The ICAO Assembly Resolutions on international aviation and climate change: Historic agreement, breakthrough deal and the Cancun effect

In what the International Civil Aviation Organization (ICAO) heralds as a 'historic agreement' and the European Union (EU) calls a 'breakthrough deal', the recent ICAO Assembly Resolutions A37-18 and 19 mark the end of the Assembly Resolution A36-22 'mutual agreement' stalemate on emissions trading, which represents a significant achievement with respect to aviation and climate change. Although Assembly Resolutions A37-18 and 19 are non-binding, the as yet 'aspirational' goals that they set out demonstrate the collective will of the civil aviation industry and ICAO Member States to work together towards the common objective of limiting and reducing the global impact of aviation noise and emissions. The texts of Assembly Resolutions A37-18 and 19 prompt closer analysis vis-à-vis questions of whether ICAO is (still) the appropriate forum for addressing international aviation emissions and on the legitimacy of its manifesto for continuous leadership. ICAO's general approval for use of market-based mechanisms to establish a viable global framework mechanism for aviation emissions is also noteworthy, particularly in the context of the EU's Emissions Trading Scheme (EU ETS), the position of the Convention on International Civil Aviation (the Chicago Convention), and recent legal challenge against inclusion of aviation in the scheme. This article suggests that on emergence from the United Nations Framework Convention on Climate Change (UNFCCC)'s 16th Conference of the Parties (COP-16) in Cancun in December 2010, the ICAO Member States and the aviation sector should feel proud that the spirit of cooperation and sense of success they promoted in the wake of the recent ICAO Assembly Resolutions may have contributed to the most recent progress in the global campaign against climate change: the Cancun Agreements. Thus, this article argues it is foreseeable that the latest progress under the UNFCCC process will have a reverse demonstrative effect on future ICAO dialogue and resolution

Airspace sovereignty in the Chicago Regime: a reality check

Air service agreements (ASAs) under the ‘Chicago Regime’ of exchanged traffic rights are coupled with the overarching principle of State sovereignty recognized in Article 1 of the Chicago Convention. The Chicago Convention was written in an era when States were the principal actors in air transport. Faced with economic realities, however, States have allowed airlines to privatize and in turn, cross-border alliances between airlines have prompted States to liberalize their ASAs. This article explores the ways in which the exercise of State sovereignty in airspace has evolved, and examines the Chicago Convention’s viability 75 years on

Consumer protections and limited liability: Global order for air transport?

The proliferation of air passenger rights regimes around the globe, at least half of which were introduced in the past seven years, presents a real challenge for many stakeholders in air transport. On the one hand, national rules often vary from state to state; they overlap and are often complex or conflicting, which can be seen as creating rather ambiguous liability for the air transport sector, in particular for airlines and airports. On the other hand, the inherent nature of air transport is that it is international. A passenger holding a common itinerary may have rights under one or more air passenger rights regimes during his or her journey. If the travel does not go exactly as planned, attempts by the affected passenger to acquire information about, understand and enforce his or her consumer rights may prove onerous. National authorities could also fail to provide adequate complaint handling and compliance checking procedures. What results ultimately flies in the face of the purported aims of national and regional regimes, which surely is to provide consumer protection. This comment identifies recent developments at the International Civil Aviation Organization (ICAO), a UN specialized agency, within the sphere of consumer protection for air transport. The current state of affairs is considered alongside discussion on certain aspects of the current air passenger rights in the European Union (EU) and the limited air carrier liability regime of the Convention for the Unification of Certain Rules for International Carriage by Air (‘Montreal Convention’) 1999, and the issues that arise with respect to interpretation and application of the law. The following reveals the significance of the intersection of consumer protection for passengers at national and regional levels, and limited liability for airlines at international law, that has given rise to a recent call for global order vis-à-vis core principles on air passenger rights at international law

Encouraging student participation with formative assessment and engagement in grading criteria: hybrid peer/self-assessment activity

A semi-recent trend of disappointingly low levels of student participation in taking up formative assessment opportunities offered to undergraduates, for example tutorial questions for discussion, mock exams and formative coursework, has contributed to the general perception that students are not engaging with grading criteria before assessments. In response, the author conducted a project resulting in the development of an innovative learning and teaching strategy for final-year undergraduate law students at The City Law School, City University London. This article introduces readers to the "hybrid peer/self-assessment activity" before turning to consider two sets of telling results arising from the project: (1) statistical data on student performance, and (2) student feedback collected by online survey. The author presented the project previously to The City Law School colleagues in the form of a poster. This article elaborates on the context of the project and provides a discussion of the project's aims, methodology, theoretical basis and results

Air carrier liability and air passenger rights: a game of tug of war?

