Abstract
Megatrends and air transport means different things to different people. While some think of trends that are emerging, others think long term and this treatise would be incomplete if it did not start with the long term perspective first and then get onto what is emerging right now. On 24 November 2016 there was a luncheon presentation entitled The Next 100 Years of Aviation convened by The International Aviation Club of Montreal and McGill University. It was an event well attended by the aviation intelligentsia of Montreal. The presentation was well thought through and eloquently delivered. One of the prognostications presented for the next century was that Mars would be colonized and we would be growing vegetables and other produce for our consumption on the planet. This is not difficult to imagine since at present the Mars One project has developed plans to send humans to Mars, although much has to be accomplished in the nature of making the planet habitable for human existence. It is said though, that “establishing a permanent settlement is very complex, but it is far less complex and requires much less infrastructure that is sent to Mars than on return missions”.
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Notes
- 1.
Milde (2012), p. 1.
- 2.
Ibid.
- 3.
- 4.
Dempsey (2015), p. 215.
- 5.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944. See ICAO Doc 7300/8:2006.
- 6.
- 7.
Ghemawat (2011), p. 29.
- 8.
Global Economic Prospects: Having Fiscal Space and Using it, January 2015, at 21.
- 9.
AIRLINE COMPETITION—Background Paper by the Secretariat, Directorate for Financial and Enterprise Affairs Competition Committee, 18–19 June 2014, DAF/COMP(2014)14.
- 10.
Organisation for Economic Co-operation and Development (OECD), established in 1961, promotes policies that are calculated to improve the economic and social well-being of people around the world. The OECD provides a forum in which governments can work together to share experiences and seek solutions to common problems. The Organization works with governments to understand what drives economic, social and environmental change.
- 11.
AIRLINE COMPETITION, Supra, note 9, Background Note at 3. The Report goes on to say that worldwide, aviation and related tourism generate over 56 million jobs, of which 8.36 million are directly linked to the aviation sector. Around 35% of international tourists travel by air.
- 12.
The International Civil Aviation Organization is the United Nations specialized agency dealing with international civil aviation. ICAO was established by the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944. See ICAO Doc 7300/8: 2006. The main objectives of ICAO are to develop the principles and techniques of international air navigation and to foster the planning and development of air transport. ICAO has 191 Contracting States.
- 13.
ICAO Press Release, 16 December 2013. The OECD Report also notes that the number of travellers has increased because, among many other things, prices have decreased significantly in response to increasing competition in the air transport market. For example, in 1974 the cheapest round-trip New York–Los Angeles flight (in inflation-adjusted dollars) that regulators would allow: $1442. Today one can fly that same route for $268.
- 14.
Global Air Transport Outlook to 2030, Circ.333, AT/190: 2012, at 59.
- 15.
Airbus Industrie, Global Market Forecast: Flying on Demand 2014–2033, at 16.
- 16.
World Economic Forum: outlook on the Global Agenda 2015, http://www.weforum.org/reports/outlook-global-agenda-2015.
- 17.
The Shape of Air Travel Markets Over the Next 20 Years, https://www.iata.org/publications/economics/Pages/index.aspx.
- 18.
Nationalism is back: Bad news for international co-operation, The Economist: The World in 2015, at 92. See the web version of Nov 20th, 2014 at http://www.economist.com/news/21631966-bad-news-international-co-operation-nationalism-back.
- 19.
Steinberger (2000), p. 501.
- 20.
Etzioni (2005–2006), p. 35.
- 21.
Secretary-General Presents his Annual Report to General Assembly, 20 September 1999, Press Release, SG/SM/7136, GA/9596. See http://www.un.org/press/en/1999/19990920.sgsm7136.html.
- 22.
Starke (1977), p. 106.
- 23.
In the 1970s ICAO made a half hearted attempt at developing a Repertory Guide to the Chicago Convention and has done nothing since toward explaining the legal and regulatory interpretation of the various provisions of the Convention. A commentary of the Convention was developed in 2013. See Abeyratne (2013a), Chapter 1.
- 24.
- 25.
Article 1.1.
- 26.
Cunningham (1999), p. 6.
- 27.
The International Air Transport Association is a trade association of the world’s airlines. These 250 airlines, primarily major carriers, carry approximately 84% of total available air traffic.
