2nd Edition
Fundamentals of International Aviation Law and Policy 2e
Fundamentals of International Aviation Law and Policy offers students a systematic, tailored and dynamic approach to understanding the legal scenario concerning international civil aviation. The book covers the major areas of international aviation law and provides an introduction to the multifaceted international regulation of aviation activities in the sphere of public and private law. The book is designed to provide the reader with the fundamental notions concerning international aviation law. It adopts an interactive approach, which aims at engaging the reader by way of using learning tools. The main areas of public and private aviation law are dealt with from a regulatory and practical perspective, and include detailed analyses of existing and applicable legislations, as well as landmark court cases and decisions.
Each chapter is tailored to confer to readers a thorough knowledge of the international and, if any, the European applicable legislation. Delivery of these aims is attained through a clear and balanced use of didactic instruments and immediate information. New chapters cover aircraft financing and advanced air mobility, giving this second edition of Fundamentals of International Aviation Law and Policy even greater coverage and depth.
The book is intended for a varied audience of students and professionals involved in the aviation world, without requiring the possession of specific legal knowledge or background. It also constitutes a useful reference material for those who are familiar with legal terminology and aviation specifics.
Foreword to the First Edition. 16
Foreword to the Second Edition. 17
Acronyms and Abbreviations. 19
European Union Legislation. 25
Court of Justice of the European Union Cases. 28
International Court of Justice Cases. 29
Chapter 1 – Foundations of Aviation Law and Policy. 2
1.1.1 What is Aviation Law?. 2
1.2 Key Elements in Aviation Law.. 5
1.2.1 Public International Law.. 5
1.2.2 Private International Law.. 7
1.2.3 Multifaceted Nature of Aviation Law.. 8
1.3 Sources of Aviation Law.. 9
1.3.1.2 Customary International Law.. 12
1.3.1.3 General Principles of Law.. 13
1.3.1.4 Judicial Decisions. 13
1.3.1.5 Teachings of the Most Highly Qualified Publicists. 13
1.3.2.1 Primary Legislation. 14
1.3.2.2 Secondary Legislation. 15
1.3.2.3 Court of Justice of the European Union. 17
1.3.4 Binding Law and Non-Binding Instruments. 18
Points for Further Research. 21
Chapter 2 – Early Developments. 22
2.1.1. Dubious Latin Roots. 22
2.1.2. Early Examples of National Aviation Laws. 23
2.1.3. Early Examples of International Aviation Law.. 24
2.2 Initial Steps Towards Multilateral Civil Aviation Law.. 26
2.3.2. Restrictions on German Military Aviation. 29
2.3.2. Freedom of AAP Aircraft in Civil Aviation. 29
2.5 The Decades Between the Wars. 32
Points for Further Research. 36
Chapter 3 – Convention on International Civil Aviation. 37
3.1.2 Chicago Conference 1944. 38
3.1.3 The Creation of New International Law.. 38
3.2 Applicability of the Chicago Convention. 40
3.2.1.1 International Flight 40
3.2.1.2 Entrance and Exit of Foreign Airspace. 40
3.2.2.1 Definition of ‘Aircraft’ 43
3.2.2.2 Aircraft Classifications. 45
3.2.3.1 Definition of ‘State’ Aircraft 46
3.2.3.2 Rights and Responsibilities of State Aircraft 49
3.2.3.3 Definition of ‘Civil’ Aircraft 49
3.3 War and Emergency Conditions. 50
3.4 Purpose of the Chicago Convention. 51
3.4.2 Misuse of Civil Aviation. 52
3.4.3 Use of Weapons Against Civil Aircraft 53
3.5 Breakdown of the Chicago Convention. 55
3.5.1 Part I Air Navigation. 55
3.5.2 Part II International Civil Aviation Organization. 56
3.5.3 Part III International Air Transport 56
3.5.4 Part IV Final Provisions. 57
3.6 Transfer of Responsibility. 57
3.8.1 Role of the International Civil Aviation Organization Council 59
3.8.2 Appeals after the International Civil Aviation Organization Council 62
Points for Further Research. 64
Chapter 4 – International Civil Aviation Organization. 65
4.2 Bodies of the International Civil Aviation Organization. 67
4.2.4 Air Navigation Commission. 74
4.3 Annexes to the Chicago Convention. 75
4.3.1 Standards and Recommended Practices. 75
4.3.2 Overview of the Nineteen Annexes to the Chicago Convention. 78
4.3.3 Adoption of Standards and Recommended Practices. 80
