The Principles and Practice of International Aviation Law.

Author:Dempsey, Paul Stephen
Position:Book review
 
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The Principles and Practice of International Aviation Law. By Brian F. Havel and Gabriel S. Sanchez. Cambridge, New York: Cambridge University Press, 2014. Pp. xvii, 444. Index. $125, cloth; $49.99, paper.

Is aviation law a discipline sufficiently different from other areas of the law to warrant separate treatment? (1) Legal historian Stuart Banner has declared air law dead, observing the declining number of U.S. programs in aviation law, or law professors teaching it. As he explains, "Air law ceased to be a useful category when the airplane was no longer a novelty." (2) Nonetheless, there are volumes of multilateral conventions, bilateral treaties, statutes, regulations, and jurisprudence that are unique to aviation in all its forms. On this issue, this reviewer sides with Brian Havel, associate dean of international affairs at DePaul University College of Law, and Gabriel Sanchez, an attorney and independent researcher, in whose comprehensive treatise, The Principles and Practice of International Aviation Law, we find aviation law (3) very much alive:

[T]o legal conservatives who may be suspicious of sui generis bodies of law that depart from the ideal of a set of foundational principles covering all of life's events, international commercial aviation offers a compelling response as to why it can and should support a separate body of law: it is a massive industry, heavily regulated, structurally borderless, and treated by governments (e.g., through creation of a separate United Nations (U.N.) organ to frame common global aviation rules) not as an ordinary part of international trade but as singular and exceptional. (Pp. 4-5) (4) Robert Jarvis concurs: "Aviation law, after years of languishing on the sidelines, currently is enjoying unprecedented popularity in American law schools.... [S]ome of the attention is due to the fact that, for the first time in history, instructors can choose from three competing aviation law casebooks." (5) Though not a casebook, Havel and Sanchez's new treatise is a valuable reference to be used by students, researchers, practicing lawyers, law professors, industry executives, and policy makers.

Unlike maritime law, which had a long evolutionary history of customary international law dating from the Phoenicians, the Greeks, and the Romans, and subsequently codified into conventional international law, air law was formulated into conventional international law at its infancy, without the gradual step-by-step evolutionary growth of customary international law. Isabella Henrietta Philepina Diederiks-Verschoor observed: "Due to the rapid developments in aviation and with the law-makers attempting to keep pace, custom has largely been bypassed as a source of law, the result being that air law today consists mainly of written [conventional international] law." (6)

Yet Havel and Sanchez have pointed to areas where customary international law appears present in full glory in aviation. They argue that airspace sovereignty is such a principle, with general sovereignty as a dominant principle among states dating back at least as far as the Treaty of Westphalia (1648). Further, they point to the nationality rule, whereby airlines are expected to be "owned and controlled by citizens of their home States," as yet another such customary principle (p. 18) (7)

Though the authors describe the Chicago Convention (8) as a success--particularly in the establishment of universal safety standards by the International Civil Aviation Organization (ICAO) (pp. 34-35)--they express repeated discomfort with the nationality rules of international aviation, whereby bilateral air transport agreements permit a state, if it so chooses, to suspend the services of a foreign airline not "substantially owned (and often also effectively controlled)" by the other state's nationals (p. 69), and the provisions in domestic legislation restricting domestic air transport (i.e., cabotage) (9) to airlines owned by its own nationals. (10) They contend that the nationality rule has been part of international aviation law "since the signing in 1944 of the [Chicago Convention] and its subsidiary accords, the Two Freedoms and Five Freedoms agreements" (p. 125). (11) Actually, nationality restrictions have their origin in the predecessor to the Chicago Convention, the Paris Convention of 1919. (12) Moreover airline nationality is nowhere addressed in the Chicago Convention. (13)

Havel and Sanchez argue that, although the modern "open skies" bilateral air transport agreements open entry and pricing (p. 123), they do not go far enough, (14) for they restrict the creation of global megacarriers by effectively prohibiting cross-border mergers, acquisitions, and consolidations (p. 89). Elsewhere in the book, however, they concede that three virtual megacarriers exist: the oneworld, Skyteam, and Star alliances (p. 105). In negotiating the multilateral "Open Skies Plus" agreement in 2007, the European Union had urged the United States to liberalize its foreign ownership restrictions to allow up to 49 percent foreign ownership, which is the rule on the European side of the Atlantic. Though the U.S. Department of Transportation (USDOT) was willing to proceed with a rulemaking to give the statute an elastic interpretation, the U.S. Congress passed a funding bill for the USDOT that explicitly prohibited such administrative activism. U.S. regulators instead insisted on the creation of "metal neutral joint ventures" (15) as the quid pro quo for antitrust immunity of airline alliances (pp. 159-61 & n. 142), which is the most anticompetitive alternative this side of an outright merger. USDOT and alliance members allege that, although antitrust immunity allows competitors to fix prices and ration capacity, consumers benefit from such joint ventures in the form of lower prices (pp. 151, 160-61), a questionable claim that, unfortunately, Havel and Sanchez never challenge. Meanwhile, major cross-border European airline mergers (e.g., Air France/KLM, British Airways/Iberia, Lufthansa/Austrian) have taken place (pp. 139-40). Middle Eastern air carriers are purchasing significant minority stakes in a number of European carriers (e.g., Etihad Airways purchased significant equity in Air Berlin and Alitalia). Some Southeast Asian airlines (e.g., Tiger Airways and Air Asia) also are setting up branded affiliates in nearby countries. Thus, ownership and...

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