Abstract
There is no recognized definition of “air transport” is. In the absence of such, let us say that air transport is a product that offers carriage by air from one point to another or several other points and that a study of air transport would essentially involve economic theory and practice pertaining to the air transport industry i.e. the airline industry. Therefore, what we are addressing are primarily the economic aspects of air transport, whether they apply to market access or market based measures in aircraft engine emissions. As the ensuing discussion will reflect, investment in air transport plays a key role in such a discussion.
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Notes
- 1.
Air transport market access, by any particular air carrier or carriers, is the nature and extent of the basic rights (with any accompanying conditions and limitations) that are granted/authorized by the relevant governmental authorities (and identified and discussed in this chapter) as well as ancillary rights such as those covering product distribution. Air transport market penetration by any particular air carrier or carriers is the extent to which access is actually used to obtain and carry traffic. Rights can be subject to numerous constraints (outside the scope of this chapter) such as aircraft range and payload limitations, airport congestion and distribution system problems. See Manual on the Regulation of International Air Transport, ICAO: Montreal, First Edition-1996, Chapter 4.1.
- 2.
Convention on International Civil Aviation, 7 December 1944, 15 U.N.T.S. 295, ICAO Doc 7300/9. The Chicago Convention also established the International Civil Aviation Organization.
- 3.
Milde (2004) at 443.
- 4.
ICAO is the specialized agency of the United Nations handling issues of international civil aviation. ICAO was established by the Convention on International Civil Aviation, signed at Chicago on 7 December 1944 (Chicago Convention). One of the overarching objectives of ICAO, as contained in Article 43 of the Convention is to foster the planning and development of international air transport so as to meet the needs of the peoples for safe, regular, efficient and economical air transport. ICAO has 191 member States, who become members of ICAO by ratifying or otherwise issuing notice of adherence to the Chicago Convention. See ICAO Doc 7300/9 Ninth Edition 2008.
- 5.
Montevideo Convention on the Rights and Duties of States (1933), Article 1. See http://www.cfr.org/sovereignty/montevideo-convention-rights-duties-states/p15897.
- 6.
Milde, supra, note 3 of this chapter at 418.
- 7.
Groenewege (1999) at 437. It must also be noted that an aircraft has been defined in Annexes 6, 7 and 8 to the Chicago Convention as any machine which can derive support in the atmosphere from the reactions of air other than the reactions of air on the Earth’s surface.
- 8.
Ibid.
- 9.
- 10.
Article 89 stipulates that in case of war, the provisions of this Convention shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals. The same principle would apply in the case of any contracting State which declares a state of national emergency and notifies the fact to the Council. In October 1949, on the occasion of the adherence of Israel to the Chicago Convention, the Government of Egypt advised ICAO that, in view of considerations of fact and law which at that time affected Egypt’s special position with regard to Israel and in pursuance of Article 89, Israeli aircraft may not claim the privilege of flying over Egyptian territory. See letter dated 16 October 1949 reproduced in Annex A to Doc 6922-C/803 at p. 125. It was Egypt’s claim, as was later clarified by Egypt upon a query of the Secretary General of ICAO, that a state of war existed between the two countries. The Government of Iraq also advised ICAO along similar lines, that a state of emergency had been declared on 14 May 1948 and therefore Article 89 was applicable and all Israeli aircraft were denied the privilege of flying over the territory of Iraq. On 28 November 1962 the Government of India informed ICAO that as a result of external aggression into Indian Territory by the People’s Republic of China a state of grave emergency existed and the Government of India may not find it possible to comply with any or all of the provisions of the Chicago Convention. On 6 September 1965 the Government of Pakistan notified ICAO of the state of emergency under Article 89. In all instances, ICAO relayed the communications received to all its member States.
- 11.
See Proceedings of the International Civil Aviation Conference (1948) at 65.
- 12.
Id. 76.
- 13.
PICAO Documents, Montreal, 1945, Volume 1, Doc 1, at 3.
- 14.
Id. Doc 2, at 2.
- 15.
Views of Commission No 3, Doc 4023, A-1—P/3, 1/4/47. See also C-WP/369, 22/6/49 for a detailed discussion on the Commission's work on the Agreement.
- 16.
AT-WP/295, 15 Dec 52 at 5.
- 17.
Ibid.
- 18.
See AT-WP/296, 15/12/52, at 9.
- 19.
Ibid.
- 20.
AT-WP/296 supra, note 18 at 10.
- 21.
The ICAO Assembly, at its Second Session held in Geneva in June 1948, adopted Resolution A2-18 which called for the adoption by Council of a definition of the term “scheduled international air service”. See Doc 7670, supra, note 52 in the chapter “Anomalies in Airline Economics”, at 79–80.
- 22.
See, Report By the Council to Contracting States on the Definition of a Scheduled International Air Service and the Analysis of the Rights Conferred by Article 5 of the Convention. Doc 7278, C/841, 10/5/52.
- 23.
The “Bermuda II” Agreement, which was signed in 1977, contained a system of multiple designation of airlines by one State and other liberal provisions that toned down the harshness of capacity and route designation of its predecessor.
- 24.
ICAO Doc 4510, A1-EC/72, May 1947, 12–13.
- 25.
Id. 23.
- 26.
Id. 35.
- 27.
Id. 45–46.
- 28.
Resolutions and Recommendations of the Assembly 1-9th Sessions (1947–1955) Part II, Doc 7670 at 78.
- 29.
See Shawcross and Beaumont (1977). There are three other freedoms of the air that have been added since the Chicago Convention was signed: The Sixth Freedom provides that an airline has the right to carry traffic between two foreign States via its own State or registry. This freedom can also be considered a combination of third and fourth freedoms secured by the State of registry from two different States producing the same effect as the fifth freedom vis a vis both foreign States; The Seventh Freedom allows an airline operating air services entirely outside the territory of its State of registry, to fly into the territory of another State and there discharge, or take on, traffic coming from, or destined for, a third State or States; and, the Eighth Freedom is Cabotage, as referred to in Article 7 of the Chicago Convention. See Dempsey (1987) at 50. There is also a Ninth Freedom, which is referred to in note 30.
- 30.
A cabotage right or cabotage privilege is a right or privilege granted to a foreign State or foreign carrier to carry revenue traffic from one airport of a State to another in the same contiguous territory of that State. see Manual on the Regulation of International Air Transport, ICAO Doc 9626, at 4.1-10. Cabotage is covered in what is called the Eighth Freedom of The Air—which is the right or privilege, in respect of scheduled international air services, 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”).
The Ninth Freedom of The Air is the right or privilege of transporting cabotage traffic of the granting State on a service performed entirely within the territory of the granting State (also known as a Ninth Freedom Right or “stand alone” cabotage).
References
Dempsey PS (1987) Law and foreign policy in international aviation. Transnational Publishers, Dobbs Ferry, p 50
Groenewege AD (1999) Compendium of international civil aviation, 2nd edn. International Aviation Development Corporation, Canada, p 437
Milde M (2004) Chicago convention at sixty – stagnation or renaissance? Annals of Air and Space Law XXIX:443–472
Proceedings of the International Civil Aviation Conference (1948) Chicago, Illinois, November 1–December 7 1944. United States Government Printing Office, Washington, p 65
Shawcross CN, Beaumont KM (1977) Air law, vol 1, 4th edn. Butterworths, London
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Abeyratne, R. (2012). Anomalies in the Regulatory Structure. In: Aeronomics and Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-28945-3_1
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