in inverse proportion to the amount of annual passengers, with no aid allowed for airports with over 5 million passengers per year. Investment aid to regional airports handling up to 3 million passengers per year benefits from an automatic exemption from notification. 2. Operating Aid to Airports Operating aid aims at covering the dayto-day operating costs of airports. The Commission established a transitional period of ten years for granting operational

aid to airports, after which regional airports are expected to be profitable. The amount of operating aid, which intensity depends on passenger numbers, has to be established ex ante as a fixed sum covering the expected operating funding gap, until the transitional period ends in 2024. 3. Start-up Aid to Airlines Start-up aid refers to aid granted to airlines for launching new routes. However, such aid will not be considered to contribute to the common interest if the route is already serviced by high-speed train or from another airport in the same catchment area as defined by the Commission. The airline has to prepare a business plan ex ante showing that the route receiving aid has prospects of becoming profitable without public funding. The aid may cover up to 50% of airport charges for the airline for up to three years. 4. Rescue and Restructuring Aid Rescue aid is liquidity support in the form of loan guarantees or loans for a maximum period of six months. After that period, the aid has to be reimbursed or form part of a restructuring plan or the beneficiary liquidated. The aid cannot be used to finance acquisitions, unless essential for the survival of the beneficiary. An undertaking that has received rescue aid once is not eligible again for a period of ten years (“one-time last-time” principle). Restructuring aid can take any form, as long as it is appropriate, proportionate, and part of a comprehensive restructuring plan limited in time where the beneficiary has a sufficient level of its own contribution. The “one-time last-time” principle also applies and there cannot be government interference in the management. Structural and/or behavioral measures may also be required to limit distortions of competition (e.g., capacity reductions, access to infrastructure through slot divestiture, interlining for competing airlines).

III. Conclusion The liberalization of the EU internal air transport market transformed a sector historically dominated by State-owned airlines into an open market with free competition. In parallel, financial and health crises during the

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state aid (aviation)  487 last two decades have exposed inefficiencies in the air transport industry, including overcapacity, high costs and low productivity. In this process, State aid has helped certain airlines to restructure and become more competitive, as well as having contributed to the development of regional air connectivity by low-cost airlines. The Commission has codified the application of State aid rules in air transport in sector-specific Guidelines, which, with the help of the European Court of Justice, apply to airports and airlines. Alessandro Perrone and Gonzalo Torres Picazo

References Case 173/73 Italy v Commission [1974] ECR 709. Case 730/79 Philip Morris Holland BV v Commission [1980] ECR 2671. Case 84/82 Germany v Commission [1984] ECR 1451. Case C-280/00 Altmark Trans GmbH [2003] ECR I-7747. Case C-419/06 Commission of the European Communities v Hellenic Republic [2008] ECR 2008 p. I-27. Commission Notice on the Enforcement of State Aid Law by National Courts, OJ [2009] C 85/1. Commission Regulation (EC) No 651/2014 of 17 June 2014 declaring certain categories

of aid compatible with the internal market in application of Article 107 and 108 of the Treaty, OJ [2014], l 187/1. Communication from the Commission – Guidelines on State aid to airports and airlines 2014/C 99/03. Communication from the Commission – Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty, OJ C 249, 31.7.2014. Communication from the Commission on a Temporary Framework of state aid measures to support the economy in the context of the COVID-19 outbreak, C(2020) 1863 final. Council Regulation (EU) No, 2015/589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union, OJ L 248 [2015], 9–40. Stephan Hobe, Nicolai von Ruckteschell, and David Heffernan, Cologne Compendium on Air Law in Europe (Carl Heymanns Verlag KG, 2013). Pieter Jan Kuijper, Fabian Amtenbrink, Deirdre Curtin, Bruno De Witte, and Alison McDonnell, The Law of the European Union and the European Communities (Kluwer Law International BV, 2018). John Milligan, European Union Competition Law in the Airline Industry (Kluwer Law International BV, 2017).

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141. Subleasing I. Definition and Basic Characteristics In the context of aircraft assets, including the entire aircraft, engines or other parts of an aircraft, the sublease is a consensual agreement whereby a sublessor, who should have the power to dispose of the affected asset, grants the sublessee the right to use such aircraft asset for aeronautical activities, in exchange for a price, rent, or other kind of consideration, for a certain period of time or of flights. Unless otherwise agreed, the sublessor remains fully liable to the head lessor for all liabilities arising from the head lease. As a sub-species of the lease agreement, a sublease is governed by the contractual terms agreed among the parties and the provisions of the law applicable to such contract. It follows from the above, there is no universal legal definition of subleasing in spite of the international scope of most transactions involving aircraft assets. Only where a transaction has a purely domestic nature, that is, where all parties and assets involved are connected to the same jurisdiction, the parties are entitled to rely on the definition and legal provisions given by the relevant domestic laws, if available. Where this is not the case, the existence of multiple legal systems entails that different, and possibly divergent, definitions of leasing and subleasing may have to be taken into account. Particularly scholars of jurisdictions that follow the civil law system have historically argued about different notions of “aircraft utilization contracts,” the sublease agreement being one of them. Furthermore, the terminology used in the aviation industry contributes to creating additional confusions: clearly defined and classic legal terms such as lease, sublease, charter, and so on are often mixed with practical terms like dry lease, wet lease, aircraft interchange, and others, as scholar’s have pointed out.

II. Context Sublease agreements are of interest to aircraft owners and airlines for multiple reasons: they provide for operational flexibility, allow covering short-term aircraft needs or those arising from the seasonality of traffic, permit the modernization of fleets, widen the possibilities

for manufacturers and financiers to find customers for their aircraft, and so on. Scholars such as Mendes de Leon have pointed out that subleasing allows aircraft operators to reduce their liability under the head lease agreements and can be in the interest of aircraft owners where the sublessee is a reliable and financially strong organization. Nevertheless, even if under a sublease transaction the sublessor remains fully and primarily liable for its obligations to the head lessor of the aircraft asset, a number of issues need to be addressed. When a lessee is in default and the owner or head lessor chooses to exercise remedies, the primary concern is the recovery of possession of the asset. The problem might be found in that third parties, such as sublessees, wet lessees, maintenance organizations, suppliers, personnel, and others, may have a right to possession of or claims against the aircraft asset and thus attempt to block the attempted repossession. Particularly where the sublease transaction refers to a complete aircraft or to one or more engines, the owner or head lessor will therefore want to retain some control to make sure that the asset is protected, that their rights are not affected, and that they will be able to repossess and export the aircraft asset quickly if there is a default. Therefore, sublease agreements are sensitive for aircraft lessors. Hanley, an experienced practitioner, recommends that “prudent lessors should carefully review which subleases” will require their prior consent. This is particularly the case if the sublease involves a change of habitual base or of the state of registration of the aircraft because it may impact the remedies available to the head lessor under the head lease or to the holders of rights in rem over the aircraft asset, such as mortgagees and secured lenders. These transactions must, therefore, be assessed, taking into account the circumstances of each specific case.

III. Main Contractual Provisions concerning Subleasing 1. Restrictions on Further Subleasing According to certain scholars, due to the high value of aircraft assets, leases and subleases are entered into on an intuitu personae basis, that is, taking into account the particular technical, financial, and commercial skills and honorability of the lessee or of the sublessee.

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subleasing  489 This school of thought argues that, precisely due to the intuitu personae nature, the lessee and the sublessee are not entitled to sublease or further sublease the aircraft even if the contract contains no provision in this respect. In practice, it is standard that owners and head lessors include express contractual provisions preventing the lessee and sublessee from further subleasing the aircraft or parts thereof. This is logical if one considers that the owners ultimately bear the adverse consequences for the risks that affect an aircraft directly: non-consensual rights and interests in rem, liability for damage caused to third parties on the ground, salvage costs, etc. The high value of aircraft assets and the complex structures surrounding the financing of this type of asset also make it advisable to restrict the right of the lessee or of the sublessee to further transfer possession of the aircraft.

of contractual clauses, which have almost reached the category of boilerplate clauses. However, they should be carefully assessed in each specific case because sometimes the drafting may be ambiguous or even contrary to the owner’s or head lessor’s interests. Meanwhile, aircraft operators, particularly those that form part of some of the larger groups of airlines, have begun to resist these boilerplate restrictions. It is nowadays not uncommon for airlines to insist in writing down in their contracts a list of pre-approved sublessees that do not require the prior consent of the owner or the head lessor. This is often coupled with certain minimum conditions that the sublessees and the sublease agreements must respect.

2. Exceptions for Wet Leases An exception to these restrictions can often be found in respect of wet lease agreements. Aircraft owners and financiers have an obvious interest in the financial well-being of airlines, and wet leasing the aircraft they operate can be an important source of income for airlines. Hence, while many aircraft lease agreements prohibit or heavily restrict outright dry subleases, they also include contractual provisions that provide more flexibility in connection with wet lease arrangements. Generally, agreements of this kind are allowed when they do not exceed a certain period of time (the term of the head lease being the maximum allowed in any event), do not entail a change of the state of registration of the aircraft, and control of the original lessee is ensured at all times.

4. Mirroring of Head Lease Provisions As with any aircraft lease agreement, the respective rights and duties of the sublessor and of the sublessee should be clearly expressed and allocated. Since head leases commonly contemplate a wide range of covenants that the sublessor will have to abide by, it follows that such covenants are frequently passed on to the sublessee. This applies, in particular, to aspects such as insurance requirements, operational restrictions, maintenance obligations, regulatory compliance, information covenants, compliance with domestic or international sanctions, and similar ones. Owners and head lessors often insist that jurisdiction and choice of law clauses in the sublease agreement mirror those of the head lease, so as to be able to have a common approach in the event of defaults or disputes. Inspection and verification rights in favor of the owner or head lessor of the aircraft are also frequently embedded in the sublease.

3. Permitted Subleases and Subordination Where subleasing is permitted under the head lease, this is generally done subject to compliance with strict requirements, such as the prior approval of the owner or head lessor, a subordination to the head lease, maximum term not to exceed that of the head lease, automatic termination of the sublease upon termination of the head lease for whatever reason, assignment of the sublessor’s rights in the sublease to the head lessor or to the aircraft owner, and others. In the aviation community there is widely accepted language for these kinds

5. Payments of Sublessee In certain scenarios, especially when the sublessor is in financial trouble, owners and head lessors attempt to include stipulations whereby payments due by the sublessee should flow directly to the head lessor instead of to the sublessor. As an additional protection, head lessors may request that the receivables of the sublessor under the sublease agreement be pledged or assigned to the head lessor by way of security, along with any other collateral that the sublessee may have given to the sublessor. These precautions can add an additional layer of complexity to a sergio giménez binder

490  elgar concise encyclopedia of aviation law sublease transaction, which must be reviewed taking into account the various jurisdictions and legal systems involved. 6. Subleases as International Interests A certain degree of comfort can be achieved where the sublessee of an aircraft or engine is domiciled in a country which is a signatory to the 2001 Cape Town Convention and the related Aircraft Protocol. As stated in the Official Commentary to the 2001 Cape Town Convention, a sublease can give rise “to a distinct international interest in favour of the sub-lessor running in parallel with the international interest created by the head lease.” The 2001 Cape Town Convention provides that the aircraft asset and the sublease meet the requirements to create such an international interest foreseen in the said Convention and in the Aircraft Protocol. This clear statement should, however, not hide the fact that sometimes complex questions of priority of international interests must be sorted out. Usually, the international interest created by the sublease will be competing with other existing interests created by the owner, the finance parties, or the head lessor. In principle, subleases are considered as “subinterests” for the purposes of the 2001 Cape Town Convention and are, therefore, of lower rank to the higher-tier interest from which they derive. As a general rule, a sublessee should thus not, by being the first to register its interest in the International Registry, have priority over the head lessor. However, in the Official Commentary to the 2001 Cape Town Convention, Goode offers scenarios in which the sublessor’s interest has priority over the international interest of the head lessor, particularly in the context of sale and lease-back transactions. There are situations in which such rank subordination may not be entirely clear. As mentioned above, this can be solved through subordination agreements and similar mechanisms. Thus, the parties to a sublease transaction are advised to review and agree upon the order of registrations of the various international interests at the International Registry because such an order may affect the priority of the international interests. Additional examples of conflicting situations can be found in the Practitioners’ Guide to the Cape Town Convention and the Aircraft Protocol, referenced below. sergio giménez binder

The 2001 Cape Town Convention does not offer a solution for the position of the sublessee in situations where the head lessor terminates the head lease. In this case, according to Goode, the rights of the sublessee will have to be determined by the law applicable to the contract. Further problems that may need a detailed assessment arise when the sublessee is domiciled in a country that has not ratified the 2001 Cape Town Convention and the Aircraft Protocol. In these situations, the parties will have to resort to additional mechanisms to protect the head lessor’s repossession rights, such as deregistration powers of attorney and the like.

IV. Applicable Law and Jurisdiction Issues The jurisdiction and choice of law clauses in the sublease agreement often mirror those of the head lease. There is, however, no mandatory rule that would impose this. Therefore, it is perfectly possible that the head lease and the sublease are governed by the laws of different States and that disputes arising from these relationships must be solved in different jurisdictions. These situations are relatively common in connection with wet lease agreements, where the sublessor retains operational control over the aircraft and the potential disputes with the sublessee are generally of a purely commercial nature and do not affect the possession or control over the aircraft. To avoid potentially conflicting situations and complex international litigation scenarios, in dry subleases over aircraft assets it is advisable that the choice of law and jurisdiction clauses follow as much as possible those of the head lease. Of course, this requires an assessment about the validity and enforceability of those clauses under all jurisdictions involved, and particularly those of the head lessor and the sublessee. Even where the choice of law and jurisdiction clauses are identical in the head lease and in the sublease, the fact that aircraft cross international borders means that no absolute certainty can be achieved. The issues arising from repossession disputes or insolvency situations are often beyond the scope of such clauses and of party autonomy and may be governed by the laws of the State in which the aircraft is

subleasing  491 located at any given time or the insolvency laws of the debtor’s country of incorporation or domicile.

V. Conclusions Sublease agreements pertaining to aircraft assets are widely used in the aviation industry because they provide an often-needed flexibility to operators and owners alike. This type of transaction has become standardized to a large extent, but the international nature that lies in the very heart of the aviation industry creates a number of risks and challenges that must be dealt with. A number of mechanisms have been developed to reduce these risks and eliminate uncertainty as much as possible, but each such transaction should be reviewed on its own merits, taking into account the specific circumstances of the parties, the aircraft asset, the jurisdictions involved, and other relevant factors. Sergio Giménez Binder

References Aviation Working Group, Practitioner’s Guide to the Cape Town Convention and the Aircraft Protocol, published on March 2023, freely accessible under awg.aero/w p - cont ent /uploads/2023/ Practitioners-Guide-2023.pdf. Brad Johnson, ‘Subject and Subordinate Clauses in Subleasing Provisions’ (Air

Lease Review, 29 February 2016), https://airleasereviewblog​.com​/category​/ subleasing/, accessed 24 April 2022. Donal Patrick Hanley, Aircraft Operating Leasing – A Legal and Practical Analysis in the Context of Public and Private International Law (2nd ed., Kluwer Law International, 2017). Ignacio Arroyo Martínez, Curso de Derecho Aéreo (1st ed., Ed. Thomson Civitas, 2006). James Collins & Others, ‘Aftershock: Considering Recent Themes in Aircraft Operating Leases’ (International Comparative Legal Guides, published by Global Legal Group), https://iclg​ .com​ / practice​-areas​/aviation​-finance​-and​-leasing​ /3​-aftershock​-considering​-recent​-themes​-in​aircraft​ -operating​ -leases, accessed on 24 April 2022. José Daniel Parada Vázquez, Derecho Aeronáutico (1st ed., 2000). Luis Tapia Salinas, Derecho Aeronáutico (2nd ed., Bosch Casa Editorial, S.A., 1993). Mª José Morillas Jarillo, Mª Victoria Petit Lavall & Mª Jesús Guerrero Lebrón, Derecho Aéreo y del Espacio (Ed. Marcial Pons, 2014). Pablo Mendes de Leon, Introduction to Air Law (Kluwer Law International, 2017). Prof. Sir Roy Goode, Convention on International Interests in Mobile Equipment and Protocol Thereto on Matters Specific to Aircraft Objects – Official Commentary (4th ed., Unidroit, 2019).

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142. Sustainability in Aviation I. Introductory Remarks The concept of sustainability is part of the modern social culture as it draws attention to the fact that economic development and commerce should be pursued and achieved without harming the environment. The concept is based on the efficient use of natural resources, on the reduction of energy waste, on recycling and reuse, and on meeting the needs of future generations. Therefore, sustainable growth is a process with economic, financial, commercial, and industrial dimensions related to the management of several aspects. In particular, sustainability has three main components, related and functional to each other: environmental protection, economic growth, and social development. These concepts should be managed in a balanced way so as to ensure that the sustainable development of human activities does not harm equally important interests. Indeed, meeting economic expectations in balance with environmental and social sensitivity is the main objective of sustainability itself. Since sustainability is a core interest in the structuring of a society, creating an appropriate balance among economic, social, and environmental objectives, while endeavoring to ensure profitability and efficiency, represents the ultimate goal to enhance sustainable development. Therefore, progress toward sustainability in various sectoral business can be achieved by implementing best practices in each relevant dimension.

II. Principles and Best Practices of Sustainability in the Aviation Sector Sustainability in aviation refers to the efforts to reduce the environmental impact of the aviation industry and to make it more sustainable. The aviation sector has been developing the concept of sustainability since the early 1970s and, since the aviation industry is a major contributor to greenhouse gas emissions, pressure has grown on the industry to reduce its carbon footprint and minimize its environmental impact.

Reducing the environmental impact of the aviation industry is a key element in tackling the challenge of ensuring a cleaner, quieter, and smarter future for the industry. Aircraft used in the industry constitute 2% of the total emission share in the world. This rate is predicted to reach 3% by 2050; therefore, various measures have been taken to reduce the increase in greenhouse emissions, e.g., measures incentivizing the use of sustainable fuels.

III. International Regulatory Framework From an international perspective, setting standards through the cooperation of international organizations is crucial for the sustainable development of the aviation sector. In particular, the need to establish provisions addressing the negative aspects of civil aviation, such as pollution and the environmental impact of aviation operations, gradually became a serious concern at an international level with the introduction of the first generation of jet aircraft and the acceleration of their use in international flights. The London Noise Conference, also known as the International Conference on the Reduction of Noise and Disturbance Caused by Civil Aircraft, was one of the first conventions on the topic as it was held in November 1966 with the goal of achieving a global resolution through the use of ICAO’s competences and powers. Consequently, the Fifth ICAO’s Air Navigation Conference, held in Montreal in November 1967, issued some recommendations on the matter for the following years. Moreover, with its mandate to adopt and amend international Standards and Recommended Practices (SARPs) governing the various issues affecting the international aviation industry, the ICAO strives to achieve the Chicago Convention’s objectives of ensuring uniformity in regulations, standards, and procedures in all areas of the aviation industry. ​​​​​​​​​​​With particular regard to sustainability and environmental protection in the aviation sector, Annex 16 to the Chicago Convention – Environmental Protection, Volume IV, Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) – was adopted by the Council of ICAO on 27 June 2018.