- 28.
- 29.
- 30.
For an extensive discussion on this subject, see generally Abeyratne (2014d).
- 31.
For a discussion on the rights of the passenger see Abeyratne (2015a), pp. 159–275.
- 32.
- 33.
- 34.
Article 55 c) contains one of the permissive functions of the Council of ICAO which provides that the Council may conduct research into all aspects of air transport and air navigation which are of international importance and communicate such to member States of ICAO while facilitating the exchange of information between the States.
- 35.
- 36.
Chung Chi Cheung v. R, [1939] AC 160; 9 AD, p. 264. See also Commercial and Estates Co. of Egypt v. Board of Trade [1925] 1 KB 271, 295; 2 AD, at 423.
- 37.
On 8 August 2016 the media reported in breaking news that at least 451 of Delta Airlines flights were stranded around the world, cancelled for nearly 6 h and nearly half a million passengers were facing delays on Delta Airlines flights due to what a spokesman for the airline called “a major systems collapse worldwide affecting passengers trying to check-in/board. See Delta computer system completely down. Flight operation at stillstand, eTN Global Travel Industry News, http://www.eturbonews.com/73542/delta-computer-system-completely-down-flight-operation-stillstan.
- 38.
- 39.
See Digital Transformation of the Airline Business, August 2016, Airline Leader, Issue 35. See http://www.airlineleader.com/categories/opinion/digital-transformation-of-the-airline-business-295085.
- 40.
Supra, note 5.
- 41.
Annex 9 to the Convention on International Civil Aviation, Thirteenth Edition: July 2011.
- 42.
Recommended Practice 3.9.
- 43.
Infra, note 18.
- 44.
Recommended Practice 3.34.
- 45.
API involves the capture of a passenger’s or crew member’s biographic data and flight details by the aircraft operator prior to departure. This information is electronically transmitted to the border control agencies in the destination or departure country. Thus, passenger and/or crew details are received in advance of the departure or arrival of the flight. See Abeyratne (2001), pp. 91–121.
- 46.
The UN/EDIFACT PAXLST message is a standard electronic message developed specifically, as a subset of UN/EDIFACT, to handle passenger manifest (electronic) transmissions. UN/EDIFACT stands for “United Nations rules for Electronic Data Interchange for Administration, Commerce and Transport.” The rules comprise a set of internationally agreed standards, directories and guidelines for the electronic interchange of structured data, and in particular that related to trade in goods and services between independent, computerized information systems. The WCO, IATA and ICAO have jointly agreed on the maximum set of API data that should be incorporated in the PAXLST message to be used for the transmission of such data by aircraft operators to the border control agencies in the destination or departure country. It is to be expected that the UN/EDIFACT standard may be supplemented by modern message techniques, such as international xml standards or web-based applications.
- 47.
Standard 3.46.
- 48.
Recommended Practice 3.46.10.
- 49.
Recommended Practice 3.46.11.
- 50.
A passenger name record in the air transport industry is the generic name given to records created by aircraft operators or their authorized agents for each journey booked by or on behalf of any passenger. The data are used by operators for their own commercial and operational purposes in providing air transport services. Industry standards related to PNR creation are detailed in IATA’s Passenger Services Conference Resolution Manual and in the ATA/IATA Reservations Interline Message Procedures—Passenger (AIRIMP). See ICAO Guidelines on Passenger Name Record (PNR) Data, Doc 9944, First Edition:2010, at 2.1.1.
- 51.
ICAO DOC 9944—Guidelines on Passenger Name Record (PNR) Data. This circular was developed subsequent to a recommendation that ICAO develop guidance material for States that may require access to Passenger Name Record (PNR) data to supplement identification data received through an advance passenger information (API) system, including guidelines for distribution, use and storage of data and a composite list of data elements that may be transferred between the operator and the receiving State. The first Edition was released in 2010. See Abeyratne (2005), pp. 170–174.
- 52.
The PNRGOV message is a standard electronic message endorsed jointly by WCO/ICAO/IATA. Depending on the specific aircraft operator’s Reservation and Departure Control Systems, specific data elements can be provided.
- 53.
