Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
) Interline System: Resolution 780
Download 0.73 Mb.
|
- Navigate this page:
- Q Why do you have a resolution an agreement in what form has the agreement been made
- Q What is the significance of MITA
- 9) Regional Organizations
- Q Why was the regional organization set up in the first place
- Q Why was this regulated by the European Union not ECAC
- Part XII: EXAM – HOW TO IMPROVE THE SYSTEM
8) Interline System: Resolution 780It is a system of uniform law which passengers & shippers do not see much of in daily operations. But, it is a very important ingredient of the int’l air transport system b/c it regulates the rules under which the 650 participating airlines around the world cooperate in accepting each other’s passengers, tickets & cargo. Such common practice that it is almost taken for granted. Without interline, code-sharing & alliance systems would not be possible. It is the skeleton on which today’s scheduled air transport system is built. The interline system is laid down in Resolution 780 as well as in an agreement in Attachment A thereto, which contains the heart to Resolution 780. Effectively, there are two agreements: (!) for passengers & (2) for cargo. However, they are both v. similar & it would be redundant to discuss them separately. Q? Why do you have a resolution & an agreement & in what form has the agreement been made?Normally, w/in the IATA framework, agreements b/t the airlines are expressed through conference resolutions. But, the particularity of the Multilateral Interline Traffic Agreement (MITA) is that you have a number of important obs in the agreement, which have very imp financial implications. Therefore, the carriers, for reasons of ev., prefer to not only pass a resolution (which is not signed by any of the carriers) on this matter but to also close this agreement in the form of a signed agreement which means that each carrier who joins MITA must physically sign through an authorized officer a copy of the MITA as evidence that it legally subscribes to the obs under the MITA & must sign a signed copy to the secretariat of IATA to signify its acceptance of the agreement. This is a particularity. Most of the other obs of a carrier are closed in the form of a resolution. Here, rather, you have a signed copy of the agreement from each participating carrier. Q? What is the significance of MITA?A passenger who wants to fly from Montreal to Paris to Rome then back to Paris & then back to Montreal. This travel will involve two carriers. On the Montreal-Paris part of the route, the carriers might be Air Canada or Air France. On the Paris-Rome part of the route, the carriers might be Air France or Alitalia. The passenger buys his ticket in Montreal & will pay for his ticket in Montreal. How is the second leg valid & how do you get the payment from Air Canada to the second carrier & how can the passenger be sure that the second will say that it did not get its money yet or that did not consent to carrying it? Thus, the interline is all about the issuance of tickets on behalf of other carriers & secondly ensuring that the money that is due to the other carrier or carriers will be properly transferred to them. The basic mechanism for interline objectives is done in two parts: (1) As far ticketing is concerned, you have an agency relationship b/t X & Y. MITA expressly states that when one carrier in MITA issues a ticket on behalf of ano/, that it is done on the basis of an agency relationship b/t the two. Thus, the first carrier acts as agent on behalf of the second carrier & the second carrier explicitly recognizes that agency relationship. The first carrier acts in the name & on behalf of the second carrier. As stated in art. 2 of the Interline Agreement “Each party here to this agreement is hereby authorized to issue & complete tickets, MCO’s exchangeable for tickets for transportation of passengers in the form approved by & in accordance w/ the tariffs & terms, provisions & conditions of the tickets . . .” Hence, there is a mutual authorization among the parties to issue tickets on behalf of each o/ & establishes the agency relationship b/t the parties. (2) The second part of the mechanism is the mutual acceptance of tickets that parties have issued on behalf of each o/. art. 2.2 MITA provides for such an ob of ticket acceptance as it says each party agrees to accept each such ticket or o/ transportation doc & to honour each MCO issued by any other party. There is also a mechanism that will ensure the transfer of the funds from one carrier to the second carrier. In the relationship b/t X & Y, the transfer of funds should not be seen in isolation. If you have carrier X owing some funds to carrier Y, there will be other times that carrier Y will carrier X some funds b/c carrier Y will also sell interline tickets. Thus, the carriers will do an offset at the end of a month & only the remaining amount is transferred to the carrier, which has a credit. This is done through the IATA clearing house. IATA clearinghouse collects the records of all the obs of carriers’ agst each o/. 8 MITA deals w/ billing & settlement in the interline system. 8.1 MITA “Each issuing airline agrees to pay to each carrying airline the transportation charges applicable to the transportation performed by such carrying airline & any additional transportation or non-transportation charges.” It establishes the general principle of payment of the relating charges. 8.2 MITA states that billing of accounts payable through this agreement shall be in accordance w/ the rules in the IATA Revenue Accounting Manual. The manual states that “Unless otherwise agreed, settlement of amounts payable pursuant to this agreement b/t the parties shall be in accordance w/ the manual of the regulations & procedures of the IATA clearing house.” 9) Regional OrganizationsThe states in Europe did not want to have a Regional Air Transport Commission of ICAO b/c they wanted certain flexibility. The EU did not want a completely independent organization but they wanted something in b/t that consisted of the following: The new body would be organizationally independent but would be run physically from the ICAO regional office. The premises where the European organization would be seated would be made available by ICAO as per financial arrangement b/t ICAO & ECAC, under which the indirect cost of running the organization would be borne by ICAO. Direct cost of running ECAC would be borne by ECAC. ICAO would have a say on the agenda & the work program of the new organization. This was the actual work of the organization would be tied in w/ ICAO. The structure of the organization was set out in a resolution of the ECAC member states. The historical development of this body is set out in the art. of Weber at pg. 75(?) & the negotiations of the format in which this regional organization set up. Q? Why was the regional organization set up in the first place?In the early 50s, European governments & the European carriers wanted to have much greater degree of facilitation. Facilitation is used to describe the process of facilitation of int’l air transport w/ regard to existing governmental bureaucracy. Facilitation deal w/ the effort to reduce the amount of bureaucracy or red tape back to a