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sustainability in aviation  493 Annex 16 is divided into: 1. Volume I – Aircraft Noise. This volume contains the Standards and Recommended Practices (SARPs) for aircraft noise certification. It also covers international specifications relating to aircraft noise measurement and evaluation methods; 2. Volume II – Aircraft Engine Emissions. This volume contains SARPs for aircraft engine emissions certification; 3. Volume III – Aeroplane CO2 Emissions; 4. Volume IV – Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). Subsequently, four Environmental Technical Manuals were developed by the ICAO for the implementation of Annex 16: 1. Procedures for the Noise Certification of Aircraft, promoting uniform application of the technical methods of Annex 16 and giving States direction on the technical procedures to be utilized for noise certification; 2. Emissions Certification of Aircraft Engines, promoting uniformity in the implementation of the technical proce­ dures of Annex 16, Volume II, so that the same standard of stringency is applied by all certificating authorities and that the same criteria for acceptance in approving applications for the use of equivalent pro­ cedures are used. It also provides guid­ ance regarding the technical procedures to be used for emissions certification; 3. CO2 emissions certification of aeroplanes, Volume III of Annex 16 is intended to encourage uniformity in the application of its technical procedures by promoting: (1) guidance to certification bodies, applicants, and other interested parties in relation to the intended intent and degree of rigor of the Annex’s Standards; (2) information on the precise procedures that are deemed appropriate to prove compliance with those Standards; and (3) guidance on processes outlined in Annex 16, Volume III’s appendices that may be replaced with equivalent procedures that successfully produce the same CO2 emissions evaluation measure;

4. demonstrating compliance with the Carbon Offsetting and Reduction Scheme for International Aviation, sought to encourage consistency in the application of Annex 16, Volume IV’s technical procedures by providing: (1) clarification to States, aircraft operators, verification organizations, and other interested parties about the intended meaning of the Standards in the volume’s most recent edition; (2) instruction on specific methods deemed sufficient for demonstrating compliance with those Standards; and (3) corresponding procedures that may be used in lieu of those specified in Annex 16, Volume IV. In addition to Annex 16 and subsequent SARPs, to promote sustainability in aviation ICAO has developed Standards and Recommended Practices for reducing emissions from aviation, including the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). CORSIA is a voluntary market-based measure that aims at offsetting emissions from international aviation by encouraging the development of carbon credits. Under CORSIA, participating countries agree to reduce their emissions from international aviation to a certain level, and any emissions above that level must be offset through the purchase of carbon credits. In addition to CORSIA, several other initiatives and programs aim at promoting sustainability in aviation. These include the Air Transport Action Group (ATAG), which is a coalition of organizations working to reduce the environmental impact of the aviation industry, and the Sustainable Aviation Fuel Users Group (SAFUG), which promotes the use of sustainable aviation fuels. More recently, with regard to sustainable development of the sector, the ICAO Assistance, Capacity-Building and Training for Sustainable Aviation Fuels (ACT-SAF) program was introduced informally on 1 June 2022 at the ICAO headquarters in Montreal. According to ICAO’s No Country Left Behind initiative, the 2050 ICAO Vision for SAF, and the three main pillars of sustainable development recognized by the United Nations, namely, economic, social, and environmental, ACT-SAF will give States the opportunity to ottavia carla bonacci

494  elgar concise encyclopedia of aviation law realize their full potential in SAF development and deployment. The most significant potential CO2 reductions by 2050 (up to 55%) come from cleaner fuels and energy sources, according to the report of the ICAO Committee on Aviation Environmental Protection (CAEP) on the feasibility of a long-term global aspirational goal (LTAG) for international civil aviation CO2 emission reductions. A further 21% CO2 reduction from new aircraft technology is anticipated and an additional 11% reduction is expected from operational improvements. Together with its regional offices and Technical Cooperation Bureau, the ICAO will lead the ACT-SAF program to be implemented in ICAO contracting States.

IV. European Regulatory Framework In December 2021, the European Commi­ ssion issued COM(2020) 789, Strategy for Sustainable and Intelligent Mobility: Putting European Transport on the Path to the Future. The document sets out the actions needed so that each transport mode can contribute to to achieve the goals set out by the European Green Deal: to reduce greenhouse gas emissions by 55% by 2030 and to make Europe the world’s first climate-neutral region by 2050. For civil aviation, the strategy sets the ambitious goal of making large zero-emission aircraft available on the European market by 2035. In particular, according to the Commission, more efficient Air Traffic Management, e.g., through the Single European Sky, can help reduce the climate impacts related to non-CO2 emissions in the aviation sector. The main measures proposed in this regard are carbon pricing and the simultaneous reduction of emission allowances allocated free of charge to airlines within the European Emissions Trading System (ETS) through the revision of the ETS Directive in 2021. Furthermore, the ReFuelEU Aviation initiative will promote the production and deployment of sustainable aviation fuels. As stressed by European Union (EU) institutions, the need to use alternative fuels cannot be ignored institutionally, politically, or legally, considering that fuel efficiency, the reduction of dependence on oil, and the reduction of CO2 emissions are the main factors by ottavia carla bonacci

which the aviation industry can contribute to the fight against global warming. In this regard, it should be considered that SAF significantly reduce CO2 emissions compared to conventional fossil fuels. Indeed, as sa clean alternative to fossil kerosene fuels, SAF are the most sustainable fuel alternative to be used in the aviation sector, since they derive from sustainable sources such as waste oils of biological origin. The first commercial passenger flight to be flown on sustainable fuels was carried out in January 2021, thus playing an important role in the development of the use of sustainable synthetic kerosene as a reliable alternative to fossil-based fuels and incentivizing the aviation industry to use alternative energy sources. Moreover, since 2012, the EU ETS has incorporated CO2 emissions from aircraft. All airlines operating in Europe, whether they are European or not, must comply with the EU ETS, which mandates that they track, report, and verify their emissions as well as surrender allowances for those emissions. They receive tradeable allowances that cover a specific amount of annual emissions from their flights. The approach has so far helped reduce the aviation industry’s carbon footprint by more than 17 million tons annually, with compliance accounting for more than 99.5% of emissions. Operational initiatives, such as modernizing and enhancing air traffic control technologies, processes, and systems, in addition to market-based policies like the ETS, also help to lower aviation emissions. In this regard, it is worth mentioning that the original intent of Directive 2008/101/ EC, as subsequently amended, was to cover emissions from flights into and within the European Economic Area (EEA). According to the European Court of Justice, this strategy is acceptable under international law. However, the EU chose to encourage the International Civil Aviation Organization’s development of a global measure by limiting the EU ETS’s application to flights inside the EEA until 2016. Following the 2016 ICAO Assembly’s approval of a Resolution on global measures – the A39-1 Resolution, “Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection, General Provisions, Noise, and Local Air Quality” – the EU has chosen

sustainability in aviation  495 to keep the EU ETS’s geographic scope restricted to flights within the EEA. In light of the global events connected to the operationalization of CORSIA, a renewed evaluation of the EU ETS for aviation will be conducted. The next assessment should take into account how to amend the EU ETS laws in order to include the global measure into EU law. The EU ETS’s original full scope will be resumed in 2024 in the absence of a new amendment.

V. Concluding Remarks In conclusion, sustainability in aviation is an important issue, and several legal frameworks and initiatives are in place to promote more sustainable practices in the aviation industry. Since aviation is one of the fastest-growing sources of greenhouse gas emissions, both at EU and international levels, several actions to reduce aviation emissions are currently implemented with the main objective to develop measures with global reach. These measures include CORSIA, ATAG, and SAFUG, all of which aim to reduce the environmental impact of aviation activities

and to make the overall industry more sustainable. Ottavia Carla Bonacci

References Airport Council International, ACI-NA Sustainability Policy Statement, Effective 02.10.17. Environmental Sustainability Measures for Airports by Maha Mousavi Sameh & Juliana Scavuzzi. European Commission has issued COM(2020) 789, Strategy for Sustainable and Intelligent Mobility: Putting European Transport on the Path to the Future, 9 December 2020. Global Aviation and Our Sustainable Future, International Civil Aviation Organization Briefing for RIO +20. h t t p s: // i a t a ​.o r g​. x y 2 4 01​.c o m ​/ p ol ic y​/ environment ​ / Pages ​ /aircraft​ - noise​ . aspx​ .html. IATA, Sustainable Aviation Fuel Roadmap, 2nd edition 2015, Montreal, Geneva. IATA, Guidance Material for Sustainable Aviation Fuel Management. Liberalisation of Air Transport, International Transport Forum.

ottavia carla bonacci

143. Tariffs (Tariff) I. Definition A broadly defined plural noun used to describe taxes, charges, or duties raised by the government of importing (but sometimes exporting) countries on a particular category or class of imported or exported goods and services (Cambridge Dictionary, 2019). The etymology of the word is broadly considered to be of Arabic origin, from the word arrafa (to notify), evolving via French from the Italian word tariffa. Tariffs can be calculated in a number of ways, but typically they are based on one or a combination of three “types”: ad valorem tariffs are charged according to value, one example being the UK import VAT charged as a percentage of the value of goods imported as opposed to other factors such as quantity. The second type of tariff is just that, a specific tariff, imposed based on quantity (either weight or volume). The third common type is the tariff rate quota, which imposes a set tariff up to a set threshold of goods by volume or value beyond which the tariff rate could increase. The purpose, application, and policy of tariffs as charges raised by governments is inherently and inextricably influenced by functional economics and trade politics. Tariffs can be used by States as a protective shield to safeguard or nurture domestic manufacturing economies and/or specific industries with ethos ranging from domestic employment protectionism to addressing national security concerns by ensuring certain key industries survive and stay active within a given State. From shield to sword tariffs can be seen in effect in trade “wars” where nations compete with each other with ever-increasing tariffs on imports of another’s goods.

II. Examples of Application 1. Trade Wars The most notable recent, large-scale example is the US-China trade war, which escalated from 2018 under which the United States and China have each imposed successive “rounds” of tariffs totaling hundreds of billions of USD in direct monetary effect (BBC News, 2020). While desired effects of such measures may be to stimulate the purchase of US manufactured goods and services, the

reality in a product supply restricted environment (e.g., high-tech computer components) is that the customer pays a higher amount for the required goods, thus driving inflation and, in effect, harming the importer’s economy with the consumer facing restricted supply and raised prices. Sometimes tariffs have been used to counter the impact of another nations deemed oversupply (or “dumping”) of certain commodities (steel for example) into the global market. In 2016 the United States raised import tariffs on Chinese steel to 522% in an effort to counter such a deemed oversupply of Chinese steel. Use of tariffs in this way is far from one sided and most major economies have deployed such protectionist strategies in recent years. Nor is such an application unique as tariffs have often in the past been used in a sociopolitical and economic context. The interwar years between 1921 and 1936 marked a period where the United States continued to adopt high tariffs, on the one hand, with the ostensible aim of protection of infant industry but, on the other, as an obvious revenue source for the US federal government (Office of the Historian, n.d.). 2. Preferred Trade Practices In contrast to the above, tariffs can be seen in a different light in the context of preferred trade practices. One example being the granting of preferential customs tariffs rates for imports from certain countries or territories outside of the United Kingdom given effect by the Taxation (Cross-Border Trade) Act of 2018. This statute gave rise to the UK Generalised Scheme of Preferences whereby documented trade preferences reduce or remove rates tariffs on imports from eligible developing countries into the United Kingdom. In the United Kingdom this is set within three frameworks. The first is set for countries that the UN classifies as Least Developed Countries. Imports from these countries have quota-free access and zero-rated tariffs on all goods other than arms and ammunition. The second category is known as the General Framework and is for countries that the World Bank classifies as low-income and lower-middle-income countries (GOV.UK, 2020). Imports from these countries have reduced rates of import duty on certain goods. Finally there is the Enhanced Framework, which applies to countries that are classified by the World Bank as low-income and lower-middle-income countries economically but deemed vulnerable

496

tariffs (tariff)  497 due to a lack of export diversification and a low level of integration with the international trading system. These countries must also implement 27 conventions relating to human and labor rights, the environment, and good governance. Imports from these countries have a nil rate of import duty on certain goods outlined in the UK GSP tariff rates. The United Kingdom preferred trade regime is an example of how tariff controls can be used as a precision tool to encourage and develop emerging trade economies of other countries. 3. Global Health As a final example, in the global medical supplies industry, reduction or removal of tariffs has been used to facilitate rapid distribution of vaccines in support of efforts to mitigate the global COVID-19 pandemic (Office of the United States Trade Representative, n.d.).

III. Role of the World Trade Organization in Oversight and Dispute Resolution – the Airbus-Boeing Dispute The global tariff regime falls under the oversight and to some extent control of the World Trade Organization (WTO). The WTO is headquartered in Geneva, Switzerland, and it was established on 1 January 1995 with the overall stated objective to enable members to use trade as a means to raise living standards, create jobs, and improve lives. With 164 members, the WTO represents 98% of world trade (World Trade Organization, 2013). One of several stated primary activities of the WTO is negotiating the removal of obstacles to trade (such as import tariffs) and agreeing on rules governing the conduct of international trade (e.g., antidumping, subsidies, product standards, etc.). The WTO was preceded by the General Agreement on Tariffs and Trade (GATT). From 1948 to 1994, the GATT provided the rules for much of world trade and presided over periods that saw some of the highest growth rates in international commerce. The WTO further expanded the application of the GATT to extend to trade in both goods and services. Simply put, both the GATT and WTO are examples of trade agreements that invoke the regulation and application of tariffs to bring nations together to determine economic policy. One of the

WTO’s functions is to intervene and actively manage international trade disputes. A long-running example and one of note in the global aviation industry is the dispute between the European Union (EU) and the United States over large civil aircraft (LCA; also known as the Airbus-Boeing Dispute). It is the longest running dispute in the history of the WTO. In 2004, the United States filed a case at the WTO against the EU, arguing that the EU was illegally subsidizing the European LCA manufacturer Airbus (European Commission, 2021). The EU countered when it filed a complaint against the United States in May 2005 for what it charged as its unlawful support of Boeing. Following WTO decisions, both the United States and the EU imposed punitive tariffs on each other’s exports, affecting in total a value of 11.5 billion dollars of trade. As a result, EU and US businesses have had to pay over 3.3 billion dollars in tariff duties. Under the understanding reached on a cooperative framework for large civil aircraft, the United States and EU expressed their intention to establish a Working Group on large civil aircraft led by each side’s respective minister responsible for trade, provide financing to large civil aircraft producers on market terms, provide research and development (R&D) funding through an open and transparent process and make the results of fully government-funded R&D widely available, to the extent permitted by law, not to provide R&D funding as well as specific support (such as specific tax breaks) to their own producers that would harm the other side, collaborate on addressing non-market practices of third parties that may harm their respective large civil aircraft industries, and continue to suspend application of their tariff countermeasures for a period of five years, avoiding billions of euros in tariff duties for importers on both sides of the Atlantic. The two sides recently agreed to continue discussions to operationalize their intentions regarding financing and research and development funding as well as specific support for large civil aircraft.

IV. Concluding Remarks Examples have been given revealing tariffs as mechanisms in a wide range of applications from revenue generation to trade control to industry disputes. In societies evolving ben graham-evans

498  elgar concise encyclopedia of aviation law toward the ideal of a free-market economy, tariffs may be viewed as centralized economic intervention mechanisms for revenue generation, as shields to protect specific industries or, indeed, whole nations, as a sword or corrective remedy to fix distortions in trade, or even in a punitive function in the context of global trade wars. Finally, manipulation of tariffs can be used in a positive light, such as in the field of global health emergencies as found in the recent COVID19 pandemic. Ben Graham-Evans

European Commission. (2021). EU and US Take Decisive Step to End Aircraft Dispute. [online] https://ec​.europa​.eu​/commission​/ presscorner​/detail​/en​/ip​_21​_3001. GOV.UK. (2020). Trading with Developing Nations. [online] https://www​.gov​.uk​/ government ​ / publications ​ / trading​ -with​ -developing​-nations. Office of the Historian. (n.d.). Protectionism in the Interwar Period. [online] https:// history​. state​.gov​/milestones​/1921​-1936​/ protectionism. Office of the United States Trade Representative. (n.d.). COVID Exclusions. [online]  https://ustr​ . gov​ / issue​ - areas​ / References enforcement ​ /section​ -301​ -investigations​ BBC News. (2020). A Quick Guide to the /section​ -301​ - china​ - technology​ - transfer​ US-China Trade War. [online] https://www​ /china​ - section​ -301​ - tariff​ - actions​ - and​ .bbc​.co​.uk​/news​/ business​- 45899310. -exclusion​-process​/covid​-exclusions. Cambridge Dictionary. (2019). Tariff. [online] World Trade Organization. (2013). What is https://dictionary​.cambridge​.org​/dictionary​ the WTO? [online] https://www​.wto​.org​/ /english​/tariff. english​/thewto​_e​/thewto​_e​.htm.

ben graham-evans

144. The Tokyo Convention (1963) See entries: 11. Air Piracy and Crime; 24. Aircrew; 31. Airport Security; 40. Aviation Law; 84. Hijacking of Aircraft; 90. International Aviation Law; 130. Sabotage of Aircraft; 147. Unlawful Interference with Aviation; 150. Unruly Passengers

499

145.  Traffic Rights See entry: 74. Freedoms of the Air

500

146. Transit Rights See entries: 12. Air Services Agreements; 52. The Chicago Convention (1944)

501

147. Unlawful Interference with Aviation I. Aviation Security under International Law From the first recorded aircraft hijacking in Peru in 1937 through the hijackings of the 1960s to the horrifying events of 11 September 2001, and the Islamic State’s bombing of an airport in Brussels in 2016, aviation security is a matter of inherent international salience. Unsurprisingly, then, the International Civil Aviation Organization (ICAO) – a specialized agency of the United Nations – has implemented a number of measures designed to prevent and suppress all acts of unlawful interference against civil aviation throughout the world. Several key multilateral conventions advance this objective: ●

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Tokyo Convention of 1963, formally known as the “Convention on Offenses and Certain Acts Committed on Board Aircraft” (https://www​ .icao​ .int ​ / Meetings​ / LC35​ / Refererences​ / Tokyo​%20Convention​.EN​.FR​. SP​.pdf). This instrument relates to “acts which, whether or not they offences, may or do jeopardize the safety of aircraft or of persons or property therein, or which jeopardize good order and discipline on board”; Hague Convention of 1970, formally titled the “Convention for the Suppression of Unlawful Seizure of Aircraft” (https:// t reaties​ . un​ . org ​ / doc​ / db​ / Ter ror ism ​ / Conv2​-english​.pdf). This instrument established hijacking as an international “offense” that “each contracting State … [will] make … punishable by severe penalties.” Additionally, the Hague Convention is expansive with respect to jurisdiction, requiring every contracting State to “take such measures as may be necessary to establish its jurisdiction over the offense in the case where the alleged offender is present in its territory and does not extradite him”; Convention for the Suppression of Unlawful Acts against the Safety