4.3.4 Departures from International Standards and Procedures. 82
4.4.1. Regional Cooperation under the Chicago Convention. 84
4.4.1. International Organisations and Bodies. 85
4.4.2 International Associations. 86
Points for Further Research. 87
Chapter 5 – International Air Transport 88
5.1.1 Sovereignty: Article 1 Chicago Convention and a Closed Airspace. 88
5.1.2 Non-Scheduled International Air Services. 88
5.1.2.1 Article 5 Chicago Convention. 88
5.1.2.2 Practical Application of International Non-Scheduled Air Services. 89
5.1.3 Regulation of International Scheduled Air Services. 90
5.1.3.1 Article 6 Chicago Convention. 90
5.1.3.2 Nature of International Scheduled Air Services. 90
5.1.5 Operation of Pilotless Aircraft 92
5.1.6 Prohibited Areas: Article 9 Chicago Convention. 93
5.1.6.1 Exercise of Sovereign Power 93
5.2.8 Eight Freedom: ‘Consecutive’ or ‘Quasi’ Cabotage. 98
5.2.9 Ninth Freedom: ‘Stand-Alone’ or ‘Pure’ Cabotage. 98
5.3 Rise of Bilateralism.. 100
5.3.1 Pre-Liberalisation: Bermuda I and Bermuda II Air Services Agreements. 100
5.3.1.1 Bermuda I Agreement 100
5.3.1.2 Bermuda II Agreement 101
5.3.2 Early Multilateral Developments. 102
5.3.3 ‘Open Skies’ Agreements. 103
5.3.4 Recent Multilateral ‘Open Skies’ Attempts. 105
5.3.5 The European Union’s External Aviation Policy. 106
5.3.6 Bloc-to-Bloc Agreements: The EU/ASEAN Agreement as a Case Study. 109
5.4 Key Themes in Bilateral Air Services Agreements. 110
5.4.1 Airline Nationality Requirements. 110
5.4.1.1 Substantial Ownership. 112
5.4.3 Designation of Airlines. 115
5.5 Airline Commercial Cooperation and Alliances. 116
5.5.1 Rationale for Airline Cooperation. 116
Points for Further Research. 125
Chapter 6 – Criminal Law.. 127
6.2 Background and Prohibited Acts. 128
6.2.2 Hague Convention 1970. 130
6.2.3 Montreal Convention 1971. 131
6.2.4 Montreal Protocol 1988. 135
6.2.7 Montreal Protocol 2014. 140
6.3.2 In flight and In Service. 143
6.3.3 Surface of the High Sea and Other Areas Outside Territory of a State. 143
6.3.5 International Element 144
6.5 Obligations of Contracting States. 148
6.6 Powers of the Aircraft Commander 150
6.7 In-Flight Security Officer 152
6.9 Issues of Entry into Force. 154
Points for Further Research. 156
Chapter 7 – Contractual Liability. 157
7.2 Historical Background. 157
7.2.2 Amendments and Additions Following the Warsaw Convention. 159
7.2.2.1 The Hague Protocol 159
7.2.2.2 Guadalajara Convention. 160
7.2.2.3 Guatemala City Protocol 160
7.2.2.4 Montreal Additional Protocols 1975. 161
7.2.2.5 United States and International Air Transport Association Montreal Agreement 1966 163
7.2.2.6 International Air Transport Association Intercarrier Agreement 1995. 163
7.2.3 Montreal Convention 1999. 163
7.4.1 Documentation Relating to Passengers and Baggage. 167
7.4.2 Documentation Relating to Carriage of Cargo. 170
7.5 Liability of the Air Carrier in Case of Death or Injury of Passengers. 170
7.5.1 Article 17 Montreal Convention 1999. 171
7.5.3 Causal Link between the Accident and the Damage. 173
7.5.4 Death or Bodily Injury. 173
7.5.5 Embarkation and Disembarkation. 175
7.6 Two-Tier Liability Regime of the Montreal Convention 1999. 177
7.6.1 Limited, but Strict, Liability. 177
7.6.2 Exposure to Unlimited Liability. 178
7.7 Carrier Liability in Case of Delay. 180
7.8 Liability Regime Concerning the Carriage of Cargo. 181
7.9 Exclusivity Principle. 183
7.10.1 Court of the Domicile of the Carrier 186
7.10.2 Court of the Principal Place of Business of the Carrier 186
7.10.3 Court where the Carrier has a Place of Business through which the Contract has been Made 186
7.10.4 Court at the Place of Destination. 187
7.10.5 Fifth Jurisdiction. 187
7.10.6 Concluding Remarks on Jurisdiction. 188
7.11 Regional or Local Regimes Concerning Air Passenger Rights: Example of Regulation 261/2004 189
7.11.1 Geographical Scope of Application. 189
7.11.2 Material Scope of Application. 190
7.11.3 Compensation Scheme. 191
7.11.4 Duty of Assistance and Right to Care. 192
7.11.5 Compatibility with the Montreal Convention 1999. 192
7.11.6 Extraordinary Defence for the Air Carrier 194
Points for Further Research. 196
Chapter 8 – Third-Party Liability and Damage on the Surface. 198
8.2 Early Development: Rome Convention 1933. 200
8.3.2 Operator of the Aircraft 203
8.4 Montreal Protocol 1978. 206