minimum. To allow efficient operation unhampered by unnecessary bureaucracy. In the post-war period, the level of bureaucracy was so high, that European states decided to do something about it. Also, European states wanted to see if they could agree to multilateral agreements on traffic rights. On the first subject, ECAC has been quite successful. The first thing it had to do away was w/ landing card. Passenger & cargo manifest were done away w/. But, in the field of liberalization & multilateral agreements on traffic rights on scheduled services, ECAC failed. When this failure became clear, people attempted open skies in non-scheduled services. Thus, ECAC did nevertheless succeeded in concluding a Multilateral Agreement on the Rights of Non-Scheduled Services (Paris Agreement, 1956). This agreement did not get a lot of fanfare. But, it had a lasting impact on the development of commercial charter services in Europe. This is one of the achievements of ECAC, to have contributed to a very strong, commercially viable development of non-scheduled services in Europe & particularly IT services. IT services are charter services which stand for Inclusive Tours where you typically have a service going from a urban center to a vacation place & return. The development of this kind of travel service was such that in the 1980s, total inter-European traffic was more than 50% non-scheduled services. The liberalized environment within Europe made that possible. This relatively obscure agreement has had a profound impact on the development of non-scheduled services in Europe & it is reproduced on pg. 109 of the casebook. Multilateral Agreement on Commercial Flights of Non-Scheduled Services in Europe, Paris 1956. This is a multilateral agreement. art. 2, paragraph 2b: IT services is provided for. IT services flourished in an unforeseen way. Great Britain have the largest piece of these services. The agreement has been copied in Southeast Asia & the Middle Eastern states are thinking about such an agreement. The two legs on which ECAC has been standing on: liberalization of commercial rights of air services & facilitation. In the field of liberalization ECAC had to wait until the EU had adopted its packages of liberalization on the scheduled services. The field of liberalization of scheduled services was a matter for the European Union. The European scene characterized by the work of ECAC until 1986 b/c ECAC was the only body in the field of civil aviation coordination in Europe until 1986 when the E.U. was for the first time given some power in the field of civil aviation in a court judgment in a case (Nouvelle Frontiere, 1986) decided by the European Court of Justice where for the first time the court held that the European bodies had powers dealing w/ civil aviation & particularly w/ competition matters under the Rome Treaty. This decision reproduced on page 290 of the casebook. This decision propelled the question of whether or not the European bodies had some powers in the field of aviation. This matter had always been disputed. There was a case in 1974 (French Seam case) which somewhat timidly decided this question. It gave some powers to the European bodies, but it was not quite clear what the European bodies could do w/ these powers. Therefore, the European bodies had remained inactive from 1974 to 1986. From 1986 & the new decision of the European Court of Justice, the European bodies started to assume their authority in civil aviation & then passed the first regulator package in 1987. Thus, from this time, the European bodies were not only involved w/ aviation, but also regulated. There was a second package of regulations in 1990 & a third package in 1993. These regulations regulated the types of fares & the procedure that should be applied in fares & fares packages. Joint operation among airlines was regulated. Q? Why was this regulated by the European Union & not ECAC?The tools for regulation are quite different from one organization to another. Structurally speaking, ECAC is a very traditional inter-governmental organization which can make some recommendations, but which cannot make legally binding decisions that are directly applicable & that are directly binding on the operators. This is legally & structurally not possible. Everything that ECAC does is usually done by recommendations. ECAC has done some useful work in noise abatement, reducing the noise of air traffic. The tools which ECAC used were recommendations which were directed to its own member states. But each state could decide whether to implement the recommendations. The EU functions on a different basis that has much vaster powers than a body ECAC. Its structure is that it can make rules which are directly binding on companies & thus avoids waiting for the individual governments to change their laws, to rules & to implement. The European bodies have themselves legislative powers, regulations are like legislative acts which will be enforced by the courts & the administrative acts have the force of law w/ respect to those companies. ECAC has more members than the EU. ECAC has 37 member states & the European Union only has 15 member states. Since ECAC has been the first body historically speaking to be a mixed concept b/t an independent body & a body tied to ICAO, what about the other geographical areas of the world? We have a number of organizations. For example, the African Civil Aviation Commission which is seated in Dakar, Senegal & it has the same status of ECAC. It is not a regional air transport commission, it is not independent. It is a mixed concept. It is set up on the regional premises of ICAO in Africa. ICAO has a say in the work program of the AFCAC. The main thrust of AFCAC’s work is to train personnel & liberalization & facilitation within Africa. At present, it is trying to put together a Multilateral Agreement on Traffic Rights within Africa. It has tried to do this before. It has 54 member states & it is the biggest regional organization The AFCAC Constitution is an int’l agreement & it is in the process to be amended. In Latin America, we have the Latin American Civil Aviation Commission. Also, a copy of ECAC. It has been tailored to the needs of Latin America. It has been a bit more political than the other regional organization. Traditionally, U.S. carriers have had a lot of 5th freedom rights in Latin America. One of the reasons this organization was set up was to ensure that 5th freedom rights within Latin America would be restricted. They are involved in training & set up a number of professional training schools. In the Middle East, there is the Arab Civil Aviation Commission. It has no financial arrangement w/ ICAO. ICAO does not have a say on this body’s work program. They were originally seated in Cairo. Then, they moved to Morocco & now is back in Egypt. Their agreement is reproduced on pg. 118. Part of their work is to liberalize the rights in air services. These regional groupings will coordinate their policy positions among themselves before each important meeting, such as the ICAO assembly. Three other bodies that exist at a regional level: 1) Euro-control—deals w/ air traffic control, & are spearheading European air traffic management. Collects the route charges for the use of the navigational services.