●

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502

of Civil Aviation (Montreal 1971). Principally an anti-sabotage instrument, this treaty states that “[a]ny person commits an offence if he unlawfully and intentionally performs an act of violence against a person on board an aircraft; destroys an aircraft in service; places or causes to be placed on an aircraft a device or substance which is likely to destroy the aircraft; destroys or damages air navigation facilities or interferes with their operations; or communicates false information that endangers the safety of an aircraft in flight” (https://treaties​ .un​.org ​/doc​/ Publication ​/ UNTS​/ Volume​ %20974 ​ / volume ​ - 974 ​ - I ​ -14118 ​ - english​ .pdf); Annex 17 of the Chicago Convention on Civil Aviation of 1944. Requiring each member State, in addition to many aspects of the above conventions, to “have as its primary objective the safety of passengers, crew, ground personnel and the general public in all matters related to safeguarding against acts of unlawful interference with civil aviation,” including by establishing national civil aviation security programs; Montreal Protocol of 1988. Extending to airports the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal 1971); Convention on the Marking of Plastic Explosives for the Purpose of Detection (Montreal Convention of 1991). Among other provisions, requiring “[e]ach State Party shall take the necessary measures to exercise strict and effective control over the possession and transfer of possession of unmarked explosives” (https://treaties​.un​.org​/doc​/db​/ Terrorism​/ Conv10​-english​.pdf); Montreal Protocol of 2014. The Montreal Protocol 2014 amends the Tokyo Convention “The Protocol addresses the issue of rising incidents of unruly and disruptive behaviour on board aircraft by significantly improving the ability of States to expand jurisdiction over relevant offences and acts to the State of landing and the State of the operator”  (https://www​.icao​.int​/ Newsroom​ /Pages​/ Entry​-into ​-force​-of​-the​-Protocol​ -to​-Amend​-the​- Convention​-on​-Offences​ -and​- Certain​-Other​-Acts​- Committed​-on​ -Board​-Aircraft-​.aspx).

unlawful interference with aviation  503

II. Case Study Given the directive in the above-referenced international treaties that individual States address aviation security as part of their domestic laws, the following section discusses US aviation security law as an example of both the range of issues that constitute “unlawful interference with aviation” as well as the particular rules under each category. 1. Destruction of Aircraft Often, the domestic laws of a State track the conventions detailed above. US domestic law punishes by fine and imprisonment the willful destruction of aircraft or aircraft facilities along several dimensions. More specifically, federal law punishes anyone “who sets fire to, damages, destroys, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign commerce” 18 U.S.C. § 32(a)(1)). This US law additionally reinforces language in the Montreal Convention of 1991 by disallowing the placement of “a destructive device or substance in, upon, or in proximity to, or otherwise makes or causes to be made unworkable or unusable or hazardous to work or use, any such aircraft, or any part or other materials used or intended to be used in connection with the operation of such aircraft” 18 U.S.C. § 32(a)(2)). Also in line with Montreal 1971, US law prohibits the communication of “information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safety of any such aircraft in flight” 18 U.S.C. § 32(a)(7)). US law also governs acts committed on non-U.S. aircraft, including “an act of violence against any individual on board any civil aircraft registered in a country other than the United States while such aircraft is in flight, if such act is likely to endanger the safety of that aircraft” 18 U.S.C. § 32(b)(1)). 2. Jurisdiction In line with the Hague Convention of 1970, US law explicitly addresses the challenging issue of jurisdiction in the context of aviation security. Notably, where a crime is committed is a pivotal consideration in aviation law as criminal convictions related to aviation require allegations of damage or interference with

aircraft in the “special aircraft jurisdiction of the United States” (18 U.S.C. § 32(a)(1)). This is defined as an “aircraft in flight” (49 U.S.C. § 46501(2)), which is further defined as encompassing the time “from the moment all external doors are closed following boarding through the moment when one external door is opened to allow passengers to leave” (18 U.S.C. § 46501(1)(A)). In this context, an accused is necessarily convicted of attempting to damage or disable an aircraft when it is either flying or else ready to take off or arriving at a destination with people on board (United States v. McGuire, 706 F. 3d 1333 (11th Cir. 2013)). 3. Interference with Flight Crew Members and Attendants Assaulting, threatening, or intimidating a flight crew member while aboard an aircraft in the “special aircraft jurisdiction” of the United States, and thus interference with the performance of that crew member’s duties or interference that lessens the ability of that crew member to perform his/her duties, is punishable under US statutory law (49 U.S.C. § 46506). See also United States v. Meeker, 527 F.2d 12 (9th Cir. 1975). The law specifically provides: An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both. However, if a dangerous weapon is used in assaulting or intimidating the member or attendant, the individual shall be imprisoned for any term of years or for life.

49 U.S.C. § 46504. A violation of the statute is a “general intent crime,” meaning prosecutors need not establish a specific intent to intimidate or to interfere with the flight crew member or attendant. See United States v. Grossman, 131 F.3d 1449, 1451–52 (11th Cir. 1997). 4. Air Piracy (Hijacking) As introduced above, the United States and 187 other States are a party to the Convention for the Suppression of Unlawful Seizure of timothy ravich

504  elgar concise encyclopedia of aviation law Aircraft entered into force in October 1971. An individual convicted of committing or attempting to commit aircraft piracy under this treaty, as applied under US national law, will be imprisoned for at least 20 years or put to death or imprisoned for life if the death of another individual results from the commission or attempt (49 U.S.C. §46502(a)(2)). In this context, “air piracy” means “seizing or exercising control of an aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force or violence, or any form of intimidation, and with wrongful intent” (18 U.S.C. § 46502(a)(1)(A)). As a jurisdictional matter, an attempt to commit aircraft piracy falls within the special aircraft jurisdiction of the United States even if the aircraft is not in flight at the time of the attempt provided the “aircraft would have been in the special aircraft jurisdiction of the United States had the aircraft piracy been completed” (18 U.S.C. §46502(a)(1)(B)). Alternatively, for air piracy taking place outside the special aircraft jurisdiction, jurisdiction nevertheless exists if: (1) a national of the United States was onboard the aircraft; (2) an offender is a US national; or (3) the offender is afterward found in the United States (18 U.S.C. § 46502(b)(2)). 5. Lasers Increasingly, and not including military uses of lasers, the nefarious use of lasers by civilian presents a threat to aviation security. The United Kingdom’s Civil Aviation Authority keeps an accounting of such incidents, for example: https://www​.caa​.co​.uk​/safety​-initiatives​-and​ -resources​/aviation​-safety​-review​/lasers/. Like the United Kingdom, the United States outlaws the knowing aiming of the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or at the flight path of such an aircraft. Doing so is a statutory offense punishable by fine or imprisonment of not more than five years (18 U.S.C. § 39A(a)). The law carves out certain exceptions, e.g., for an individual using a laser signaling device to send an emergency distress signal or an authorized individual using a laser in the conduct of research and development (18 U.S.C. §39A(c)–(d)). 6. Foreign Sovereign Immunities Act States are generally immune from the jurisdiction of the courts of other States. However, pursuant to the Foreign Sovereign Immunities timothy ravich

Act (“FSIA”) of 1976, a foreign sovereign nation, including its political subdivisions, agencies, or instrumentalities, is amenable to suit in US courts. This is so because the FSIA creates an exception to the general grant of sovereign immunity to foreign States, conferring jurisdiction over foreign States that sponsor terrorism for certain acts that cause personal injury or death if either the claimant or victim was a citizen of the United States at the time of the act. See 28 U.S.C. § 1605(a)(7). The FSIA imposes two preconditions upon the exercise of subject matter jurisdiction by courts over foreign States: (1) the foreign State must have been designated a State sponsor of terrorism at the time the acts occurred, unless later so designated as a result of such act; and (2) a plaintiff (either claimant or victim) must have been a US citizen at the time of the incident. See Stethem v. Islamic Republic of Iran, 201 F. Supp. 2d 78 (D.D.C. 2002). The US Congress also drafted an additional, narrow exception to foreign sovereign immunity through the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, § 221. AEDPA amended the FSIA to allow suits in US courts against a foreign State that engages in acts of terrorism under certain specified circumstances. Alejandre v. Republic of Cuba, 996 F. Supp. 1239 (S.D. Fla. 1997). As a result, the FSIA now provides that a foreign State shall not be immune from the jurisdiction of US courts in any case “in which money damages are sought against a foreign State for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources ... for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.” In 2016, the US Congress overrode a veto by US President Barack Obama to enact the Justice Against Sponsors of Terrorism Act, Pub. L. 114-122 (“JATSA”). Whereas the FSIA, as amended by the AEDPA, vested US courts with jurisdiction only over foreign States that were designated as State sponsors of terrorism, JATSA’s “purpose … is to provide the broadest possible basis, consistent with the Constitution of the United States, to seek relief against persons, entities, and foreign countries, wherever acting

unlawful interference with aviation  505 and wherever they may be found, that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States.” 7. Passenger-to-Passenger Assault Unlawful interference with aviation also encompasses passenger-to-passenger misconduct, including, for example, sexual assault. Both the Warsaw Convention of 1929 and the Montreal Convention of 1999 apply to “all international transportation of persons, baggage, or goods performed by aircraft for hire.” In this context, both instruments impose liability on carriers “if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking from an international air flight” (e.g., the Warsaw Convention Art. 17). At least one court has interpreted Article 17 as being broad “enough to encompass torts committed by terrorists or fellow passengers.” See Wallace v. Korean Air, 214 F.3d 293 (2d Cir. 2000). Timothy Ravich

References Air Transport: Civil Aviation Security, Fact Sheets on the European Union, https://www​ .europarl​ .europa​ .eu​ / factsheets​ /en​ /sheet​ /132​/air​-transport​-civil​-aviation​-security Laura K. Ashdown, ‘Preventing a Cyber-9/11: How Universal Jurisdiction Could Protect International Aviation in the Digital Age,’ 84 Journal of Air Law and Commerce 3 (2019) Halina M. Biernacki, ‘Evolving Threat to Civil Aviation is Countered by Legal Instruments as Well as New Technology,’ Air Law, Dec. 1997

Jason Binimow, ‘Validity, Construction, and Application of 18 U.S.C.A. § 2333(a), Which Allows U.S. Nationals who have been Injured “By Reason of Act of International Terrorism” to Sue Therefor and Recover Treble Damages,’ 195 A.L.R. Fed. 217 (2004) Convention for the Suppression of Unlawful Seizure of Aircraft signed at the Hague on 16 December 1970, 860 U.N.T.S 105, https://treaties​.un​.org​/doc​/db​/ Terrorism​/ Conv2​-english​.pdf Paul Stephen Dempsey, ‘Aviation Security: The Role of Law in the War Against Terrorism,’ 41 Columbia Journal of Transnational Law 649 (2003) Alex Fitzpatrick, ‘Here’s What Happens when a Crime is Committed on a Plane,’ Time, Sept. 23, 2016 Michael Jennison, ‘The Beijing Treaties of 2010: Building a “Modern Great Wall” against Aviation-Related Terrorism,’ 23 Air and Space Lawyer 9 (2011) Fern L. Kleter, ‘Proscription of Interference with Flight Crew of Aircraft under 49 U.S.C.A. § 46504 and Predecessor Statute 49 U.S.C.A. App. § 1472(j),’ 23 A.L.R. Fed. 3d Art 2 (2017) R.H. Mankiewicz, ‘The 1970 Hague Convention,’ 37 Journal of Air Law and Commerce 195 (1971), https://scholar​ .smu ​ . edu ​ /cgi ​ / viewcontent ​ . cgi​ ? referer=​ &httpsredir​=1​&article​=2743​&context​=jalc Eric C. Surrette, ‘Validity, Construction, and Application of 18 U.S.C.A. § 32 Criminalizing Destruction of Aircraft and Aircraft Facilities and Other Statutorily Proscribed Conduct,’ 93 A.L.R. Fed. 2d 175 (2015) United States Department of Justice, Criminal Resource Manual, https://www​.justice​.gov​ /archives ​ / jm ​ /criminal​ - resource ​ -manual​ -1401​-199

timothy ravich

148. Unmanned Aircraft Systems I. Terminology The aircraft discussed in this entry have been referred to by numerous titles over the past 100 years. Such terms have included drone, pilotless aircraft, remotely operated aircraft, remotely piloted aircraft (RPA), remotely piloted vehicle, remotely operated vehicle, unmanned aerial vehicle (UAV), and unmanned aircraft (UA) (Huttunen [2017]; Scott [2022]). While the terminology was in flux, it now appears to be settled: by a general consensus, “UA” has become the umbrella concept in regulatory materials and “drone” in more informal documents, such as in press releases, journalistic pieces, and, at times, in academic writings. The consensus is demonstrated in documents issued by entities such as the International Civil Aviation Organization (ICAO), European Union (EU) and its Aviation Safety Agency (EASA), and the United States and its Federal Aviation Administration (FAA). As an umbrella concept, UA refers to aircraft that are operated without any pilot on board of the aircraft. This is shown in the precise definitions issued by regulatory bodies. In its Circular 328, ICAO (2011, p. x) defined a “UA” as “[a]n aircraft which is intended to operate with no pilot on board.” Yet, ICAO has since forfeited the term and distinguished between two subcategories of UA: RPA and Autonomous Aircraft (AA). The former means “[a]n unmanned aircraft which is piloted from a remote pilot station,” while the latter “[a]n unmanned aircraft that does not allow pilot intervention in the management of the flight” (ICAO 2015, pp. xiv and xviii). ICAO’s rulemaking now targets only RPA, the bigger subset of the two. The EU rules align with ICAO’s definitions apart from the EU not creating a subcategory for RPA or AA. “UA” has been defined in Article 3 of Commission Delegated Regulation (EU) 2019/945, meaning “any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board.” The concepts of RPA and AA are hence embedded into the definition. The United States, pursuant to 14 CFR §107.3, has defined the term “UA” to mean “an aircraft operated without the possibility of direct

human intervention from within or on the aircraft.” The United States has introduced a subcategory of “small UA,” which is a UA that weighs less than 55 lbs. The concept of UA refers only to the aircraft component. The concept of Unmanned Aircraft System (UAS), meanwhile, is broader. According to ICAO definition, “UAS” means “[a]n aircraft and its associated elements which are operated with no pilot on board” (ICAO 2011, p. x). The organization now, however, uses the concept of RPAS, which means “[a] remotely piloted aircraft, its associated remote pilot station(s), the required command and control links and any other components as specified in the type design” (ICAO 2015, p. xviii). In the EU rules, “UAS” is to mean “an unmanned aircraft and the equipment to control it remotely.” Pursuant to US law, “small UAS” refers to “a small unmanned aircraft and its associated elements (including communication links and the components that control the small unmanned aircraft) that are required for the safe and efficient operation of the small unmanned aircraft in the national airspace system.” Hence, while there is now some general agreement on the use of UA and stark similarities between definitions, there is no universal legal definition. Therefore, one must always consider the definition provided in the relevant jurisdiction. Further, not every jurisdiction may utilize this term, thus perpetuating the terminological divide.

II. Military and Civil Applications UAS can be used both for military and civil purposes. The history of UAS is arguably longer than that of manned aircraft due to their military use, which remains a widespread application. As a result, it is not surprising that these aircraft continue to be used in present military conflicts. This is well exemplified by the war, initiated in 2014 and escalated in 2022, waged by Russia against Ukraine, whereby UAS have played a pivotal role. Indeed, many States, including China, Iran, Israel, Turkey, and the United States, are investing heavily in the development of more advanced combat unmanned aircraft. Yet, the 21st century has seen a shift in focus to the non-military applications of UAS: ●

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national police forces are using UA to assist them in crime prevention;

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border forces are monitoring international frontiers to prevent illegal crossings and rescue stranded immigrants; both States and private entities have deployed UA for safety inspections of critical infrastructure, such as power plants and off-shore platforms; private entities are operating UA as their main or to support their primary commercial activity, for such things as photography and filming; individuals are partaking in amateur building and flying of UA for recreational purposes, and they are proving popular toys for children.

The application of UAS in the civil sector is predicted to grow in terms of stakeholders, total number of aircraft, types of operations, jobs, and revenue. For example, at the time of writing, the EU expects this sector to directly employee in excess of 100,000 people and exceed €10 billion per year just in Europe within the next 20 years.

III. Law on UAS 1. International The shift to civilian applications of UAS has necessitated regulatory action (Masutti and Tomasello [2018]; Huttunen [2020]; Tarr et al. (eds) [2022]). The basis of air law on UAS is the Convention on International Civil Aviation of 1944, commonly referred to as the Chicago Convention. The Chicago Convention is applicable to all civil aircraft, including UA, engaged in international operations. While it does not host the term “UA,” Article 8 on “Pilotless Aircraft” states that “[n]o aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization.” While there has been debate on the meaning of “pilotless,” ICAO has for practical reasons declared that the provision is applicable to all UAS. As a result, such aircraft will require special authorization from the subjacent State before entering its territory. Other provisions of the Chicago Convention apply to all civil aircraft and, therefore, to UAS. The safety of international civil aviation is built on Annexes to the Chicago Convention. ICAO has been working, with the support of their RPAS Panel, on amending the Annexes. Inter alia, Annex 1 on Personnel Licensing,

Annex 2 on Rules of the Air, Annex 8 on Airworthiness of Aircraft, and Annex 13 on Aircraft Accident and Incident Investigation have already been amended to accommodate UAS. It is expected that all 19 Annexes will be updated to ensure the safe, secure, and efficient integration of UAS into the airspace. ICAO’s approach to regulating UAS has been largely based on existing rules on manned aircraft. As the organization’s scope is international aviation, it has steered away from regulating store-bought UAS that are operated only locally. However, as the vast majority of the increase in unmanned aviation has consisted of such local operations, the focus on international, commercial grade operation has come at the expense of fragmentation in national rules across the world. 2. Regional Regulations: The European Union Regionally, the EU has been the most active organization in developing rules for UAS. The basis for EU action is the EASA Basic Regulation, the current reiteration of which is Regulation (EU) 2018/1139. This allows the EU to adopt specific commission regulations for civil UA regardless of weight or size. Consequently, this has been enacted for three domains: ●

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the design and manufacture of UA and making them available to the market (Regulation (EU) 2019/945 (as amended)); the rules and procedures for the operation of UA in the Single European Sky (Regulation (EU) 2019/947 (as amended)); a regulatory framework for the U-space (Regulation (EU) 2021/664).

The EU rules have established three categories of UA operations that constitute the central architecture of the regulatory system. The relevant rules and procedures vary depending on the category as the rules are operation-centric and risk and performance based, where different risk mitigation measures are mandated depending on the impact on safety. The first is the Open Category, which is for low-risk operations. Here, an operator is permitted to fly a UA in accordance with the operation limitations set out in Regulation

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508  elgar concise encyclopedia of aviation law 2019/947. For example, the limitations dictate the maximum takeoff mass, altitude, distance from operator, and proximity to third parties. This will encompass the majority of flights by store-bought UAS. The second is the Specific Category, which is for medium-risk operations. If the operation is outside the limitations found in the Open Category, then it will require approval by the relevant competent authority (typically the national civil aviation authority). Following a risk assessment conducted by the operator, approval may be sought via one of three ways: ●

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Standard Scenarios are pre-defined operations that the operator can follow; an Operational Authorization can be sought from the competent authority; a Light UAS Operator Certificate allows legal entities to self-authorize their operations.

