Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
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- 1) Air Freedoms 1-9
- Q Do you think that Canada can grant to American Airlines the right of cabotage
- Q How does cabotage effect EU territory
- Q What are slots issues thereof
Part V: Air Freedoms & CabotageUnder the Chicago Convention, there is no freedom to fly! States regulate it. A little leeway is found in art. 5 Chicago where non-scheduled flights state that there is a freedom allowed. But, a flight plan still needs to be given, which gives coordinates & conditions – this flight plan, however, can still be refused. Hence, really there is no freedom, as regulation exists on all levels. 6 Chicago “No scheduled, int’l air service may be operated over or into the territory of a contracting state except w/ the special permission or other authorization of that state, & in accordance w/ the terms of such permission or authorization” This is the backbone of air transport law. Thus, there is no freedom of doing business. Everything is based on bilateral or possibly multilateral agreements. 6 Chicago is the nail in the coffin of any idea of air freedom as it states no scheduled air service can be operated over or through a State without express permission from that State. An agreement / permission that the States mutuality (based on reciprocity) are granted the privilege to do so. 1) Air Freedoms 1-9First freedom is the freedom to over-fly the territory of State B without landing. This is a freedom, which must be granted bilaterally or multilaterally. Second freedom is the right to over-fly the territory of State B w/ the possibility of landing for known traffic purposes. This means for purposes of technical nature (i.e. repair, fuel etc.) not for commercial purposes such as allowing mail, people, etc to leave or enter the plane. Int’l Air Services Transit Agreement, signed by 131 states (p.85 bible). defines the first two freedoms. Third freedom is the right of the aircraft of State A to fly from state of destination (State A) to the state of destination & deposit passengers, cargo, & baggage there. For ex., XXX airline flies from Amsterdam to Brussels & carries passengers from Amsterdam to Brussels. Effectively, it’s a commercial privilege to deliver passengers, cargo & mail based on reciprocity. This nec. accompanies a 4th freedom for the flight to pick up passengers i.e. from Chicago then deliver them to T.O. Fourth freedom is the right to pick up passengers, cargo, baggage, & mail from, for example, from Brussels to Amsterdam by an airline of State A. Fifth freedom is to carry passengers from a point prior to my home state (ie. airline is in Mt., & this airline takes passengers coming from Mexico & takes them & my original passengers to go to State B where I can deposit them & where I can pick yet more passengers & carry them to further states). Ex., Air Canada flight from Toronto to London. In London, it deposits some passengers & takes on some new passengers & takes them to London & so on. Continuing from London to Bombay & then to Singapore. The 5th freedom effectively allows multi-stop int’l flights – this freedom is done through multi-lateral agreements b/t A, B & C. Note some of these 5th freedom flights can be very long w/ stops all over the place. Too long. Int’l Air Services Transit Agreement, (p.101 bible). defines freedoms 3-5. There are only a few parties thereto, but nowhere is there a better or more precise definitions on the freedoms than on IASTA. Sixth freedom. Gulf Air operates a scheduled transport b/t Sydney, Singapore & Bahrain. They also say that they will fly you to London from Sydney & we will offer you luxurious accommodation for one night in Bahrain & next day we will take you to the airport & by another aircraft of ours you will fly to London. But, British Airways & Qantas do not like this arrangement. In Australia, Gulf Air was prohibited from advertising this cheap rate to London due to the fact that Qantas could not compete. The sixth freedom is really an economic advantage that results for an airline from the combination of the third & fourth freedoms. Remember, this does not exist in law, but is commercial practice of some airlines, which is quite arguably anti-competitive in nature. Seventh freedom. There are situations where an airline operates b/t 2 foreign states without ever going to its home country. Trying to get a reasonable rate for a trip from Singapore to Hong Kong, Milde found out that the most suitable price & timing was on United Airlines. They offered the route daily. United Airlines feed their passengers from Hong Kong to Los Angeles. Another example: El Al had a daily flight from Tel Aviv through Amsterdam to