Air transport should be fully included into the WTO concept of trade in services to balance the needs and interest of sates in the overall economic spectrum rather than in one isolated aviation industry. There is also significant reason to abandon the difference b/t state and civil aircraft as they share the airspace and air navigation facilities and serviced – they should observe int’l SARPS. Aviation however should remain one of the most regulated industries to assure overriding principles of safety and security of which can only be meaningfully performed by States or joint orgs and the industry itself cannot be self-regulating. Nationality and Registration of Aircraft: Chicago attaches several function and duties w.r.t. an aircraft state of registry . In practice, however, the State of registry in not necessarily the State of operator and may find it impracticable to discharge the appropriate function and duties (83bis allows delegation however there is no recorded ap of this provision). Concept of nationality of aircraft has to be creatively adjusted to make a wider use of non-national registration of aircraft in the form of joint or int’l registration reflecting multinational ownership and operation of aircraft by possible future int’l operating agencies. An update concept of registration of aircraft on a non-national or int’l basis could facilitate int’l financing of the fleets of aircraft by a more effective system of securitization. It could also contribute to safety of flight and more unity in the application of safety stnds if the certificates of airworthiness, licenses etc., are issued not by the Sate of registry but by a wider non-national authority or int’l agency. Safety: Standards have to be properly enforced by national administrations and compliance with them should be strictly audited by ICAO and or by int’l regional orgs. Aircraft Accident Investigation: Prevention of aircraft accidents is assisted by through investigation of all accidents only an appropriate determination of the cause(s) can lead to effective correction of any faults in tech, procedure or human conduct. GNSS: GNSS in time will require SARPS, especially if it to become the sole means of navigation globally. However, it is imp to refrain from undue hast in law-making since the systems are fast evolving there is little practical exp with the social relation involved. GNSS should be introduced into practical ap without delay and should not be held hostage to eventual agreement of the applicable legal regs. Law will follow when there is sufficient practical exp with the operation of the GNSS permitting a realistic analysis of the possible conflicts in the social relations created b/t the GNSSS, which call for such regs and uniformity. (see GNSS precepts) Aviation Security: Security from man-made danger are an integral part of safety and better conventions are hardly needed. Criminal law represents only a general prevention. Effective specific prevention can be provided only by security checks at the airports separating the potential offender from his target and preventing the introduction of weapons and dangerous substance on board aircraft. Unruly Passengers: Tokyo would encompass such acts, it does not create a wide enough jurisdiction or duty to prosecute. States may assist in a solution by effective national leg criminalizing such act and establish appropriate jurisdiction regardless that the act may have occurred on a foreign plane and beyond its territory (i.e. see model legislation – after which such national initiative will enhance by a Protocol the jurisdictional scope of Tokyo – this is an urgent area of priority). Health Issues: Old people and length of travel may lead to the need for the presence of medical personnel and equipment on board for extended flight to respond to any medical emergencies. Banning of Drugs: Keep aviation “drug free” enforce random testing of personnel for the presence of substance. 400 lives of passenger on an aircraft have an overriding right to protection agst those individuals human and or privacy rights in this regard. Limiting the sale of alcohol may also be a good idea. Quasi-Judicial Function of ICAO: Creation of an int’l court for major criminal acts agst aviation security could prove useful and would reflect the global concern of the int’l community for the preservation of aviation security. CTRL – SHIFT – F9 Directory: pubdocs -> files files -> International maritime conventions files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law files -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Topic One Seaworthiness and Common Venture, chapter 15 Download 0.73 Mb. Share with your friends:
|