Finally, the Certified Category covers higherrisk operations. The regulations are currently under development, but they will cover the core safety domains (e.g., airworthiness, licenses, flight operations, and aerodromes) for such activities as the transportation of people and dangerous goods. 3. National Law On a global scale, national law on UAS retains its importance. First, international law on UAS is still scarce since the Chicago Convention contains only a single provision and only a few of its Annexes have been amended with UAS in mind. Second, the Chicago Convention and the Annexes thereto merely direct States to implement international safety standards and recommendations at a national level: rules enacted by ICAO are not directly applicable as law by civil aviation authorities in the domestic context. In other words, ICAO’s jurisdiction is limited to international aviation, and, thus, its role in the development of national law is supportive. To this end, ICAO produced a model regulation in December 2020 (ICAO 2020) to assist States in establishing and refining their own national rules. In Europe, EU Member States are bound by the EU rules on UAS, which to a major extent are directly applied in place of national ones. However, even EU States have some residual competence in legislating UAS, for

instance regarding the establishment of UAS geographical zones. Furthermore, military aviation remains fully outside the scope of EU law. There are far too many jurisdictions in the world to provide a comprehensive picture of national law on UAS. In the United States, a major jurisdiction in terms of UAS, the rules have taken a similar approach to that on the EU. For small UA, Part 107 provides operational restrictions that must be followed. However, a waiver can be sought to these restrictions if the operator can prove that the same level of safety can be met. This is quite similar to the EU’s specific category of operations.

IV. Concluding Remarks Present UAS operations are largely on a small scale and local. In the near future, however, UAS are predicted to operate commercially and internationally (Fiallos Pazmiño [2020]). For example, logistic companies plan to move to pilotless cockpits for cargo flights, and manufacturers are working on making this a reality. Therefore, the role of ICAO in regulating international civil UAS, namely, to ensure safe, secure, and efficient flights, will be paramount. The process is ongoing but far from complete. In the EU, respectively, EASA will continue to be the key actor. As the majority of UAS operations are domestic and as the complexity and volume of domestic operations will also increase, national law will continue to be a relevant factor. Globally, jurisdictions are in different regulatory stages, with the United States, for example, also having mature national rules that suit its own domestic requirements. However, this is not the case in every jurisdiction, so there is a patchwork of rules across the globe. While the regulation of UAS has focused on safety, this is not the only aspect necessitating rules. There are broader issues that must be considered, including privacy, national security, and cybersecurity. While these issues are not a matter of aviation law per se, the aviation community must also be involved: the regulation of UAS is a diverse project. Consequently, all stakeholders must be involved when drafting new or amending existing rules so as to facilitate unmanned aviation on a global scale while accommodating local needs. Benjamyn I. Scott and Mikko T. Huttunen

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References Anna Masutti and Filippo Tomasello, International Regulation of Non-Military Drones, (Edward Elgar, 2018). Anthony Tarr, et  al. (eds), Drone Law and Policy Global Development, Risks, Regulation and Insurance, (Routledge, 2022). Benjamyn I. Scott, ‘Open Skies for Unmanned Aircraft in Europe: An Outlier or a New Approach?’, 46(1) Air & Space Law 57–80 (2021). Benjamyn I. Scott (ed.), The Law of Unmanned Aircraft Systems, 2nd Edition, (Kluwer, 2022). Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on Unmanned Aircraft Systems and on Third-Country Operators of Unmanned Aircraft Systems. Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the Rules and Procedures for the Operation of Unmanned Aircraft.

Convention on International Civil Aviation (The Chicago Convention). 15 UNTS 295, ICAO Doc 7300. ICAO, ‘Manual on Remotely Piloted Aircraft Systems (RPAS)’, Doc. 10019 (2015). ICAO, ‘ICAO Model UAS Regulations’ https://www​. icao​ . int ​ /safety​ / UA ​ / Pages ​ / ICAO​-Model​-UAS​-Regulations​.aspx. ICAO, ‘Unmanned Aircraft Systems (UAS)’, Cir 328 AN/190 (2011). Luis Fernando Fiallos Pazmiño, The International Civil Operations of Unmanned Aircraft Systems under Air Law, (Wolters Kluwer, 2020). Mikko T. Huttunen, Safety and Security of Unmanned Aircraft Systems: Legislating Sociotechnical Change in Civil Aviation, (University of Lapland, 2020). Mikko T. Huttunen, ‘Unmanned, Remotely Piloted or Something Else? Analysing the Terminological Dogfight’, 42(3) Air & Space Law 349–368 (2017). United States Code of Federal Regulations, Part 107.

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149. Unmanned Aircraft System Traffic Management

unmanned air traffic. Generally speaking, under current circumstances: ●

I. General Aspects

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Unmanned Aircraft System Traffic Management (UTM) is the general concept for managing the air traffic of civil unmanned aircraft (see generally Baum 2021). This includes remotely piloted and autonomous operations of all risk profiles, including passenger services as discussed within the context of Urban Air Mobility (UAM) / Advance Air Mobility (AAM). The term was apparently coined by the National Aeronautics and Space Administration (NASA) in research projects conducted in the early 2010s. Since then, the term “UTM” has entered the vocabulary of regulatory bodies across the globe, including the International Civil Aviation Organization (ICAO), the European Union Aviation Safety Agency (EASA), and national civil aviation authorities (CAAs), so it is being utilized at national, regional, and international levels. The proliferation of the concept is driven by the increasing number of UAS operations across the world. The European Union’s (EU) UTM concept is called U-space (see Huttunen 2022). The need for U-space was first explicitly stated in 2016, as further laid out in the Strategic Research and Innovation Agenda (SRIA) for the Digital European Sky, and the first rules entered into force in 2021 via Commission Implementing Regulation (EU) 2021/664 on a regulatory framework for the U-space. Meanwhile, the US Federal Aviation Administration’s (FAA) initial UTM implementation includes the Low Altitude Authorization and Notification Capability (LAANC), which was launched in 2017. This division, therefore, highlights the fact that UTM is not a uniform notion across different jurisdictions. Since UAS are part of air traffic in general, UTM can be regarded as a subset of Air Traffic Management (ATM). Indeed, according to ICAO’s Common Framework with Core Principles for Global Harmonization, UTM is a specific aspect of ATM that manages UAS operations. From this perspective, ATM is the umbrella term. Yet, as of now, UTM is largely segregated from ATM. This is due to the differences between managing civil manned and

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manned aviation has a much more extensive history with established practices, as opposed to unmanned aviation, which is rather a recent phenomenon; unmanned aviation is predicted to surpass manned aviation in volume in the near future; manned aircraft are overall technically more complex, but UAS have some distinctive technologies; manned aircraft are overall, due to their size and capabilities, riskier, but UAS are less predictable; manned aircraft are overall more expensive; manned aircraft overall carry a more valuable payload; manned aircraft overall operate at higher altitudes; manned aircraft overall operate for longer durations.

These variances create different expectations and solutions for traffic management. ATM relies on human air traffic controllers who observe air traffic and communicate with each individual aircraft (i.e., the pilots). Controllers are aided by technology, which provides automation and safety. ATM also emphasizes the professional training of pilots. UTM is designed to take the ATC and pilot out of the loop: it relies almost completely on digital networks (digital services) that handle the activities necessary for safe operation. This is necessary due to the high predicted volume of unmanned aviation and the requirement of precision in urban environments. UTM also does not expect all operators to be trained professionals, especially in the lower-risk categories of operations. This calls for safe and secure automation. The following areas will be critical to the success of UTM: ● ● ●

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information management; simulation and verification; integration with existing traffic management systems; cyber threat and security; application of artificial intelligence; defined liability limits and assigned responsibilities.

For now, ATM and UTM will merely coexist, complementing each other (i.e., segregation).

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unmanned aircraft system traffic management  511 In the future, though, the goal is to integrate manned and unmanned aviation seamlessly into a singular system, which will require merging ATM and UTM. This will mean increasing automation and less reliance on human interaction.

II. Stakeholders UTM involves numerous stakeholders. National CAAs are typically responsible for creating the regulatory framework for UTM. One exception to this is the European Union (EU), where regional rulemaking activities by EASA now override national competencies. CAAs are regardless responsible for designating areas where UTM is provided. UTM itself is maintained by service providers, which can be called UAS service suppliers (USS), U-space service providers (USSP), or the like, depending on the jurisdiction. Air Navigation Service Providers (ANSP), which are in charge of legacy ATM, provide information about and manage manned aviation in relation to unmanned aviation. The primary users of UTM services are UAS operators, that is, private individuals or enterprises, or public authorities, who fly UAS. Globally, at present, there are different approaches to how airspace should, or should not, be structured to accommodate and facilitate UTM. In the United States, the FAA does not designate particular “UTM airspace.” Rather, the LAANC regime establishes, near airports, grid-based low-level airspace zones where UAS may operate only with authorization. Additionally, the FAA has envisioned the designation of air corridors for UTM purposes. Meanwhile, in the EU, the CAA of each EU Member State can specifically designate U-space airspace in the airspace under their jurisdiction. Still, technically, U-space is not a new volume or class of airspace but a collection of services. U-space can be established for safety, security, privacy, or environmental reasons. The designation of the U-space requires conducting an airspace risk assessment, on the basis of which the CAA must determine which type of UAS are allowed to operate in the U-space, which services must be provided therein, and which operational restrictions are applicable. If the U-space is designated within controlled airspace, the ANSP is still responsible for manned aircraft flying therein and the volume of the U-space

may be temporarily reconfiguration).

limited

(dynamic

III. Services UTM can consist of several different services. The categorization of these services varies depending on the jurisdiction(s) concerned: the EU U-space envisions a particular set of services that are, at some points, comparable to those envisioned by ICAO, the FAA, and other national authorities. The following is not an exhaustive presentation. First, UTM can involve some means of sharing general information about locations where UTM is provided and under which terms, as well as coordination vis-à-vis ATM. In the EU, such means are called “common information services.” The comparable concept in other jurisdictions, such as the United States and Australia, is the “Flight Information Service” (FIS). Essentially, the purpose is to establish a reliable collection of information that aids several stakeholders in sharing data and coordinating activities. It tells everyone the geographical location of U-space and the applicable performance requirements and operational conditions, as well as the USSP, that provides services therein. Second, UTM can enhance the identifiability of UAS. To this end, UAS and/or their operators can, first of all, be registered, and then a distinct service to be provided that utilizes the registration data in conjunction with other data. The EU U-space service that enables the remote identification of UAS throughout their flight is called the network identification service; in non-EU States, the service is called, for example, “remote ID.” Identification provides all authorized users with, inter alia, the operator’s registration number; the remote pilot’s position; and the UAS’s serial number, geographical position, route course, and ground speed. Third, UTM can also provide UAS awareness of any permanent and temporary operational conditions and airspace constraints. For this purpose, the EU U-space concept includes the geo-awareness service. This service informs UAS operators about conditions within the given U-space. Furthermore, it describes adjacent zones, such as no-drone zones, that are relevant to operating in the U-space.

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512  elgar concise encyclopedia of aviation law Fourth, flight planning, conflict detection, and strategic deconfliction are additional possible components of UTM. In the EU, these elements largely fall within the ambit of the flight authorization service. Authorization works so that the UAS operator requests an authorization, after which the USSP checks whether the request has been submitted correctly. If there is no planned intersecting unmanned traffic and if existing airspace restrictions or limitations so allow, the request is granted. To begin the flight, the USSP must, however, also activate the authorization when the operator separately so requests. Authorizations are constantly checked against new airspace restrictions and limitations as well as information about manned air traffic. Fifth, UTM can, in the future, also incorporate tactical deconfliction, that is, real-time separation of UAS from each other. The basis for this is found in the legacy concept of detect and avoid (DAA), but in UTM the aim is to automatize the process. In ICAO terminology, this is called the conflict advisory and alert service, while the EU calls it the traffic information service. Either way, the purpose thereof is to avoid unmanned and manned aircraft from colliding with each other. In its present form, the service informs UAS operators of air traffic that may be close to the aircraft’s authorized flight path. For UAS operators to ensure their compliance with law and flight authorization, UTM can involve conformance monitoring. This means that the operator is alerted when the UAS breaches the conditions of its flight authorization or any requirements or conditions applicable in the airspace. Simultaneously, the service provider will alert other operators and service providers, including ANSP.

IV. Present Stage and Future UTM is still a relatively new concept, as opposed to a single fixed technology or activity, and, hence, its meaning is constantly being reimagined. Indeed, regulatory bodies and enterprises across the world have different views of what the concept entails. The EU U-space concept, pursuant to a 2017 blueprint document, is designed to be implemented in four stages: ●

foundation services: registration, identification, and geofencing;

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initial services: flight planning, approval, and tracking, as well as dynamic airspace information and interfaces with ATM; advanced services: automated DAA and more reliable communication; full services: integration with manned aviation and ATM.

As presented above, the development of UTM regulations and the rollout of services are underway, albeit in early stages. The success, direction, and pace of the process depends on a number of factors. The most important factor is the continuing cooperation of all stakeholders, including regulators, operators, manufacturers, ATM and prospective UTM providers, insurers, and so forth. UTM calls for the interactive and transparent creation of technology and regulation, recognizing the linkages between parties. In the technical sense, advanced UTM services necessitate improvements in the interoperability between manned and unmanned operations, as well as between ATM and UTM. This objective requires the creation of a global airspace operational concept and standards for integrated ATM. Ultimately, full-scale UTM is enabled by the convergence of UTM and ATM into a singular system and operating concept. A major factor in achieving convergence is the continued funding of research and demonstration activities. In the context of aviation law, the global execution of UTM hinges on the development of a uniform regulatory framework across international, regional, and domestic divides among States, organizations, and authorities. As unmanned aircraft operations become more sophisticated, thus crossing international borders, and as technology is sold globally, harmonization and interoperability will need to be the core pillars of UTM. UTM also benefits from regulation that is scalable, performance-based, technology agnostic, and adaptive as well as sensitive to both changes in technology and in the operational characteristics and environment. Present initiatives are very much national, with the exception of the EU, where EASA has been tasked with developing the rules. To address this situation, ICAO has been working with different stakeholders to develop its Unmanned Aircraft Systems Traffic Management (UTM) – A Common Framework with Core Principles for Global

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unmanned aircraft system traffic management  513 Harmonization. To this end, the 41st ICAO General Assembly, which took place in September 2022, discussed UTM as one of the “New Entrants” of civil aviation. The Assembly recognized that ICAO provisions may need to be amended or expanded to ensure the safe integration of UTM into the existing ATM framework. Mikko T. Huttunen and Benjamyn I. Scott

References Commission Implementing Regulation (EU) 2021/664 of 22 April 2021 on a regulatory framework for the U-space. FAA, UAS Data Exchange (LAANC). Available   at   https://www​ . faa​ .gov​ / uas​ / programs ​ _ partnerships ​ /data ​ _ exchange accessed 6 April 2022.

ICAO, ‘Assembly Resolutions in Force (as of 7 October 2022)’, Doc 10184, A41-9, p. II-39. Michael S. Baum, Unmanned Aircraft Systems Traffic Management: UTM (CRC Press 2021). Mikko T. Huttunen, ‘Chapter 7: U-space – European Union’s Concept of UAS Traffic Management’ in Benjamyn I. Scott (ed), The Law of Unmanned Aircraft Systems (2nd edn, Kluwer 2022). Unmanned Aircraft Systems Traffic Management (UTM) – Common Framework with Core Principles for Global Harmonization, Edition 3. Available at https://www​.icao​.int​/safety​ /UA ​ / Documents ​ / UTM​ %20Framework​ %20Edition​%203​.pdf accessed 21 February 2022.

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150. Unruly Passengers I. Brief Introduction “Unruly passengers” continuously make their presence in the media headlines. Knowingly unruly passengers have become threats to the safe operation of aircraft, and such is evident in actions initiated by national governments. As an example, on 4 November 2021, the Federal Aviation Administration (FAA) of the US Department of Transportation (FAA) released a news item that 37 incidents out of 5,000 unruly passenger–related cases have been sent to the Federal Bureau of Investigation (FBI) for criminal review. According to the most up-to-date record, there have been 1,233 unruly passenger reports, whereas about 370 investigations were initiated in the United States in 2022. The issue is taken seriously, as the FAA promotes a so-called zero tolerance policy. Meanwhile, the actions of unruly passengers vary from urinating on the floor or drinking too much alcohol onboard an aircraft to using emergency slides to exit without prior instructions when searching for the term on an online search engine. This broad range of actions encompasses “unruly” committed by passengers.

II. Relevant Legal Framework This entry treats chiefly the following two regulatory regimes: ●

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Annex 17 Security Safeguarding International Civil Aviation Against Acts of Unlawful Interference to the Chicago Convention to the Convention on International Civil Aviation, 1944, hereinafter “Annex 17”; Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963, hereinafter Tokyo Convention (1963); and Tokyo Convention (1963) as amended by the Protocol to Amend the Convention on Offenses and Certain Other Acts Committed on Board Aircraft Other Acts at Montreal, 2014, hereinafter Montreal Protocol (2014).

Hence, the Montreal Protocol (2014) is the result of great efforts made by the International Air Transport Association

(IATA). IATA also provides guidance material that assists its members in tackling the issue of unruly passengers in a more concise manner. Moreover, IATA was one of the main stakeholders that recognized the significance of the issue of unruly passengers and raised awareness in the international civil aviation industry on the increasing number of unruly passengers in the form of presenting working papers at the Legal Committees and Special Sub-Committee of the Legal Committee sessions of ICAO. Those efforts led international civil aviation to adopt the amendment to the Tokyo Convention (1963) by the Montreal Protocol (2014). This latter document encompasses contributions from industry stakeholders as well as of various legal analyses and case laws. For instance, Piera points out that the Tokyo Convention (1963) had legal gaps involving jurisdictions, authorities of the aircraft commander, and lack of a definition of “offenses.”