ICAO is the specialized agency of the United Nations which addresses the subject of international civil aviation. The formation and purpose of The International Civil Aviation Organization (ICAO) is given in the Proceedings of the International Civil Aviation Conference (Chicago, Illinois, November1–December 7, 1944) as follows:
“On November 1944, representatives of 52 nations came together at Chicago, to create a framework for the growth anticipated in world civil aviation. The Convention on International Civil Aviation, also known as the Chicago Convention, provided the establishment of the International Civil Aviation Organization (ICAO)—an international body to guide and regulate international civil aviation. ICAO came into existence on 4 April 1947, after 26 states had ratified the convention. Between 1944 and 1947 a provisional organization (PICAO) operated, the purpose of which was to be of a technical and advisory nature of sovereign States for the purpose of collaboration in the field of international civil aviation and to lay down the foundation for a new international organization to be headquartered in Montreal, Canada.” Today, ICAO has 191 member States and is comprised of an Assembly, a Council and a Secretariat.
- 54.
The International Air Transport Association (IATA) is the trade association for the world’s airlines, representing some 265 airlines or 83% of total air traffic. IATA supports many areas of aviation activity and help formulate industry policy on critical aviation issues.
- 55.
ICAO Doc 9944, supra, notes 50 and 51 at 2.2.1.
- 56.
Id. 2.4.1.
- 57.
Id. 2.4.2.
- 58.
Id. 2.4.3.
- 59.
Id. 2.14.1.
- 60.
Id. 2.16.1.
- 61.
Id. 2.16.2.
- 62.
Id. 2.16.3.
- 63.
- 64.
US Airways Flight 1549 Full Cockpit Recording, https://www.youtube.com/watch?v=mLFZTzR5u84. The entire crew of Flight 1549 was awarded the Master’s Medal of the Guild of Air Pilots and Air Navigators. The award citations read, “This emergency ditching and evacuation, with the loss of no lives, is a heroic and unique aviation achievement”.
- 65.
Lowy.
- 66.
- 67.
Bolam v. Friern Hospital Management Company [1957} 1 WLR 582.
- 68.
The Bywell Castle (1879) 4 P.D. 219 at 226.
- 69.
(1976) IRLR 423.
- 70.
Id. 423. See also generally, Australia National Airlines Commission v. The Commonwealth of Australia and Canadian Pacific Airlines (1974–75) 132 CLR 582.
- 71.
See generally, Kelly III and Ham (2013).
- 72.
See Wilson (2000), pp. 51–53.
- 73.
In October 2015 the captain of an American Airlines jet bound from Phoenix to Boston passed away during flight. The first officer took command and landed the Airbus A320 in Syracuse, NY. This is just one such recorded incident. See When a Pilot Dies in Flight, http://www.askthepilot.com/pilot-dies-in-flight/.
- 74.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944. See ICAO Doc 7300, 9th edition:2006.
- 75.
Annex 6, at 4.5.1.
- 76.
See Speciale and Venhuizen (2007), pp. 817–836.
- 77.
Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo, on 14 Sep. 1963 See ICAO Doc 8364.
- 78.
Article 1.1 provides that the Convention applies in respect of: (a) offences against penal law; (b) acts which, whether or not they are offences, may or do jeopardize the safety of the aircraft or of persons or property therein or which jeopardize good order and discipline on board.
- 79.
Wilkes v. Woods, 98 Eng. Rep. 489 (C.P. 1763). Two years after the Wilkes case the issue of probable cause to have reason to believe was again addressed where the Court, in a case addressing trespass of personal property, held that a person must have probable cause to enter a premises without permission and if he did not have reason to believe that he was within the law when the act was committed he would be presumed to be guilty of the offence of trespass. See Entick v Carrington (1765), 19 St Tr 1029.
- 80.
- 81.
- 82.
Ibid. Singularity is the hypothesis that the invention of artificial superintelligence will abruptly trigger runaway technological growth, resulting in unfathomable changes to human civilization. See also, Watson (2012), pp. 40–62 at 44.
- 83.
- 84.
Airline Passenger Communications System—Market Trends and Forecasts: Technavio, Business Wire, December 08, 2016. See http://www.businesswire.com/news/home/20161108006112/en/Airline-Passenger-Communications-System-%E2%80%93-Market-Trends.
- 85.