In the wave of growing consumer demand for global air travel, one can observe how domestic and international regulation of certain market aspects of aviation has not always developed in the same direction or at the same speed; this purports to challenge orderly progress of international law. Different legal frameworks, legal and political ideologies and respective realities have influenced the development of, for instance, multi-level regulation of aspects of civil aviation vis-à-vis consumer protection and limited liability regimes. Such developments are reflected in the most recent progress at the international level, following the adoption by the International Civil Aviation Organization of core principles on consumer protection for air passengers. This article provides an exposé on the increasingly contentious area of divergent approaches for the development of consumer protection initiatives, focusing on what are air passenger rights and how the impetus to provide them uniformly has risen up the agenda of the international aviation community. The article considers existing international law on air carrier liability, and the EU and US air passenger rights regimes, before locating the new core principles, to determine alignment of the existing systems

Risk of abuse of dominance in airport slots for "better" European airports?

This article explores the development of the European Union (EU) framework on airport slot allocation and exchange over the past two decades. Council Regulation (EC) 95/93 laid down common rules for the allocation of slots at Union airports, followed by four amendments (2002, 2003, 2004 and 2009) that represent a gradual, comprehensive revision process towards developing a more flexible system of airport slot allocation. First, this article considers key changes in the Parliament’s Amendments under two headings: “streamlining the regulation” and “legalisation of slot exchange”. Next, with reference to relevant case law of the Court of Justice of the European Union (CJEU) and the adopted “essential facilities” doctrine, this article discusses state-owned airports and possible “airport favouritism”, particularly relating to access, charges/fees and allocation of slots. Finally, this article examines the “legalisation” of market-based measures in the slot allocation system vis-à-vis slot exchange to query whether it will generate the first cases of abuse of dominance in airport slots and ultimately risk thwarting the objective of “better” European airports

Mergers, acquisitions and ‘fair’ competition in the airline industry

This article attempts to introduce new thought on the subject of consolidation in the airline industry. The rapid consolidation witnessed in the years following deregulation and liberalisation of North American and European markets is arguably different from the more recent experience. Only a few ‘mega’ legacy carriers and their subsidiaries remain today in the wake of significant and widespread waves of consolidation of recent years. Are unfair practices and market distortions the catalysts? In this article, ‘mergers and acquisitions’ in the airline industry are briefly considered in light of wider global efforts to safeguard ‘fair’ competition in the airline industry

Airfreight: regulatory environment encourages or imposes price co-ordination?

In its Airfreight Decision (COMP/39258), the European Commission fined 11 airlines approximately EUR 799 million for their participation in a price-fixing cartel. This Decision is of particular interest because the Commission awarded all carriers a reduction of 15% ‘on account of the general regulatory environment in the sector which can be seen as encouraging price co-ordination’. Airlines allege on appeal that, in regard to certain routes involving third country destinations, the regulatory environment did not simply encourage the prohibited behaviour but that it imposed this behaviour on the airlines. If this ground of appeal succeeds it would mean that the alleged collusion in regard to those routes did not constitute an infringement of Article 101 of the TFEU at all. This article first analyses reductions in fines under this category of mitigation applied in the past and then discusses the ‘general regulatory environment’, which may have led to the reduction in this case. Since the Commission and the European courts take a robust attitude in this area, the Commission’s concession of a 15% reduction in fines is particularly noteworthy. The article concludes by considering the strength of the airlines’ grounds of appeal based on evidence of the ‘regulatory environment’

Evaluating three levels of environmental taxation in aviation: Global limitation, EU determination and UK self-interest

Although the UK Coalition government has a fondness for nudge policies and proclaimed itself ‘the greenest government ever’, many policies are criticised or failing. In March 2011, the long-intended policy change from Airline Passenger Duty (APD) to Per Plane Tax (PPT) was dropped. Cited as ineffective at reducing aviation consumption in spite of ever-increasing fees, the APD is a transparent tax passed on to customers by airlines with immediacy, whereas the PPT would incentivise airlines to maximise capacity and therefore reduce emissions but would have purportedly breached the Convention on International Civil Aviation 1944 (Chicago Convention). This article discusses central criticisms of the APD, and looks to the Luftverkehrsteuergesetz in Germany, the Taxe de l’aviation civile in France and prospects for an EU Air Tax, to conclude that whilst there is a forward movement along three levels of decision-making (international, European and domestic), the speed and quantum of progress varies

State Aid and Air Transport in the Shadow of COVID-19

As demand for air travel has fallen in response to the Coronavirus Disease-2019 (COVID-19) crisis, the global air transport sector has been severely impacted. This article investigates the extent to which and on what conditions state aid measures are applied to airlines, airports, air navigation service providers and aircraft manufacturers in response to the crisis. In that connection, reflections are offered in this article on the role of the State and the flexibility of EU state aid law in these unprecedented times