III. Scope 1. Unruly Passenger The term “unruly passenger(s),” which can be interchangeably used with the term “disruptive passenger(s),” has been defined in Annex 17. The definition provided is that “unruly passengers” or “disruptive passengers” are “passengers who fails to respect the rules of conduct at an airport or on board the aircraft or to follow the instructions of the airport staff or crew members and thereby disturbs the good order and discipline at an airport or on board aircraft.” Moreover, another international legal framework that is applicable to unruly passengers also provides a useful introduction in defining the term. Article 1 of the Tokyo Convention (1963), amended by the Montreal Protocol (2014), states: Article 1 1. This Convention shall apply in respect of: a) offences against penal law; b) acts which, whether or not they are offences, may or do jeopardize the safety of the aircraft or of persons or property therein or which jeopardize good order and discipline on board. Hence, according to the scope of the Tokyo Convention as amended by the Montreal Protocol (2014), a passenger can be unruly

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unruly passengers  515 when having committed or committing “acts, which whether they are offences against penal law of a State or not, may or do jeopardize the safety of the aircraft or of persons or property therein or which jeopardize good order and discipline on board.” From these two definitions provided in ICAO Annex 17 as well as the Tokyo Convention (1963), amended by the Montreal Protocol (2014), a wide range of actions that violate the rules of conduct at an airport or onboard an aircraft as well as offenses and/or any acts with or without potential harm to good order and safety onboard can be interpreted as unruly. 2. Unruly Behavior To provide a guidance in defining actions that are considered unruly and disruptive, and to tackle the increasing threats of unruly passengers by fostering a uniform reporting system, ICAO has launched a new Manual on the Legal Aspects of Unruly and Disruptive Passengers, hereinafter “Manual on Unruly Passengers,” that contains a list of offenses that should be considered unruly and disruptive. Those actions include, but are not limited to, the following as found in Appendix A of the Manual on Unruly Passengers: ●

●

●

assault and other acts of interference against a crew member onboard an aircraft, which includes physical assault or threat to commit such assault against a crew member, verbal intimidation or threats which hampers the performance of duties of a crew member, or refusal to follow a lawful instruction given from the aircraft commander for the purpose of protection of safety and maintenance of good order and discipline onboard; assault and other acts endangering safety or jeopardizing good order and discipline onboard an aircraft, which includes an act of physical violence, sexual assault or child molestation, assault, physical and/ or verbal intimidation, or threat causing intentional damage or disruption of property, and excessive consumption of alcoholic beverage or drugs that causes intoxication; other offenses committed onboard an aircraft, such as smoking, tempering with a smoke detector or other safetyrelated device, or operation of a portable electronic device when not permitted.

These lists are indicative of the types of offenses that ICAO Member States should recognize and report as unruly passenger incidents. An incident that can be perceived as “unruly behavior” can change, and it may be disputable. For example, due to the COVID19 pandemic, passengers who refused to wear a hygiene face mask were considered unruly, which was not the case before the pandemic. While in some jurisdictions, it is not mandatory to wear a mask in public, refusal to wear one may still be considered as unruly behavior. 3. Authority of the Aircraft Commander While the great importance of the aircraft commander in ensuring the safety of the flight is recognized, whether the authority of the aircraft commander to make a judgment to take reasonable measures against unruly passengers in flight has to be determined subjectively or objectively remains in question. The case of Eid v. Alaska Airlines provides that the aircraft commander should make an objective judgment and should not accept at face value of information provided by crew members. An opposite view gives deference to the authority of the aircraft commander to make subjective judgments, which was also supported by the judgment in the case of Zikry v. Air Canada, in stating the reasonableness of the judgments of the aircraft commander is determined by the facts of the situation facing the aircraft commander, but not by law. The Tokyo Convention (1963) amended by the Montreal Protocol (2014) does not provide clarity on this issue. 4. In-flight Security Officer Not only the aircraft commander but also the in-flight security officer (IFSO) can act against unruly passengers. IFSO was not included in the Tokyo Convention (1963). It was introduced in the Montreal Protocol (2014), which amended the Tokyo Convention (1963). While the Montreal Protocol (2014) does not define IFSO, it is possible to find the definition in the working paper of the ICAO Legal Committee. According to the record, the definition of IFSO is given as follows (ICAO [2013]): (b) “in-flight security officer” means a [government employee]/ [person] who is specially

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516  elgar concise encyclopedia of aviation law selected, trained and authorized by the government of the [s]tate of the operator [and]/[or] the government of the [s]tate of registration to be deployed on an aircraft, pursuant to a bilateral or multilateral [agreement (and/or) arrangement], with the purpose of

meeting the issue of unruly passengers, with the assistance of existing legal tools. Jinyoung Choi

(Option A) protecting that aircraft and its occupants against acts of unlawful interference [ ];

Administration FA, ‘Unruly Passengers’ (2022) accessed 1 May 2022. Boyle Robert P. & Pulsifer R., ‘The Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft’ 30 J. Air. L. & Com. 305, 328–9 (1964). Eid v. Alaska Airlines Inc., 621 F 3d 858 (9th Cir, 2010). FAA, ‘Unruly Passengers’ (2022) accessed 1 May 2022. IATA, The Views of the IATA on the Modernisation of the Tokyo Convention 1963 and the Problem of Unruly and Disruptive Passengers in ICAO Special Sub-Committee of the Legal Committee for the Modernization of the Tokyo Convention Including the Issue of Unruly Passengers – 2nd Meeting (LC/SC-MOT/2-WP/5 3/12/12, 2012). ICAO, Report of the 35th Session of the Legal Committee (ICAO Doc. 10014-LC/35 May 6–15, 2013). ICAO, ICAO Manual on the Legal Aspects of Unruly and Disruptive Passengers (Doc. 10117, 1st edn, ICAO 2019). ICAO, Annex 17 Security – Safeguarding International Civil Aviation Against Acts of Unlawful Interference (11th edn, ICAO 2020). ICAO, Special Sub-Committee of the Legal Committee for the Modernization of the Tokyo Convention Including the Issue of Unruly Passengers, 2021. Piera A., ‘ICAO’s Latest Efforts to Tackle Legal Issues Arising from Unruly/ Disruptive Passengers: The Modernization of the Tokyo Convention 1963’ (2012) 37(3) Air and Space Law 231. Shubber S., Jurisdiction over Crimes on Board Aircraft (Brill 1973). Zikry v. Air Canada, Civil File no 1716/05 A (Magistrates Court of Haifa 2006).

(Option B) protecting that aircraft and its occupants against any offence or act contemplated in Article 1 paragraph 1; (Option C) protecting the safety of that aircraft, or of persons or property on board.

According to the above proposed definition, the role of an IFSO is someone who is assigned to protect the safety of the aircraft, upon selection, training, and authorization of a government for that specific purpose. The deployment of IFSO is up to a bilateral agreement between States. The Tokyo Convention (1963), as amended by the Montreal Protocol (2014), does not contain the proposed texts. Instead, it states what an IFSO is permitted to do, under Article 6 of the Tokyo Convention (1963), amended by the Montreal Protocol (2014). According to Article 6, upon request or authorization, an IFSO may assists in restraining unruly passengers or takes reasonable preventive measures, without authorization in the presence of reasonable grounds to believe such are necessary. Moreover, the Tokyo Convention (1963) does not impose an obligation on contracting States to deploy an IFSO, but such States may establish agreements to arrange authorization for foreign in-flight security officers.

IV.

Way Forward

Despite these unfilled gaps, the issue of unruly passengers continues to be handled in a collective and universal manner. The ICAO Manual on Unruly Passengers and Amended Tokyo Convention (1963) are the result of the collective efforts of the ICAO Member States and States that are party to the Amended Tokyo Convention (1963). Stronger enforcement, prevention and management are key to

jinyoung choi

References

151. Urban Air Mobility

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I. Introduction The increase in the number of cars, taxis, and buses and the resulting traffic congestion and pollution together with the continuous technological development in the aeronautical field have led to a rethinking of the future of transportation in cities, including expanding mobility in the air. For these reasons Urban Air Mobility (UAM) – which is part of the broader concept of Advanced Air Mobility (AAM) – is attracting growing attention by governments, local authorities, tech-industries, air carriers, start-up companies, and scholars. Electric vertical takeoff and landing vehicles, capable of carrying people and goods by air, are considered as a future solution for a safe, efficient, and sustainable air transportation system around metropolitan areas. Thanks to the considerable investments and pilot projects and prototypes currently in place, it is expected that manned and unmanned air vehicles will be used for the carriage of individuals and packages above built up-areas.

air vehicles can be manned or unmanned aircraft.

In reality, the scenario appears to be more complex (Toja et al. [2021]). The term “mobility” covers not only demand (air taxis) or scheduled air services but also transport of injured or sick persons to hospitals (air ambulances) or sightseeing tours as well as the movement of vehicles in the air for other purposes, such as civil surveillance (inspection of infrastructures, visual assessment of incident sites) and so on. Limiting the focus on air taxis and carriage of goods, a first consideration concerns the type of vehicle. While it is easy to expect that the transport of passengers will take place initially on air vehicles with a pilot onboard – colloquially called “air taxis” – Unmanned Aerial Vehicles (UAV) – commonly known as “drones” – will be employed for the carriage and delivery of small packages.

III. Benefits, Disadvantages, and Legal Issues

UAM is expected to offer significant benefits for citizens. In particular, the main advantages will be a decrease of congestion on the ground and traffic jams, an increase in travel speeds, no environmental pollution thanks II. Definition to the use of electronic motors, the developAt this moment there is no universal shared ment of remote areas that today are difficult to definition of what constitutes UAM (Andritsos access by other modes of transport, the creaet al. [2022], Trimarchi [2023]). tion of new jobs, etc. According to the European Union Aviation However, with regard to UAM, there are Safety Agency (EASA): some disadvantages that require particular “UAM is a new safe, secure and more sus- attention. tainable air transportation system for passenFirst, these new manned and unmanned gers and cargo in urban environments, enabled air vehicles will have to coexist with each by new technologies and integrated into mul- other and with traditional aircraft in the same timodal transportation systems. The transpor- urban small non-segregated airspace. Second, tation is performed by electric aircraft taking a growing number of air vehicles flying over off and landing vertically, remotely piloted the cities will generate negative consequences or with a pilot on board” (https://www​.easa​ on the environment, such as visual impact .europa​.eu​/what​-is​-uam). and noise as well as pollution produced by Drawing on these definitions, the funda- batteries’ disposal. Furthermore, at least in mental characteristics of UAM are as follows: the early period, UAM will probably create social differences because of the high price of ● UAM consists in the carriage of pas- air services, sustainable only by wealthy peosengers (taxi or scheduled services) and ple, while the inconveniences will be borne by everyone. Special emphasis should also be goods by air; ● transport takes place over urban areas, paid to issues relating to safety and security. which means that it can be intracity or from Small aircraft cannot fly in bad weather. In a location outside the city to the city itself; the event of an incident caused by malfunctions or human errors, collisions, not only ● flights are operated at low altitudes; 517

518  elgar concise encyclopedia of aviation law with other aircraft but also with birds, and consequential fall of air vehicles may cause damage to passengers or goods onboard, other aircraft, or persons and property on the ground. Moreover, these new vehicles, especially if they are unmanned, may be subject to cyberattacks by hackers and terrorists. Last but not least, air taxis and drones, flying above private property, may violate privacy rights. Consequently, the legal implications surrounding UAM are myriad. It is therefore necessary to put in place a solid regulatory framework that clearly defines provisions both to prevent incidents and to compensate for damages. Since it is impossible to examine here all the complex legal questions in detail (for more information, see Masutti and Tomasello [2018]), as some examples the following issues may be briefly mentioned: ●

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●

air taxis and drones shall be safe and this requires provisions about airworthiness, certification, pilot training, etc.; they shall be secure and, therefore, provisions are necessary to prevent their use for illegal and criminal activities; during the navigation they shall respect precise rules of the air to prevent collisions; it will be of fundamental importance to determine the liability regime, whether contractual or in tort, for bodily injuries and damages caused by air taxis and drones, clearly identifying the liability of each party, that is to say the owner, the operator, the remote pilot-in-command or the pilot onboard, the producer of air taxi or drones and their software, a third party causing the incident, etc.; a clear regulation is, moreover, essential to allow insurers to offer adequate coverage at reasonable costs for liability arising from the use of air taxis and drones.

IV. Regulatory Framework At present, there is no specific legal framework for UAM. For the regulator, creating special rules is not easy, considering that UAM is a complex phenomenon subject to rapid evolution. Nevertheless, from a legal point of view, not only air taxis, but also drones can be qualified as aircraft. This means that, if compatible, the existing rules, established for manned and unmanned aircraft, may be applied to monica brignardello

taxis and drones (Masutti and Tomasello [2018]). However, the legal framework on aircraft is not always fully appropriate to regulate all the numerous and heterogeneous legal profiles of UAM. For example, there are no special rules for unmanned aircraft regarding civil liability. Therefore provisions pertaining to the carriers’ liability for the transport of persons and goods by manned aircraft, as well as general rules on civil liability of the vehicles’ producers and of the software developers, may be applied as far as possible. The same can be said in relation to civil liability for damage on the surface. As regards unmanned aircraft, attention on the need for regulation has focused on measures needed to ensure that these new air vehicles can fly safely and not on remedial measures for possible damages caused by them. Attempts to create uniform rules regarding the registration/certification and use of drones have been made by both the US Federal Aviation Administration (FAA) and the European Union (EU). In 2016 the FAA promulgated Part 107 of Title 14 of the Code of Federal Regulations. Part 107, last amended in 2021, contains provisions for small unmanned commercial aircraft weighting less than 55 pounds at takeoff (Carr [2021]). These rules concern airworthiness requirements, pilot certification, operational limits (height, speed, and restrictions on flights over people and vehicles), etc. The FAA may authorize exemptions for unmanned aircraft exceeding the maximum weight limit. In the European Union (Barbano and Costa [2023], Fakhraian et al. [2023], Trimarchi [2023]) unmanned aircraft have been subject to a fragmented set of rules until the adoption of the Regulation (EU) 2018/1139 of 4 July 2018 (the so-called Basic Regulation). The Regulation covers all the fundamental areas in the field of civil aviation (airworthiness and environmental protection, aircrew, air operations, aerodromes, air traffic management and air navigation services, air traffic controllers) and establishes common rules concerning essential requirements for unmanned aircraft regardless of their maximum takeoff mass. To ensure the uniform implementation of Regulation (EU) 2018/1139, two legislative acts have been adopted by the Commission: the Delegated Regulation (EU) 2019/945 of 12 March 2019 “on unmanned aircraft systems and on third-country operators

urban air mobility  519 of unmanned aircraft systems” and the Implementing Regulation (EU) 2019/947 of 24 May 2019 “on the rules and procedures for the operation of unmanned aircraft.” While the Delegated Regulation lays down the requirements for the design and manufacture of Unmanned Aircraft Systems (UAS) (i.e., the unmanned aircraft and the equipment for their remote control), establishing the types of UAS whose design, production, and maintenance shall be subject to certification, the Implementing Regulation introduces detailed provisions for UAS operations and its personnel, identifying three categories of unmanned aircraft operations according to different levels of risks: open (low risk), specific (medium risk), and certified (higher risk) (Scott [2021], Trimarchi [2023]). The latter category includes operations by UAV, involving the carriage of persons; it follows that air taxis belong to this category and, therefore, their operations shall require the certification of the vehicle, pursuant to Delegated Regulation (EU) 2019/945, such as the certification of the taxi operator and, where applicable, the licensing of the remote pilot. On 22 April 2021 the European Commission adopted a package regulating U-space. It consists of three regulations whose provisions will be applicable from 26 January 2023: the Implementing Regulation (EU) 2021/664 “on a regulatory framework for U-space,” the Implementing Regulation (EU) 2021/665 “amending Implementing Regulation (EU) 2017/373 as regards requirements for providers of air traffic management/air navigation services and other air traffic management network functions in the U-space airspace designated in controlled airspace,” and the Implementing Regulation (EU) 2021/666 “amending Regulation (EU) No. 923/2012 as regards requirements for manned aviation operating in U-space airspace.” According to Art. 2.1. Regulation (EU) 2021/664 “U-space airspace” means a UAS designated by Member States, where UAS operations are allowed to take place only with the support of U-space services. The aim of the EU legislation is to ensure that, thanks to specific harmonized rules, coordination procedures and communication facilities in the U-space airspace are in place so that the UAV may safely operate alongside manned aircraft, respecting applicable security and privacy requirements. Considering that U-space

will contribute to guarantee a safe and secure presence for air taxis and drones flying over urban areas, the impact of Regulation (EU) 2021/664 on UAM is evident. Although the rules described above represent an important step forward, unfortunately they do not relate in particular to urban air mobility. Therefore, as noted by Ravich [2020, p. 666] in relation to the FAA regulation, but whose considerations appear to be extendable to EU legislation, “for remotely piloted and autonomous UAM operations to become regular and reliable, lawmakers will need to modify rules currently applicable to drones, or else develop new regulations.”

V. Concluding Remarks In conclusion, the success of UAM will mainly depend on several factors: ●

●

●

technological development, capable of allowing the construction of safe manned and unmanned air taxis and of automatic drones; a clear and complete regulatory framework on the many legal issues raised by UAM; public and social acceptance of UAM, which requires an effective strategy for communicating with the public. For this reason, studies on the societal acceptance of UAM have been carried out by the EASA in 2021 and by scholars (Behme and Planing [2020]).

UAM is already creating and, in the future, will create many challenges for air law regulators. Monica Brignardello

References Andrea Trimarchi, Technological Certainties and Regulatory Doubts: An Overlook at Unmanned Aviation and Urban Air Mobility in Europe, International Conference on Unmanned Aircraft Systems (ICUAS) June 6–9, 2023, Lazarski University, Warsaw, Poland, 221–228, (IEEE 2023). Anna Masutti and Filippo Tomasello, International Regulation of Non-Military Drones, (Edward Elgar 2018). Benjamyn I. Scott, ‘Open Skies for Unmanned Aircraft in Europe: An Outlier or a New monica brignardello

520  elgar concise encyclopedia of aviation law Approach?’, 46(1) Air & Space Law 57–80 (2021). Commission Implementing Regulation (EU) 2021/664 of 22 April 2021 on a regulatory framework for U-space. Commission Implementing Regulation (EU) 2021/665 of 22 April 2021 amending Implementing Regulation (EU) 2017/373 as regards requirements for providers of air traffic management/air navigation services and other air traffic management network functions in the U-space airspace designated in controlled airspace. Commission Implementing Regulation (EU) 2021/666 of 22 April 2021 amending Regulation (EU) No 923/2012 as regards requirements for manned aviation operating in U-space airspace. Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft. Commission Delegated Regulation (EU) 2019/945 of 12 March 2019 on unmanned aircraft systems and on third-country operators of unmanned aircraft systems. EASA, ‘Study on the Societal Acceptance of Urban Air Mobility of UAM Operations, 2021’ https://www​.easa​.europa​.eu​/domains​ /urban​-air​-mobility​-uam. Elham Fakhraian et al., ‘Towards Safe and Efficient Unmanned Aircraft System Operations: Literature Review of Digital Twins’ Applications and European Union Regulatory Compliance’, 7(7) Drones, 478 (2023). European Parliament and Council Regulation (EU) 2018/1139 of 4 July 2018 on common rules in the field of civil aviation and

monica brignardello

establishing a European Union Aviation Safety Agency (UE Basic Regulation). FAA, ‘Federal Aviation Act’ (1958). FAA, ‘Code of Federal Regulations. Part 107’ (2016). Jana Behme and Patrick Planing, ‘Air Taxis as a Mobility Solution for Cities – Empirical Research on Customer Acceptance of Urban Air Mobility’, in Patrick Planing, Patrick Müller, Payam Dehdari and Thomas Bäumer (eds), Innovations for Metropolitan Areas. Intelligent Solutions for Mobility, Logistics and Infrastructure Designed for Citizens, (Springer 2020). Konstantinos Andritsos, et al., ‘What is in a Name: Defining Key Terms in Urban Air Mobility’, 105(81) J Intell Robot Syst 1–9 (2022). Mario Barbano and Valentina Costa, Implementing Urban Air Mobility in a Multi-Level Regulatory Framework: Perspectives from the EU, International Conference on Unmanned Aircraft Systems (ICUAS) June 6-9, 2023, Lazarski University, Warsaw, Poland, 895-902, (IEEE 2023). Marta Tojal et al., ‘Analysis of the Definition of Urban Air Mobility – How its Attributes Impact on the Development of the Concept’, 59 Transportation Research Procedia 3–13 (2021). Nanci K. Carr, ‘Programmed to Protect and Serve: The Dawn of Drones and Robots in Law Enforcement’, 86(2) J Air L & Com 183–218 (2021). Timothy M. Ravich, ‘On-Demand Aviation: Governance Challenges of Urban Air Mobility (UAM)’, 124(3) Penn St L Rev 657–690 (2020).