New York. On some holy days, the religious passengers would not fly. Thus, El Al would not fly from Amsterdam to Tel Aviv & would have to wait until the next day & then it would open the flight to new passengers in Amsterdam. Remember, this does not exist in law, but is commercial practice of some airlines. Eighth freedom. There would be domestic carriage performed by a foreign carrier. You have to look at Art 7 Chicago b/c this freedom is known as cabotage. Many people say that cabotage is prohibited. Art. 7 Chicago “Each contracting State shall have the right to refuse permission to the aircraft of other contracting States to take on in its territory passengers, main & cargo carried for remuneration or hire & 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 any other State or an airline of any other State, & not to obtain any such exclusive privilege from any other State.” Cabotage, however, is generally prohibited as a State has a right to refuse it. The State does not have to prohibit cabotage. However, if it permits cabotage it cannot do so on an exclusive basis. Thus, it would not be right, within in Canada, for example, to give American Airlines on an exclusive basis to fly from Winnipeg & Toronto. In short, cabotage is allowed if the State allows it domestically – not int’ly. Although, there is in reality intra-European cabotage already in effect, so int’l cabotage does exist – even though there are those that claim it is prohibited. Cabotage is a privilege of each sovereign state. Note: The second sentence of art. 7 Chicago is not well understood & it has been the subject of attempts at amendment. Q? Do you think that Canada can grant to American Airlines the right of cabotage?Let’s say within our open skies, we give you American Airlines you can fly from Seattle to Calgary & continue to Toronto. Can we do it? Yes, Canada do it. It can be done but it cannot be done an exclusive basis. All you have to do is to give the right without saying that it is being done in an exclusive. Ex., Canada has a bilateral agreement w/ Singapore. Canada designates Air Canada & Singapore designates Singapore Int’l Airlines. However, more & more we are coming to the practice of multiple designations. So, for instance, w/ respect to Japan, Japan has designated two airlines, JAL & ANA, w/ respect to operation to Canada. Canada has designated Canadian Int’l Airlines & Air Canada. Q? How does cabotage effect EU territory?The EU territory is an integrated airspace, within which a community carrier (that means carrier having its headquarters in one of the states of the union) can perform cabotage. So you can think that French airlines could carry traffic from Munich to Berlin. But, for the moment, it is enroute cabotage, i.e. the flight would have to start in Toulouse & then continue to Munich & Berlin. In short, nothing prevents cabotage by European countries within the EU at this time. Ninth Freedom - “Open Skies” Very recent development, last five years or so. Initiated by a liberal U.S., which was a return to the liberalization attempts of the USA in Chicago 1944, however this time they wanted to do it on a bilateral basis. Open skies: means that a foreign airline is allowed to fly to any city in another country without any limitations as to capacity or frequency. Open Skies Agreement provides an unlimited number of designations. If you have an open skies agreement b/t the two countries, the limits are only physical & not legal. -There very first of the “Open Skies” agreement was b/t the U.S. & Holland. This is the trend for the future. However, in the current situation, where there are great differences b/t the economic situations of many countries, it would not safeguard the equality of the partnership. Q? What are slots & issues thereof?-“Slot” is a segment in time & space that permits the aircraft to land or take off. This “slot” is economically a v. critical issue. These “slots” can be sold. Slot allocation is often a political matter as there is also a trend to charge more for particular slots (i.e. slots in the morning or afternoon). - 15 Chicago discusses inter alia of airport & similar charges. Basically, there must be no discrimination – that being charges must be the same for Air India as charged to Delta at JFK be they domestic for int’l airlines. - 10 Chicago all int’l flights must go to an airport w/ customs. An airline can charge more for noisier aircraft, daytime slots etc., as long as those surcharges apply equally to everyone -Note: Airlines that have a bidding war on slots is discrimination as only those airlines that can afford it can have those slots. 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:
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