8.5 Post 9/11 Conventions. 206
8.5.1 General Risks Convention. 207
8.5.2 Unlawful Interference Convention. 208
Points for Further Research. 210
9.2 Definition of ‘Insurance’ 213
9.5.1 Third-Party Liability Treaties. 219
9.5.2 Contractual Liability. 220
9.5.3 European Union Regulation 785/2004. 220
9.5.4 Other Sources of Law.. 222
Points for Further Research. 225
Chapter 10 – Competition Law.. 226
10.2 Application of Competition Law to Air Transport 229
10.3 European Union Competition Law Framework. 230
10.3.1 Prohibited Agreements. 230
10.3.2 Abuse of Dominant Position. 232
10.3.5 State Aid and Competition Law During the COVID-19 Pandemic. 240
10.3.6 Airline Merger Control in the European Union. 244
10.4 United States Antitrust Regime. 245
10.4.3 Institution of the Antitrust Immunity. 248
10.4.4 Airline Merger Control in the USA.. 249
Points for Further Research. 254
Chapter 11 – Environmental Protection. 255
11.2 Need for a Sustainable Aviation. 259
11.3 Regulation of Environment in Air Transport 260
11.3.1 United Nations Framework Convention on Climate Change and the Kyoto Protocol 260
11.3.2 International Civil Aviation Organization and Annex 16. 261
11.3.3 Carbon Offsetting Reduction Scheme for International Aviation. 263
11.4 Long-Term Aspirational Goal for International Aviation. 265
11.5 Sustainable Aviation Fuels. 266
11.6 Air Service Agreements and Recent Developments. 267
11.7.1 European Union Emissions Trading Scheme. 269
11.7.2 The European Green Deal 272
11.7.3 Fit for 55 and ReFuel Aviation. 273
11.7.4 National Measures for a Sustainable Aviation Industry. 275
Points for Further Research. 278
Chapter 12 – Aircraft Financing. 280
12.2 Early Attempts at Protecting Interests in Aircraft 281
12.3. The Cape Town Convention and the Aircraft Equipment Protocol 282
12.3.1 Main Features of the Treaty and the Protocol 282
12.3.3. Remedies Offered to Creditors in Cases of Insolvency. 289
12.3.5 Transfer of Registration under Article 83 bis of the Chicago Convention. 294
12.4 Types of Aircraft Lease Agreements. 296
12.4.3 Finance or Capital Lease. 298
12.4.4 Japanese Operating Lease. 299
Points for Further Research. 301
Points for Further Research. 302
Chapter 13 – Unmanned Aircraft System.. 303
13.2 Clarifying the Terms. 304
13.2.2 Unmanned Aircraft System.. 306
13.2.3 Remotely Piloted Aircraft and Its System.. 307
13.3.1 Article 8 Chicago Convention. 308
13.3.2 Pilotless Aircraft v. Without a Pilot 308
13.3.3 Special Authorisation. 309
13.4 Annexes to the Chicago Convention. 310
13.4.1 Amendments to Annexes. 310
13.4.2 Remotely Piloted Aircraft Systems Panel 311
13.4.3 UAS Advisory Group. 312
13.4.4 Task Force on Unmanned Aircraft Systems for Humanitarian Aid and Development 313
13.4.5 Model UAS Regulations. 314
13.5 Advanced Air Mobility. 314
13.5.1 Understanding the Terminology. 316
13.5.2 Advanced Air Mobility Study Group. 318
13.6 Regional and National Rules. 319
Points for Further Research. 322
Chapter 14 – Suborbital Transportation and Space Law.. 323
14.2 Historical Overview.. 324
14.2.2 The Present and Beyond. 324
14.3 Overview of the Industry. 326
14.3.2 Suborbital Vehicles Concepts. 327
14.3.3 Types of Activities. 327
14.3.4 Types of Participants. 328
14.4 Legal Regime in Outer Space. 329
14.5.1 Spatialist Approach. 333
14.5.2 Functionalist Approach. 336
Suborbital and Commercial Space Activities: 340
Points for Further Research. 340
Annex I List of Main International Aviation Law Treaties. 1
I.III Third-Party Liability. 5
Biography
Benjamyn I. Scott has an LLB (Hons) from the University of Kent, an LLM in International Commercial Law from the University of Kent, an LLM (Adv.) in Air and Space Law from Leiden University, and a PhD in aviation cybersecurity from the University of Cologne. Benjamyn has a strong background in developing aviation technologies, having worked for several years in this area, and having written numerous journal articles and book chapters in this discipline.
Andrea Trimarchi graduated in law LLM from the University of Roma Tre. He further obtained in 2016 an LLM (Adv.) in Air and Space Law from the International Institute for Air and Space Law at Leiden University. Andrea has a strong background in competition and private international law, having several years of experience in airlines and private aviation law firms.