152. U-space

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I. Introduction to U-space “U-space” is the term used in Europe for Unmanned Traffic Management (UTM). Unmanned aircraft systems, also known as drones, are used in increasingly wide sectors and have a positive impact on society and economic growth. It is estimated that their use will bring about a revolution in society by transforming our cities and creating new professions. According to the European Air Traffic Management (ATM) Masterplan, by 2035 the skies will be occupied for the most part by drones “that will operate beyond visual line of sight (BVLOS)” in U-space and will provide different types of services, from land control to inspection, infrastructure, goods delivery, and passenger and goods transport, etc. To develop and support commercial operations with drones, it is essential to adopt policies to organize the integration and safe and efficient management of unmanned aircraft systems (UAS) in airspace (Masutti, Tomasello [2018]). The European Union, with the SESAR Joint Undertaking (SESAR JU) and EUROCONTROL, has begun to draft a roadmap to prepare a single regulatory framework that allows drones to operate in the air navigation system. In 2016, at the conclusion of the European High-Level Conference on Drones, the “Warsaw Declaration” acknowledged “the need for urgent action on the airspace dimension, in particular the development of the concept of ‘U-Space’ on access to low level airspace especially in urban areas.” A first definition of U-space is included in the “U-space blueprint” document drawn up in 2017 by the SESAR JU. U-space is defined as a set of “new services and specific procedures designed to support safe, efficient and secure access to airspace for large numbers of drones. These services rely on a high level of digitalisation and automation of functions, whether they are on board the drone itself, or are part of the ground-based environment.” For the progressive development of U-space, the blueprint document identifies four phases: ●

U1 U-space foundation services provide e-registration, e-identification, and geofencing;

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●

U2 U-space initial services support the management of drone operations and may include flight planning, flight approval, tracking, airspace dynamic information, and procedural interfaces with air traffic control; U3 U-space advanced services support more complex operations in dence areas and may include capacity management and assistance for conflict detection; U4 U-space full services support the full operational capability of U-space, particularly services offering integrated interfaces with manned aviation.

On the occasion of the conference convened in 2018 by the European Commission, European and national authorities and representatives of the sector signed the Drones Amsterdam Declaration on 28 November 2018. The Declaration “invited the European Commission and EASA, with the support of the SESAR JU and EUROCONTROL, and in close cooperation with Member States, to develop, as a matter of urgency, an institutional, regulatory and architectural framework for a competitive U-space services market.” The document underlines the need to create a single European institutional framework for a U-space services market in which drones can operate in the Single European Sky, with standard performance and requirements. The declaration encourages cities to find multimodal solutions that can integrate the so-called third mission in urban planning processes. To answer this need, on 22 April 2022, the European Union adopted the U-space regulatory package, which outlines a common discipline to allow safe operations in U-space between manned and unmanned aircraft, to prevent collisions between drones and manned aircraft, and to mitigate the risks of ground drone traffic. The package includes three implementing Regulations, which will be applicable from 26 January 2023. The first provision is the Commission Implementing Regulation (EU) 2021/664 on a regulatory framework for U-space. The regulation establishes rules and procedures for conducting UAS operations safely. The second, Commission Implementing Regulation (EU) 2021/665 amending Implementing Regulation (EU) 2017/373,

521

522  elgar concise encyclopedia of aviation law regards requirements for providers of Air Traffic Management/Air Navigation Services (ATM/ANS) and other Air Traffic Management network functions in the U-space airspace designated in controlled airspace. The regulation adopts coordination procedures among ATM units, U-space service providers, and UAS operators to allow safe operations between manned and unmanned aircraft in U-space. The third regulation of the package, Commission Implementing Regulation (EU) 2021/666, 22 April 2021 amending Regulation (EU) No. 923/2012, regards requirements for manned aviation operating in U-space airspace. The regulation establishes the requirements that manned aircraft, which do not require an Air Traffic Control Service to operate in U-space airspace, must be visible electronically to signal their presence to U-space service providers. On adoption of this third package, Commissioner for Transport Adina Vălean said: “Drones are a clear part of the future transport and logistics landscape. There is vast potential when it comes to new cargo and delivery services, as well as other innovative applications, including drone flights with passengers on board in the future. This has clear added value in terms of achieving our decarbonisation, digitalization and resilience ambitions, and the U-Space package is an important step towards creating the wellfunctioning, trusted and safe enabling environment that we need to develop a competitive EU drone services market.”

II. U-space Regulatory Framework According to EU Regulation 2021/664, States can establish, on the basis of an assessment of operational, safety, and security risks, a “U-space airspace,” i.e., a UAS geographical zone where only UAS operations may take place with the support of U-space service. Member States will establish the capabilities and performance requirements of UAS for U-space airspace, along with the requirements for the performance of U-space services and the operating conditions and airspace restrictions applicable. States can designate U-space airspaces within a controlled airspace. In this case, however, it is necessary to provide systems to ensure a dynamic reconfiguration of the adele marino

airspace, to maintain the segregation between manned and unmanned aircraft. In the U-space airspace defined by the States, EU Regulation 2021/664 will apply to UAS operators, U-space service providers, and communication service providers, in all cases of operations carried out only with “open” and “specific” UAS (Reg. EU 2019/947). UAS operations carried out with drones with a takeoff mass of less than 250 grams falling within subcategory A1, class C0 vehicles and operations in the context of aeroclubs or authorized associations are excluded from the application of the Regulation. To ensure the safe, secure, and efficient operation of a large number of UAS in U-space, the provision of U-space services based on digital services and automation of functions is envisaged. In particular, four mandatory U-space services are foreseen. 1) network identification services (Article 8), which must provide the registration number of the operator, the serial number of the aircraft, the geographical position, and the direction of flight in real time, as well as any status of emergency. The data must be shared with other users of U-space airspace; 2) geo-awareness services (Article 9), which must promptly provide information on airspace restrictions or temporary restrictions and UAS geographical areas; 3) UAS flight authorization services (Article 10), which will provide operators with the authorization for each flight, setting terms and conditions; 4) traffic information services (Article 11), which must report the presence of other air traffic in the vicinity, including position and time of reporting to UAS operators as well as the speed, route, or direction and any state of emergency of the aircraft. On the basis of the risk assessments made taking into account the complexity and density of traffic, States may also provide two other services: 1) a weather information service (Article 12), which must provide weather information that is useful for operational decisions;

u-space  523 2) a conformance monitoring service, which must notify operators of any violations of the authorizations granted, and, in a proactive perspective, the service provider must also warn other UAS operating in the vicinity. For the management of UAS traffic, it is necessary to create a common information service that consists of the dissemination of static and dynamic data for the provision of U-space services. Member States, in accordance with Article 5, should make available a series of data, such as the horizontal and vertical limits of their U-space, the relevant geographic areas, restrictions, and the list of certified U-space service providers that provide the service in the air. Access to common information services must be granted without discrimination and with the same levels of quality and data protection to competent authorities, Air Traffic Service providers, U-space service providers, and UAS operators. States may designate a single provider of common information services that provides such services in all airspace under their responsibility. U-space services will be provided by legal persons certified as U-space service providers (USSP). The regulation in Chapter V establishes the requirements for obtaining the issue of certification and its maintenance. The provider is responsible for providing the service to operators in the airspace in which it operates and will have to coordinate with Air Traffic Services providers (ATS), with other USSPs, and with the common information service provider (CISP) for exchange of information and the proper functioning of all operations. Therefore, to carry out operations in U-space, certified UAS operators must request authorization from their USSP through the flight authorization service (Article 10). States will have to establish which U-space service model to adopt, whether centralized, distributed, or mixed. The regulatory framework adopted will allow the drone services market to be developed by streamlining and automating processes for safe flights with UAS. In 2023, States are mandated to implement European legislation by establishing certifications for USSPs and possibly for CISP.

U-space services will evolve over time and an environment with high levels of automation and interaction based mainly on digital information and data exchange will be configured. It should reach the U4 level foreseen in the U-space blueprint document. In the not-too-distant future, manned and unmanned air transport will have to coexist and be coordinated in order to safely manage airspace (Huttunen [2019]; Franchina [2020]). However, many issues remain to be regulated “to ensure the safety of all airspace users, and people and infrastructure on the ground” (Barrado et al. [2020]), such as aspects related to liability for traffic and damage to third parties (Konerta, Kotlińskib [2020]). Adele Marino

References Anna Konerta and Mateusz Kotlińskib, ‘U-Space – Civil Liability for Damages Caused by Unmanned Aircraft’, [2020], Transportation Research Procedia, 304–312. Anna Masutti and Filippo Tomasello, International Regulation of Non-Military Drones, (Edward Elgar Publishing, 2018). Commission Implementing Regulation (EU) 2021/664 on a regulatory framework for the U-space, OJ L 139/161. Commission Implementing Regulation (EU) 2021/665 amending Implementing Regulation (EU) 2017/373 as regards requirements for providers of air traffic management/air navigation services and other air traffic management network functions in the U-space airspace designated in controlled airspace, OJ L 139/184. Commission Implementing Regulation (EU) 2021/666 amending Regulation (EU) No 923/2012 as regards requirements for manned aviation operating in U-space airspace, OJ L 139/187. Cristina Barrado, Mario Boyero, Luigi Brucculeri, Giancarlo Ferrara, Andrew Hately, Peter Hullah, David MartinMarrero, Enric Pastor, Anthony Peter Rushtonand, and Andreas Volkert, ‘USpace Concept of Operations: A Key Enabler for Opening Airspace to Emerging Low-Altitude Operations’, [2020], Aerospace, 7. EUROCONTROL UAS ATA Integration. Operational Concept, (2018). adele marino

524  elgar concise encyclopedia of aviation law European Commission, ‘U-space Blueprint’, (2017). Federico Franchina, ‘The New European Union Regulation on Unmanned Aircraft System and the Air Navigation Services’, [2020], Diritto e politica dei trasporti, 40–60.

adele marino

Mikko Tapani Huttunen, ‘The U-space Concept’, [2019], Air and Space Law, 69–89. Sesar European ATM Masterplan. Roadmap for the safe integration of drones into all classes of airspace (2018).

153. The Warsaw Convention (1929)

II. Convention Provisions

I. Overview Short title for the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929. The Warsaw Convention was the first convention of its kind providing uniform rules to regulate air carrier liability in the carriage of passengers, baggage, and cargo on international flights. It is one of the most ratified conventions in the field of international private air law with 152 State parties to the convention (As at September 2023) and remains a critical convention in the field, still regulating air carrier liability within many States, despite the intended total replacement of the Warsaw Convention with the Montreal Convention in 1999. The Warsaw Convention contains 41 articles spread across five chapters covering Scope-Definitions, Documents of Carriage, Liability of the Carrier, Provisions Relating to Combined Carriage, and General and Final Provisions. The Warsaw Convention was drafted at a time of a fledgling aviation industry, and the provisions within the convention reflect an intention to protect that industry, most notably with strict liability limits. In addition to setting liability limits, the Warsaw Convention resolved and eliminated many of the difficult conflict of laws questions that had previously arisen under differing legal systems, providing distinct jurisdictions where the claims may be brought. One of the key aspects of the Warsaw Convention is the presumption of liability up to the liability limits, with the plaintiff needing to prove only damage and the identification of an “accident” within the factual parameters of the convention. The Warsaw Convention is frequently cited in hand with other conventions and protocols that have sought to amend the provisions; most notably the Hague Protocol 1955 (which doubled liability limits) and the Montreal Protocols (which converted the liability limits from the franc Poincaré to Special Drawing Rights). Further details of the key provisions of the Warsaw Convention are set out below.

1. Chapter I: Scope – Definitions Article 1 sets out the application of the Warsaw Convention to international carriage of person, luggage, or goods performed by aircraft for reward and the application of the convention to gratuitous carriage performed by an air transport undertaking. The article provides clarification on how international carriage is calculated. Carriage must involve either (a) carriage between two High Contracting Parties to the Warsaw Convention (i.e., a single ticket) or (b) carriage with a departure and destination in a single High Contracting Party, but with an agreed stopping place in a territory under the sovereignty, suzerainty, mandate, or authority of another power (i.e., a return ticket). It is irrelevant whether that other State, if only an agreed stopping place, is a party to the Warsaw Convention. Critically, the focus of the interpretation is on the contract made between the parties (i.e., the ticket). Subjective intention is not considered, but objective understanding is. The focus on the contract and how that contract was formed also informs the position with respect to successive air carriers under Article 1(3). For an international trip involving multiple legs, even if some of those legs are purely domestic and operated by different carriers, the entire carriage (including the domestic legs) will be considered to fall under the convention if booked together at the outset. Where multiple carriers are used and the carriage is booked through a travel agent, the knowledge of the travel agent has been held to be imputed to the carrier in order to establish that the entire trip was booked together at the outset in the knowledge of all parties to the contract. Article 2 provides that the Warsaw Convention applies to international carriage by air performed by the State. However, at the time of drafting the Warsaw Convention an Additional Protocol to Article 2 was agreed, which provided a High Contracting Party’s right to declare at the time of their ratification of the Warsaw Convention that Article 2, paragraph 1 did not apply to carriage performed by them as a State. Many High Contracting Parties made this reservation with their ratification. 2. Chapter II: Documents of Carriage Chapter II comprises 14 articles relating to different types of tickets and the requirements

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526  elgar concise encyclopedia of aviation law relating to those tickets. Article 3 covers requirements for passenger tickets, Article 4 requirements for baggage tickets, and Articles 5–16 covering different aspects of requirements of air consignment notes. In relation to passenger tickets, critically an acceptance of a passenger onboard a flight without a passenger ticket having been delivered or with a ticket that does not include the notice requirements of Article 3(1)(c) prevents a carrier from relying on the limits of the Warsaw Convention. Whatever type of ticket or note, the absence, irregularity, or loss of the ticket/note itself does not affect the application of the Warsaw Convention, effectively ensuring that a carrier’s failure to provide a ticket or include the relevant notice does not prejudice the rights of the passenger. 3. Chapter III: Liability of the Carrier Chapter III deals with arguably the core of the Warsaw Convention; the liability of the carrier. Articles 17, 18, and 19 deal with the different factual circumstances in which a carrier may be found liable for bodily injury to a passenger, for loss, destruction, or damage to luggage or goods and for delay, respectively. Pursuant to Article 17, a carrier will be liable for damages sustained in the death, wounding, or other bodily injury if that death, wounding, or bodily injured occurred consequent to an “accident” that took place onboard the aircraft or in the course of embarking or disembarking an aircraft. Each of these terms has been the subject of considerable litigation around the world. The leading judgments have defined bodily injury to exclude purely psychological injury, with damages for psychological injuries recoverable only if they occurred consequent to a physical injury suffered in an accident within the meaning of Article 17. An accident has been defined to be an unexpected or unusual event that is external to the passenger (Air France v. Saks). Much consideration has been given to where embarkation begins and disembarkation ends. Damage for destruction, loss, or damage to registered luggage (checked in) and goods arises if the damage was sustained during the period that the goods were in the charge of the carrier (Article 18(2)). For damage occurring during carriage by land, sea, or river, consideration will be given to the terms of the contract if they so provide that such carriage took place during performance of a contract for carriage by air (Article 18(3)). peter neenan

Upon application of the damage to the above factual parameters, the Warsaw Convention provides presumed liability, but provides the application of a defense to the carrier at Article 20 if it can provide that he/ she and his/her agents have taken all necessary measures to avoid the damage or that it was impossible for him/her to do so. Article 21 provides for the application of the contributory negligence doctrine, subject to interpretation of application by the court seized of the case. Article 22 provides the primary protection for the carrier: a system of strict limits of liability in the carriage of passengers, luggage, and goods. In the carriage of passengers, liability is limited to the sum of 125,000 franc Poincaré. The franc Poincaré was a previously used currency for international conventions calculated at 65.5 milligrams of gold of millesimal finesse 900. This currency was replaced in favor of Special Drawing Rights in 1975 within four Montreal Protocols. Most States have ratified the Montreal Protocols such that the liability limit under the Warsaw Convention is now expressed as 8,300 Special Drawing Rights. In the carriage of registered luggage and goods the liability limit is 250 francs Poincaré per kilogram (17 Special Drawing Rights per kilogram). This limit can be extended with the provision of a special declaration, and additional sum having been paid, up to the amount paid. In relation to objects of which the passenger takes charge himself, liability is limited to 5,000 francs Poincaré per passenger (332 Special Drawing Rights). It should be noted that in relation to damages claimed arising from injury or death of a passenger and damage to luggage, the sum stated is not an absolute right but subject to evidence of damage up to, and/or above, these limits. In practice, in relation to claims arising under the Warsaw Convention claims ordinarily exceeded the very limited sums. Article 23 provides that a carrier cannot contractually relieve itself or lower its liability below the figures provided by the Warsaw Convention (but such carrier may contractually increase the liability limit as happened with the adoption of the IATA Inter-carrier Agreement and Measures to Implement the Inter-carrier Agreement in the 1990s). Article 24 has been the subject of considerable litigation culminating in the El Al Airlines v. Tseng Supreme Court decision in the United

the warsaw convention (1929)  527 States and the Sidhu v. British Airways House of Lords decision in the United Kingdom. The litigation concerns the preemption principle embodied in Article 24. This provides that an action for damages, however founded, can only be brought subject to the conditions and limits set out in the Warsaw Convention. The effect of Article 24 is not only to limit all claims to the limit of liability under Article 22, but also to exclude any claims that do not fall within the factual parameters of Article 17. This means events occurring between embarkation and disembarkation that are not accidents will not be compensated, and injuries that are purely psychiatric in nature will not be compensated. Another key area for litigation concerns Article 25, which provides the only route to higher compensation for a passenger or person claiming lost/damaged luggage or goods. Under Article 25, the carrier shall not be able to exclude or limit its liability if the damage was caused by the carrier’s willful misconduct. Interpretation of willful misconduct has varied from one jurisdiction to another, but generally a plaintiff must prove on an objective basis that there was a high degree of negligence and on a subjective basis that the carrier was aware that its behavior may cause damage and was indifferent to the outcome. Practically, this provision was complicated in application by the passengers’ exclusion from any accident investigation under Annex 13 of the Chicago Convention of 1944. The courts have infrequently held that an accident was caused by willful misconduct and this has remained a high burden to overcome. In relation to actions brought in respect of luggage and goods damage, Article 26 provides some practical requirements. A person must complain that the goods are damaged upon receipt or else this will be prima facie evidence of them having been received in good condition. In relation to time limits a complaint must be made to the carrier within three days of receipt of luggage, seven days of receipt of goods, or 14 days from the date the goods have been placed at his/her disposal in the case of delay. Article 27 provides a practical route to liability in the event of death of a person liable, albeit that this provision is replicated in the laws of most States in any event. The Warsaw Convention provides distinct jurisdictions where a claim may be brought in Article 28. These are exclusive (see Article

24). Under the Warsaw Convention a plaintiff (either a passenger him/herself or a person entitled under the applicable jurisdiction and law to bring a claim arising out of the death of a passenger) must bring their claim in a High Contracting Party where either (a) the carrier is ordinarily resident; (b) the carrier has its principal place of business, (c) has an establishment by which the contract has been made, or (d) before the court having jurisdiction at the place of destination. Which of these jurisdictions for the action is the plaintiff’s choice, although there is differing opinion between courts of different jurisdictions as to whether this is an absolute choice (as is the approach taken by the English courts) or still subject to a court’s ordinary jurisdiction challenges, most notably the forum non conveniens doctrine, as is the approach taken in the United States. The US position is informed by the final paragraph of Article 28 providing that questions of procedure shall be governed by the law of the court seized of the case, with the US courts holding that the forum non conveniens doctrine is a procedural question. In practice, this is frequently a choice of three jurisdictions, with the principal place of business of the carrier and where it is ordinarily resident often being the same place. The destination referred to in this Article is the final destination, as referred to in the ticket concluded between the parties. The Warsaw Convention provides a selfcontained limitation period of two years from the date of arrival at the destination or when it ought to have arrived if the aircraft did not make it to the destination under Article 29. Article 30 provides rules to determine liability in cases in which carriage falls within the successive carriage provisions of Article 1(3). 4. Chapter IV: Provisions Relating to Combined Carriage Chapter IV, Article 31 sets out the effect of the convention on combined (i.e., air, land, and sea) carriage, such that the Warsaw Convention applies to the carriage by air and the parties may, if they so wish, extend the provisions (or create alternative provisions) to carriage by other modes. 5. Chapter V: General and Final Provisions Chapter V provides the final provisions in Articles 32 to 41. Articles 32–33 provide a consumer-focused approach to contractual peter neenan

528  elgar concise encyclopedia of aviation law variations, such that clauses within contracts for carriage that infringe the provisions of the Warsaw Convention shall be null and void, but those that do not conflict with the provisions of the Warsaw Convention are allowed. Article 34 provides that in extraordinary circumstances (experimental trial by air navigation undertakings and carriage in extraordinary circumstances) the Warsaw Convention shall not apply. In practice, this provision is rarely invoked. The remaining provisions provide practical rules relating to interpretation of time, language, and ratification procedure.

III. Domestication In addition to being one of the most ratified conventions in the field of international private air law, the Warsaw Convention has provided a model for many States in drafting their domestic legislation on domestic air carriage, which, in some cases even now provides rules for domestic air carriage where the State has ratified the later successor convention, the Montreal Convention of 1999, for international carriage by air. Peter Neenan

peter neenan

References Additional Protocol Nos. 1 to 3 and Montreal Protocol No. 4 to amend the Warsaw by both The Hague Protocol and the Guatemala City Protocol, signed at Montreal on 25 September 1975 Convention as amended by The Hague Protocol or The Warsaw Convention as amended. Air France v. Saks Case No. 83-1785, Decision of 4 March 1985, 470 US 392, at 405 (1985). Annex 13 (Aircraft Accident and Incident Investigation) to the Convention on International Civil Aviation signed in Chicago on 7 December 1944, ICAO document no. 7300. El Israel Airlines v Tsu Yuan Tseng, 525 US 1999. The Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12 October 1929. The IATA Inter-carrier Agreement (IIA). The IATA Measures to Implement the Intercarrier Agreement (MIA). The Protocol to amend the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12 October 1929, done at The Hague on 28 September 1955.

154. Wilful Misconduct See entries: 60. Delay under Private International Air Law; 94. Just Culture (Aviation); 100. Liability for Damage to Cargo; 101. Liability for Death and Personal Injuries

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Index Acceptable Means of Compliance (AMC) 211, 393, 394 see also safety accident and incident investigation definitions 56–7 draft and final report 58–9 international cooperation in the context of 58 Investigator-in-Charge (IIC) 58 Just Culture 328 notification obligations of States in the context of 57–8 protect safety information 58 safety database 59 safety recommendations 59 actual total loss of aircraft see Hull insurance aerial navigation definition 2 historical perspective 2 legal framework, including the Chicago Convention (1944) 2–4 Performance-Based Navigation (PBN) 281 Radio Frequency Interference (RFI) 282 Regional Air Navigation Plan (RANP) 259 route restrictions 169, 370–71 see also aeronautical information aerial piracy see aircraft, interception; aircraft hijacking Aerial Work (AW) 18, 275 aeronautical information Aeronautical Information Circular (AIC) 8 Aeronautical Information Management (AIM) 5, 6 Aeronautical Information Publication (AIP) 6, 20, 23, 260 Aeronautical Information Regulation and Control (AIRAC) 5, 7, 398 Aeronautical Information Service (AIS) 5–6, 397 NOTAMs 6–7 pre-flight information bulletins (PIB) 7–8 air cargo under the Chicago Convention 9–10 contract of carriage of goods 10 customs and international trade law 11–12 liability 10–11 exclusion of liability 349 limits of liability 350–51 Pre-Loading Air Cargo Information (PLACI) 12 transportation belly cargo 206–7 combination carriers 205 costs of services 205–6

drones 207 e-commerce 206 fuel efficiency 206 air carrier(s)/airlines all-cargo airlines 205 European air carriers 235 legal context governing the position of 13–14 low-cost carriers (LCC) 15 mail services, operation of Contract Air Mail (CAM) routes 205 in Europe 25–6 in Latin America 27–8 in the United States 26–7 metal neutral joint ventures between 15 nationality clauses under bilateral air services agreements 408–9 decision making with respect to 390 liberalisation of 410 liberalised clauses 389–90 purpose of 389 restrictions in national regulations 409–10 in terms of ownership and control 408–9 traditional nationality clauses 389 non-scheduled air carriers 15 scheduled air carriers 14–15 air commerce commercial and non-commercial aviation 18 legal context 17–8 regulation and oversight of 18–9 Air Defence Identification Zones (ADIZs) definition 20 interception of civil aircraft in 23 origin and status 20 in relation to Flight Information Region (FIR) 20 State aircraft operating in 22–3 stretching beyond national airspace 21 Air Navigation Commission (ANC) 259, 321, 444 Air Navigation Service Provider (ANSP) 259–61, 511, 512 certification 31 Civil Air Navigation Services Organization (CANSO) 31 definition 29 liability of ANSP providers 364 operation as autonomous entities 29–30 operation as multinational corporations 30 organisational models of 29–30 recent developments 31 Air Navigation Services (ANS) 259, 362 multinational organisations operating 363 operation of cross-border services 363

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index  531 regimes governing ANS 363–4 State agencies managing 362 Visual Flight Rules (VFR) traffic 62 see also aerial navigation; overflight Air Operator Certificate (AOC) 187, 220, 276 under EU regulations 33 under international air law 32–3 under national laws 33–4 terminology 32 Air Services/Transport Agreements (ASAs/ATAs) applicability of the Chicago Convention 39 Bilateral Air Service Agreements (BASAs) 125, 315, 385 bilateral and multilateral agreements 40 designation of airlines under 385–6 EU external aviation policy 40–41 EU-US Open Skies agreement (2007/2010) 41–2 Freedoms of the Air 39, 263–5 Open Skies policy 40 overview 39, 191, 199, 219, 235, 313 ownership and control of airlines 408–9 route pools 425, 426 see also air carrier(s)/airlines, nationality clauses; aviation policies; Freedoms of the Air air services in the EU internal market applicability of EU Regulation 1008/2008 401–403 changes caused by COVID-19 402 conditions for the operation of aircraft in terms of MTOM 401 definition 401 objectives 401 operating licenses 402 operation of non-scheduled air services 402 origin of the internal air transport market 401 air traffic Commercial Air Transport (CAT) 275, 276 under Open Skies Agreements 463–4 see also Pool Agreements operated in a scheduled service 461–3 Air Traffic Control (ATC) see Air Traffic Management (ATM); Air Traffic Services (ATS) Air Traffic Management (ATM) Air Space Management (ASM) 45 Air Traffic Flow Management (ATFM) 45 aspects of 2, 7, 31, 231, 259, 268 Future Air Navigation Systems (FANS) Committee 43, 281 in relation to airspace sovereignty 126–7 Air Traffic Services (ATS) 43–5 Air Traffic Control (ATC) 2, 3, 7, 44, 53, 62, 126, 259 Aerodrome Control Service (ADC) 43 Alerting Service (ALRS) 44, 46

Approach Control Service (APP) 43, 47 ATC collision avoidance 61 Flight Information Service (FIS) 44, 46 see and avoid 61–2 Visual Airborne Collision Avoidance 61 definition 46 description of services 2, 3, 7, 43–5, 62, 126, 211, 259 Guidance Material (GM) 211 Air Transport Agreements (ATAs) see Air Services/Transport Agreements (ASAs/ ATAs) air transport cases attachment 23, 57, 59, 60, 66, 72, 73, 305 case law under the Montreal Convention (1999) 324–6 decided via arbitration 327 under the EU regime 326–7 air transport contract under applicable conventions 202–3 carrier, role of air transport contract in a 204 courier services in 203 definition 202 freight forwarders, role of air transport contract in a 203 multimodal transport 204 subcontracting vs. successive carriage 204 Air Transport Regulation Panel (ATRP) 410 Air Waybill (AWB) case law 51 character and purpose 49 conditions of contract 50 delivery and description 49–50 electronic air waybills 50–51 under the Montreal Convention (1999) 49, 50 under the Warsaw Convention (1929) 49 see also air transport contract aircraft under the Chicago Convention (1944) 53–4 interception 303–6 Maximum Take-Off Mass (MTOM) 196 Maximum Take-Off Weight (MTOW) 206 military and civil aircraft, distinction between 52–3 ownership and registration of aircraft 81 under regional regulation 54 registration and nationality of 217 in relation to sovereignty in national airspace 303 repossession see repossession of aircraft terminology 52 Unmanned Aerial Vehicles (UAVs) 52, 81 see also Unmanned Aircraft System (UAS) VTOL-capable aircraft 116 aircraft collision Air Traffic Control (ATC) collision avoidance 61

532  elgar concise encyclopedia of aviation law bird strikes affecting 61 conflict management 61 Controlled Flight into Terrains (CFITs) 61 ground collisions between 60–61 occurrence categories 60 see and avoid 61–2 tactical conflict management 61 Traffic Collision Avoidance System (TCAS) 260 Visual Airborne Collision Avoidance 61 aircraft deregistration grounds and procedure 217 Irrevocable Deregistration and Export Request Authorization (IDERA) credit financing 300 defaulted debtor 299–300 definition 218, 299 implementation 300–301 international interest 299–300 remedies 299 protection of security interests 217–18 aircraft documentation applicability of the Chicago Convention (1944) and its Annexes 65–6 Certificate of Airworthiness (CoA) 65 under the Chicago Convention (1944) 129–30 definition 128 under international standards (ICAO) 128 Mandatory Continuing Airworthiness Information (MCAI) 130 under primary aviation legislation 128–9 regulatory document of 130 Certificate of Registration 64–5 crew licenses 65 mandatory documentation 64–5 safety assurance 64 technologies and business practices 66–7 aircraft financing 69–70 under the Cape Town Convention (2001) and Protocol (2001) 73, 74, 77, 78, 80, 183, 217 dry leasing of aircraft 69–70 financial leases 71–2 under the Geneva Convention (1948) 73, 77 international law conventions 72–4, 77–8 operating leases 72 purchasing of aircraft 75–6 Qualifying Declarations under the Cape Town Convention (2001) 180 under the Rome Convention on Precautionary Arrest of Aircraft (1933) 72, 73 subleasing 488–90 see also subleasing agreements wet leasing of aircraft 69–70 aircraft hijacking under the Beijing Convention (2010) 294

definition 292 under the Geneva Convention on the High Seas (1958) 292 ICAO’s responsibilities 292–3 under the Tokyo Convention (1963) 292–3 aircrew flight time limitations 251 under international law 83 labour conditions 84 see also labour relations personnel licensing 83–4 social and governance 85 strikes 84 technological advances 84 wildcat strike 253 airline alliances benefits 87 classification 87 impact of airline alliances on competition 89 integration and cooperation 87 interline agreements 88 International Airlines Group (IAG) 369 see also commercial agreements between airlines; Pool Agreements Airport Managing Body (AMB) airport charter 107–8 concession agreements 108 definition 106 evolution 106–7 management contracts 108 privatisation 108–9 Public-Private Partnerships (PPP) models 107, 109 airports airport infrastructure airport operators’ decarbonisation 101 applicability of ICAO and EU rules 114–6 ground operations at 103–4 heliport 116 off-block time 213 related services 100, 114 runway capacity at 114 terminal capacity at 114 vertiport 116 airport management airport-airline/concession agreements 374–5 Airport Managing Body (AMB) 8 ownership and management of 114 Passengers with Reduced Mobility (PRM), facilitation of 92–93 airport security ICAO security standards 110 legal framework for 110–11 measures and screening of traffic in connection with 112 terrorist attacks 111

index  533 charges aeronautical and non-aeronautical activities 87 concept 91 environmental charges 92 ICAO recommendations 91 landing and take-off charges 92 parking charges 92 passenger charges 92 security charges 92 congestion Air Traffic Management in relation to 97 arrivals and departures 95 Aviation Structural Mechanic Airman (AMAN) planning systems 97 mitigation models 95–7 connectivity definition 114 measures 114 airspace as defined and regulated in international air law and space law 118–20 sovereignty under the Chicago Convention (1944) 123–5 under the Paris Convention (1919) 123 in relation to Air Traffic Management (ATM) 126–7 Airworthiness, Certificate of (CoA) see aircraft documentation Annexes to the Chicago Convention (1944) adoption of 132 ICAO SARPs 132–4 terminology 132 Universal Safety Oversight Audit Programme (USOAP) 259 see also Chicago Convention (1944); International Civil Aviation Organization (ICAO) arbitration 136–8 see also air transport cases, attachment Association of Southeast Asian Nations (ASEAN) 266, 367, 390, 464 aviation policies deregulation policy of the US 239 EU external aviation policy 40–41 liberalisation of nationality clauses 389, 390, 410 Open Skies policy 40 see also Air Services/Transport Agreements (ASAs/ATAs); air services in the EU internal market Aviation Working Group (AWG) 76, 180, 299, 301 Beijing Convention (2010) aircraft hijacking 294 ICAO measures 210 jurisdiction: punishment of offences 293, 448 purpose 162, 210, 294

sabotage of aircraft 448–9 scope 210 see also Montreal ‘Sabotage’ Convention (1971) Bermuda agreements amendments 169 economic provisions 167–8 formal denunciation 168–9 settlement of disputes 168 Bilateral Air Service Agreements (BASAs) see Air Services/Transport Agreements (ASAs/ ATAs) Brexit (aviation) applicability of EU law in the UK post-Brexit 172–3 EU-UK trade and cooperation agreement 171–2 overview 171 UK traffic rights 173 business aviation see General Aviation (GA)/ Business aviation cabotage EU regime regulating 176–7 under international (air) law 175–77 Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) 225 see also environmental protection Certificate of Airworthiness (CoA) see aircraft documentation Chicago Convention (1944) 2–4, 217, 366 aerial navigation 2–4 air traffic 462 aircraft 53 airspace sovereignty 123–5 airworthiness 129–30 see also aircraft documentation Annexes adoption of 132 ICAO SARPs 134 terminology 132 see also International Civil Aviation Organization (ICAO) cabotage 176, 177 content and features 182–4 Freedoms of Air 263 see also Freedoms of the Air International Air Services Transit Agreement (IASTA) 404–5 International Air Transport Agreement 265 multilateral agreements in relation to 40 preparatory works and authentic texts 182 regulation of pilot-in-command 422 right overflight 405–6 Rules of the Air 445 Standards and Recommended Practices adopted under the 184–5 see also International Civil Aviation Organization (ICAO)

534  elgar concise encyclopedia of aviation law unlawful interference with civil aircraft under the 502 Civil Air Navigation Services Organisation (CANSO) 31 Civil Aviation Authority (CAA) 41, 186, 187, 251, 277, 453, 454, 510, 511 code share agreements see commercial agreements between airlines Collision-Avoidance System (CAS) Air Traffic Control (ATC) collision avoidance 61 see and avoid 61–2 Visual Airborne Collision Avoidance 61 Combined Single Limit minimum insurance coverage 196 passenger liability insurance 195 third party liability insurance 195–6 commercial agreements between airlines blocked space agreements 191 code share agreements 191 applicability of competition and antitrust laws 192 liability toward passengers 192–3 relationship with traffic rights 191–2 conditions antitrust laws and competition 192 liability toward passengers 192–3 traffic rights 191–2 co-operation agreements 389 between European and US airlines 192 free flow code share arrangements 191 overview of agreements 190 see also Pool Agreements Committee on Aviation Environmental Protection (CAEP) 228 Committee on Coordination and Liberalisation (COCOLI) 238 Communications, Navigation, and Surveillance (CNS) 281 competition COVID-19 pandemic 197 European framework 199–200 oligopolistic positions 197–206 overview of regimes 197 position of Gulf carriers in relation to 198–9 US anti-trust laws 200–201 Conference on Coordination of Air Transport in Europe (CATE) 238 Convention on International Civil Aviation (1944) see Chicago Convention (1944) COVID-19 pandemic flights reduction as a consequence of 259 impact of 197, 207, 221, 236, 290, 335, 369 labour relations affected by 335 recovery 241 cybersecurity under the Beijing Convention (2010) 210

EU regime governing 210 Information and Communications Technology (ICT) 209 international air law instruments governing 209–10 under the Montreal Protocol (2014), amending the Tokyo Convention (1963) 210 scope 208 delay in arrival 213 assessment of 213–4 definition of 213 in departure 213 liability for damage caused by 215 limits of liability 215–16 in relation to breach or non-performance of the contract 214–15 designation of air carriers under Air Services Agreements (BASAs) 385–6 applicability of safety standards in relation to 387 mandatory nationality requirements for 385–7 overview of designation clauses 385 see also air carrier(s)/airlines, nationality clauses; Air Services/Transport Agreements (ASAs/ATAs) Directorate General for Defence Industry and Space (DEFIS) 242 drones see Unmanned Aircraft Systems (UAS) Dual Frequency Multi-Constellations (DFMC) 283 electronic air waybills 50–51 see also Air Waybill (AWB) Emission Trading System of the EU (EU ETS) as applied to aviation 224–5 emission allowances 224 future of 225 National Allocation Plans (NAPs) 224 environmental protection applicability of the Kyoto Protocol (1997) 227 CORSIA 228 see also Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) EU ETS see Emission Trading System of the EU (EU ETS) Intergovernmental Panel on Climate Change (IPCC) 101, 227 Market Based Measures (MBMs) 228 negative effects 229 progressive deterioration 227 in relation to climate change 227 rules and regulations 227–8

index  535 EU Agency for the Space Programme (EUSPA) Copernicus 245 Galileo 244 Global Satellite Navigation Systems (GNSS) 243 GOVSATCOM 245 history 242–3 origins 242 regulatory framework 243 EUROCONTROL challenges 232 General Air Traffic (GAT) 378 legal framework 231 Operational Air Traffic (OAT) 378 regulation of cross-border air navigation service 231 responsibilities and tasks 231–2 Euro-Mediterranean Aviation Agreement (EMAA) 367 European Air Law Association (EALA) activities 236 constitution 235–6 Lifetime Achievement Award 236 membership of 235 mission 236 European Civil Aviation Conference (ECAC) civil aviation policies 240 establishment 187 framework 239 legal activities 241 objectives of 238 policy statement 239 European Economic Area (EEA) 224 European Economic Community (EEC) 401 Europeans for Fair Competition (E4FC) 199 European Union (EU) air transport market liberalisation abolishment of nationality rules 367 exchange of traffic rights 367 relationship with State sovereignty 366 see also air services in the EU internal market EU framework governing aviation security 159 bilateral agreements 163 international cooperation 159–60 Open Skies agreement 163 oversight regime 159 policy and rulemaking 159 protection of the environment see Emission Trading System of the EU (EU ETS) role of Civil Aviation Authorities (CAAs) 187–8 European Union Safety Agency (EASA) 211, 275–6 Acceptable Means of Compliance (AMC) 393 ATM/ANS program 250

Big Data Project 250 COVID-19 pandemic 250 data analysis 249 European aviation safety system 248 headquarters 248 management board meetings 249 non-revenue flights 394–5 organizational structure 249–50 responsibilities 249 strategic goal 248 European Upper Flight Information Region (EUFIR) 268 extraordinary circumstances see liability of air carriers for compensation of damage caused by accidents, denied boarding, delay and cancellation of flights Federal Aviation Administration (FAA) 156, 219, 393 Flexible Use of Airspace (FUA) 261 flight duty time definition 256 Fatigue Risk Management System (FRMS) 256 flight time limitations in the EU 257 ICAO fatigue management system 256–7 under international law 256 under US law 257–8 see also aircrew; labour relations Flight Information Region (FIR) balancing flight safety 259–60 challenges 261 definition 259 efficiency and sovereignty 259–60 State responsibility and liability in relation to 260–61 see also aerial navigation; Air Defence Identification Zones (ADIZ) Flight Information Service (FIS) 44, 46 see also aeronautical information Flight Simulation Training Devices (FSTDs) 211 Freedoms of the Air categories of 263 commercial freedoms 264–5 definition 263 as exchanged between States in Air Services Agreements 265–6 operational freedoms 264 Functional Airspace Block (FAB) ANS designation providers in 271 current state of 271–2 definition of 259, 268 extent of 269–70 FAB projects 268–9 Baltic FAB 272 BLUE MED FAB 272 Central Europe FAB (FABEC) 271, 272 Danish-Swedish FAB (DK-SE FAB) 271

536  elgar concise encyclopedia of aviation law Danube FAB 272 North European FAB (NEFAB) 272 South-West FAB 272 United Kingdom-Ireland FAB 271 ICAO’s role in relation to 272 liability regime governing 272 requirements and procedure for the establishment of 270–71 supervisory authorities’ roles 271 Future Air Navigation Systems (FANS) Committee 43, 281 General Agreement on Tariffs and Trade (GATT) 497 General Air Traffic (GAT) 378 see also EUROCONTROL General Aviation (GA)/Business aviation definition 275 EASA regulations governing 275–7 ICAO/IAOPA definitions 275 operation of 275 under UK regulations 277 under US regulations 277 scope 272–3 Geneva Convention (1948) 73, 77 see also aircraft financing Global Distribution Systems (GDSs) 310 Global Market-Based Mechanism (GMBM) see also environmental protection 225 Global Navigation Satellite System (GNSS) 2, 280–83 Aircraft-Based Augmentation Systems (ABAS) 280, 281 challenges 282 core elements 280 early use and developments 280–81 future aspects 282–3 In-Orbit Validation (IOV) satellites 244 performance 280 state of play and challenges 281–2 Goods and Services Tax (GST) 197 Ground-Based Augmentation Systems (GBAS) 280 ground handling service provision 103–4, 288 Standard Ground Handling Agreement (SGHA) 288 Hague Convention (1970) 37, 294 air piracy 37 amended by the Beijing Protocol (2010) 447 cases: 9/11 162, 163, 210, 294, 440 ICAO measures 210 jurisdiction: punishment of offences and extradition 503 purpose 147, 210 scope 110 unlawful interference with aircraft 502

Hull insurance actual total loss of aircraft 297 constructive total loss of aircraft 297 deductible 297 insurable interest 296 perils and risks 296–7 repairable damage 297–8 subrogation 298 utmost good faith 296 see also insurance In-Flight Security Officer (IFSO) 515–16 see also pilot-in-command insurance airport operations liability insurance 145–6 Combined Single Limit 195–6 constructive total loss of aircraft 297 hull insurance 143 see also Hull insurance indemnity 296 insurable interest 296 minimum insurance coverage 196 passenger and third party liability insurance 195–6 passenger liability insurance 143–4 products liability insurance 145 third party liability insurance 144 see also reinsurance Intergovernmental Panel on Climate Change (IPCC) 101, 227 see also environmental protection interlining code sharing 307–8 competition law 309–10 IATA Multilateral and Bilateral Interline Traffic Agreements (MITA) 308–9 IATA Multilateral Prorate Agreement (MPA) 308–9 liability in the context of 309 overview of interlining agreements 307 see also commercial agreements between airlines; International Air Transport Association (IATA) International Air Services Transit Agreement (IASTA) 404–5 International Air Transport Agreement 265 International Air Transport Association (IATA) 14, 256, 425 bodies Advisory Councils 313 Board of Governors 312 Corporate Secretary 313 Director General 312–13 General Meeting 311–12 legal and other instruments Multilateral and Bilateral Interline Traffic Agreements (MITA) 308–9

index  537 Multilateral Prorate Agreement (MPA) 308–9 New Distribution Capability (NDC) program 418 Operational Safety Audit (IOSA) 311 Passenger Sales Agency Agreement (PSAA) 420–21 origins, establishment, activities, membership and mission 311 responsibilities 313–14 International Air Transportation Competition Act 219 International Civil Aviation Organization (ICAO) aircraft hijacking 292–3 bodies Air Navigation Commission 321 Assembly 320 Council 320 Legal Committee 321 Secretariat 321 international conventions, adoption of 322 judicial and quasi-judicial functions 322 legal status 319 membership 319 objectives 320 origins and establishment 319 role of 34, 114–5, 183, 186, 208, 217, 224, 228, 259, 275, 415 SARPs and PANS, adoption 321–2 International Council of Aircraft Owner and Pilot Associations (IAOPA) 275 International Federation of Airlines’ Pilots Association (IFALPA) 256 International Telecommunication Union (ITU) 208, 282 Irrevocable Deregistration and Export Request Authorization (IDERA) credit financing 300 defaulted debtor 299–300 definition 218, 299 implementation 300–301 international interest 299–300 remedies 299 see also aircraft deregistration Joint Aviation Authorities (JAA) 187 Just Culture administrative and disciplinary protocols in relation to 333 in the context of accident and incident investigation 328 in the context of the Global State Safety Programme 328 EU Council Directive 385/2014 governing 328 EUROCONTROL’s position with respect to 330, 332 gross negligence in relation to 333

ICAO legislation on 328 overview of 329–30 safety and justice 331–2 safety goals and ideals 330–31 Task Force of EUROCONTROL managing 332 technical reliability in relation to 328–9 labour relations in the context of the COVID-19 pandemic 335 EU considerations level playing field 336 social challenges and dialogue 337 global rules affecting Air Services Agreements 335–6 applicability of international labour standards 336 the Chicago Convention (1944) 335 harmonisation of global rules affecting standards 335 wildcat strike 253 leasing see aircraft financing liability of air carriers for compensation of damage caused by accidents causes of 341–2 contractual obligations of the parties involved in 341–2 under the Montreal Convention (1999) 341 in relation to liability of ANSPs 363 see also Air Navigation Service Provider (ANSP), liability of ANSP providers damage caused to baggage damage period in relation to actions 346 exclusion of liability 346 jurisdiction in relation to actions 348 legal framework governing cases 345 limitation of liability 347–8 right of action 347 strict liability 345 timely notice of complaints in relation to actions 346–7 damage caused to cargo under the international liability regime 349–50 death and personal injuries under a limited liability regime 353 under a strict limited liability regime 353–56 denied boarding, delay and cancellation of flights applicability of EU Regulation 264/2004 358–60 applicability of extraordinary circumstances in relation to 359–60 applicability of international conventions to 360 description 252 flight re-routing 254 pecuniary compensation of damages caused by 359

538  elgar concise encyclopedia of aviation law mail services Contract Airmail (CAM) routes 205 operation in Europe 25–6 in Latin America 27–8 in the United States 26–7 Market Economy Investor Principle (MEIP) airport-airline agreements 374–5 definition 373 description 373 equity injections 374 loans/relevant guarantees 373–4 methodologies 373–5 military aircraft interception of General Air Traffic and Operational Air Traffic 378 illegal flights/goods/persons 304–5 operating in restricted or prohibited areas 304 unidentified and strayed aircraft 304 see also EUROCONTROL Montreal Convention (1999) air carriage governed by the 383 bodily and mental injuries 356 combined carriage 383 documentation and duties 381 extent of compensation 381–3 international carriage as defined by the 354 liability for damage caused by an accident 341 liability for damage caused to cargo 349 limitation of liability 355–6 scope of liability 83, 192, 193, 381–3 Special Drawing Rights (SDRs) 195 strict liability regime 353–56 two-tier liability system 354–5 see also liability of air carriers for compensation of damage caused by accidents Montreal ‘Sabotage’ Convention (1971) 37 amended by the Beijing Convention (2010) 147 case: Iran – US/Vincennes (1988) 504 case: Lockerbie (1988) 448 case: MH18 (2014) 406 jurisdiction 37 punishment of offences 447, 448 purpose 37 scope 37 National Aviation Authorities (NAAs) 251 see also Civil Aviation Authority (CAA) nationality clause of air carriers see air carrier(s)/ airlines, nationality clauses New Distribution Capability (NDC) program 418 Non-Commercial Operations (NCO) of aircraft 276 non-revenue flights

definition of 393–4 EASA’s approach 394–5 FAA’s approach 395–6 Notice to Air Men or Mission (NOTAM) classification 398–9 definition 397 format 398 mandatory NOTAMs 399 see also aeronautical information; Air Navigation Services (ANS) Open Skies Agreements see Air Services/ Transport Agreements (ASAs/ATAs); aviation policies Operational Air Traffic (OAT) 378 see also EUROCONTROL overflight applicability of the International Air Services Transit Agreement (1944) 404–5 during armed conflicts 406 charges 406 definition 404–5 denial of 406 rules 405–6 unauthorized 405 see also Air Navigation Services (ANS); Chicago Convention (1944) Pacific Aviation Safety Office (PASO) 164 Paris Convention (1919) 263 passenger liability insurance see insurance Passenger Name Record (PNR) definition 415 development 415 European regulatory framework 416 guidelines 416 international regulatory framework 415–16 in relation to data protection 416–18 Passenger Sales Agency Agreement (PSAA) definition 420 IATA Resolution 824 420–21 see also International Air Transport Association (IATA) pilot-in-command applicability of the Tokyo Convention (1963) 210 authority and responsibility 422–4 definition 422 In-Flight Security Officer (IFSO) 515–16 International Council of Aircraft Owner and Pilot Associations (IAOPA) 275 International Federation of Airlines’ Pilots Association (IFALPA) 256 liability 424 Pool Agreements under Air Services Agreements (ASAs, Bermuda I) 426

index  539 under Open Skies Agreements 426–7 overview 425–6 in relation to code sharing 426 in relation to strategic alliances 427 see also Air Services/Transport Agreements (ASAs/ATAs); commercial agreements between airlines Principal Place of Business (PPoB) 390 definition of 428 under economic regulation of air transport 428–9 in relation to aircraft registration 428 in relation to airline licensing 428–9 safety oversight and regulatory control 429–30 products liability applicability and scope 431–3 claims for 431–2 defective products 432 under EU law 432 Public Service Obligations (PSOs) 220 classification of 434–5 conditions for the operation of 220 definition 434 tendering procedure and compensation 435 use in practice 220 qualifying declarations 76, 179, 180 Radio Frequency Interference (RFI) 282 Regional Air Navigation Plan (RANP) 259 Regulation 1008/2008 of the EU see air services in the EU internal market reinsurance AVN clauses 152–3 excess of loss 151 facultative reinsurance 151 proportional reinsurance 151 subrogation 153 treaty reinsurance 151 see also insurance repossession of aircraft financing 437–8 IDERA, request for 438 procedure for 437 regulations and practices 437 regulatory context of 437 see also aircraft deregistration Required Navigation Performance (RNP) 282 Rome Convention (1952) applicability of the Rome Convention (1952) to drones 441 attempts at unification 439–40 evolution and modernization 440, 441 limitation of liability under the 440 operation of aircraft under the 439 single forum concept under the 440

Rules of the Air under the Chicago Convention (1944) 445 definition 443 developments 445 origins 443–4 as regulated in ICAO Annex 3 444 Standardised European Rules of the Air (SERA) Regulation 445 uniformity 443 sabotage of aircraft applicability of the Beijing Convention (2010) 448–9 Montreal Convention (1971) 447–8 cases 448 unlawful interference with international civil aviation caused by 447 see also under Montreal ‘Sabotage’ Convention (1971) safety Acceptable Means of Compliance (AMC) 211, 393, 394 under EASA regulations 156 under ICAO rules 155 international organizations governing 154–6 national strategies 156 regional regulations governing 154–6 Safety Management System (SMS) 156 terminology and historical evolution 154 Universal Safety Oversight Audit Programme (USOAP) 259 safety handbooks definitions 450 ICAO’s handbooks 451 operators’ handbooks 451–2 responsibility of States, establishment of 451 role of non-profit organizations 452 role of regional organizations 450 Safety Investigation Authorities (SIAs) applicability of EU Regulation 996/2010 454 European Network of Civil Aviation Safety Investigation Authorities (ENCASIAs) 454–5 independence of 453–4 overview 453 Safety Investigation Authorities (SIAs) organization 455 satellite navigation applications 457 Global Navigation Satellite System (GNSS) 457 ICAO regime 458–9 In-Orbit Validation (IOV) satellites 244 legal framework 459 Positioning, Navigation and Timing (PNT) information 457 in relation to the Chicago Convention 458

540  elgar concise encyclopedia of aviation law Satellite-Based Augmentation Systems (SBAS) 280 terminology 457 see also Global Navigation Satellite System (GNSS) scheduled international air services 183, 315, 404, 461, 462 search and rescue operations under ICAO Annex 12 466–8 overview 466 in relation to aircraft accidents 469 State cooperation in the context of 466–8 State responsibility to assist in 466 Secure Air Travel Regulation (SATR) 34 security under the EU framework 158–160 under the ICAO regime 158 international framework for the regulation of 158 international organizations involved with 162–3 national law 161–2 regional measures 163–4 as regulated in Air Services (bilateral) Agreements 158 terminology and historical evolution 161 Single European Sky (SES) first legislative package 474–5 National Aviation Authorities (NAAs) 251 overview of measures 474 positive and negative aspects of 475 proposals for the establishment 476 second legislative package 475–6 see also Functional Airspace Blocks (FAB) Single European Sky ATM Research (SESAR) 126 composition and functioning 472–3 definition 471 deployment and development phases 471–2 EU Regulation No. 2021/2085 472 slots allocation at Community airports 478–80 definition 478–9 procedure for the allocation of 479 proposed recast of 480 regulatory framework 478 in relation to the Chicago Convention (1944) 478 scarcity of 478 Space Situational Awareness (SSA) 242, 246 Special Drawing Rights (SDRs) 195 Standard Ground Handling Agreement (SGHA) 288 see also ground handling State aid as applied to the air transport sector 485–6 automatic and discretionary exceptions 485

concept of 484–5 typology of State aid measures 486 subleasing agreements applicable law 490–91 characteristics 488 definition 488 exceptions for wet leases 489 international interests 490 jurisdiction 490–91 payments made under 489–90 permitted subleases 489 restrictions 488–9 subordination of sublease clauses in 489 see also aircraft financing subrogation see Hull insurance; reinsurance substantial ownership see air carrier(s)/airlines, nationality clauses sustainability in the aviation sector 492 under the EU framework 494–5 under the international regulatory framework 492–4 see also environmental protection tariffs definition 496 dispute resolution relating to 497 General Agreement on Tariffs and Trade (GATT) 497 preferred trade practices 496–7 third party liability insurance see Combined Single Limit Tokyo Convention (1963) 83, 422 jurisdiction 292–3 obligations of States 209, 281, 458 offences on board aircraft 110 powers of the pilot-in-command 423 unlawful interference with aircraft 502 Trade and Cooperation Agreement (TCA) 367 traffic rights see Freedoms of the Air United Nations Framework Convention on Climate Change (UNFCCC) 227 see also environmental protection Universal Safety Oversight Audit Programme (USOAP) 259 unlawful interference with aircraft affecting safety of civil aviation 502 air piracy 503–4 applicability of the Foreign Sovereign Immunities Act (FSIA) 504–5 under the Chicago Convention 502 under the Hague Convention 502 jurisdiction in cases concerning 503 under the Montreal Convention (1971) 502 under the Montreal Protocol (2014) 502 passenger-to-passenger assault causing 505

index  541 under the Tokyo Convention (1963) 502 Unmanned Aircraft Systems (UAS) 241 applicability of regional regulations 507–8 concept 506 EU rules 506 under international law 507 military and civil applications 506–7 under national law 508 traffic management see Unmanned Traffic Management (UTM) see also aircraft; Urban Air Mobility (UAM); U-space Unmanned Traffic Management (UTM) concept 510 digital networks 510 present stage and future 512–13 safe and secure automation 510 services provided in the context of 511–12 stakeholders 511 unruly passengers In-Flight Security Officer (IFSO) 515–16 legal framework 514 role of aircraft commander 515 scope 514–15 unruly behaviour 515 see also pilot-in-command; Tokyo Convention (1963) Urban Air Mobility (UAM) Advanced Air Mobility (AAM) 517 benefits 517 definition 517

disadvantages 517–18 legal implications 518 regulatory framework 518–19 U-space Beyond Visual Line Of Sight (BVLOS) 521 definition and evolution 521 geo-awareness services 522 network identification services 522 regulatory framework 522–3 SESAR JU 521 traffic information services in relation to 522 UAS flight authorization services 522 see also Unmanned Traffic Management (UTM) Vertiport 116 Visual Flight Rules (VFR) traffic 62 VTOL-capable aircraft 116 see also aircraft Warsaw Convention (1929) 203, 309 combined carriage 527 consumer-focused approach 527 damage to cargo liability 349 documents of carriage 525–6 international carriage 525 liability of the carrier 526–7 negligence-originated limited liability regime 353 wet leasing see aircraft financing, wet leasing of aircraft