Examples of the agile airport include Toronto Pearson International Airport, London Heathrow Airport, Singapore Changi International Airport, Hong Kong International Airport, and McCarron International Airport (Las Vegas). See Dr. Amir Fattah Howard Lock William Buller Shaun Kirby, Smart Airports: Transforming Passenger Experience To Thrive in the New Economy, Cisco Internet Business Solutions Group (IBSG), 2009 Cisco Systems, Inc.
- 86.
Id. at 3.
- 87.
Société Internationale de Télécommunications Aéronautiques, was founded in February 1949 by 11 airlines in order to bring about shared infrastructure cost efficiency by combining their communications networks. SITA was the first company to handle data traffic in real time via a packet switched network over common carrier leased lines.
- 88.
Smart Technology for Smarter Airports, http://www.sita.aero/resources/type/infographics/smart-technology-for-smarter-airports.
- 89.
Heathrow Commits to Becoming World’s First Dementia Friendly Airport, Airports International 16 August 2016. See http://www.airportsinternational.com/2016/08/heathrow-commits-to-becoming-worlds-first-dementSia-friendly-airport/17925. See also Abeyratne.
- 90.
See Vumbaca v. Terminal One Grp. Ass’n L.P., 859 F.Supp.2d 343 (E.D.N.Y. 2012).
- 91.
- 92.
See Garcia 2016.
- 93.
Babu (2016).
- 94.
See ACI/IATA Airport Terminal Beacons Recommended Practice, p. 10. This document can be accessed at http://www.airport-world.com/features/it/5983-the-benefits-of-beacons.html.
- 95.
Kohli (2016–2017), pp. 36–37 at 36.
- 96.
- 97.
See Abeyratne (2012), pp. 363–372.
- 98.
The eighteenth century British philosopher Jeremy Bentham propounded the concept of utilitarianism based on the need for commands and sanctions where he claimed that the “fundamental axiom” of his philosophy carried the principle that it is the greatest happiness of the greatest number that is the measure of right and wrong.
- 99.
The eighteenth century German philosopher Emmanuel Kant posited the principle of the categorical imperative where Kant argued that the human mind creates the structure of human experience, that reason is the source of morality.
- 100.
In comments published in October 2015 Mercedes-Benz executive Christoph von Hugo has said that the carmaker’s future autonomous cars will save the car’s driver and passengers, even if that means sacrificing the lives of pedestrians, in a situation where those are the only two options. See Morris (2016).
- 101.
Article 28 of the Convention on International Civil Aviation prescribes that each contracting State undertakes, so far as it may find practicable, to:
-
a)
Provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention;
-
b)
Adopt and put into operation the appropriate standard systems of communications procedure, codes, markings, signals, lighting and other operational practices and rules which may be recommended or established from time to time, pursuant to this Convention;
-
c)
Collaborate in international measures to secure the publication of aeronautical maps and charts in accordance with standards which may be recommended or established from time to time, pursuant to this Convention
-
a)
- 102.
The International Civil Aviation Organization is the United Nations specialized agency dealing with international civil aviation. ICAO was established by the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944. Fifty-two States signed the Chicago Convention on 7 December 1944. The Convention came into force on 4 April 1947, on the thirtieth day after deposit with the Government of the United States. Article 43 of the Convention states that an Organization to be named the International Civil Aviation Organization is formed by the Convention. ICAO is made up of an Assembly, which is the sovereign body of the Organization composed of the entirety of ICAO member (Contracting) States, and a Council which elects its own president. The Assembly, which meets at least once every 3 years, is convened by the Council. The Council is a permanent organ responsible to the Assembly, composed of 36 Contracting States. See Convention on International Civil Aviation, ICAO Doc 7300: 9th Edition, 2006, Articles 43 and 44.
- 103.
Article 57 of The Charter provides inter alia that the various specialized agencies, established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields, shall be brought into relationship with the United Nations and are referred to as specialized agencies.
- 104.
At the first ICAO Assembly held in May 1947, The Assembly adopted Resolution A1-2, which approved the agreement of relationship with the United Nations (UN) and authorized the President of the ICAO Council to sign a protocol bringing into force the agreement concerning such a relationship between the UN and ICAO.
- 105.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944. See ICAO Doc 7300/9: 2006.
- 106.
- 107.
- 108.
The 17 SDGs are: end poverty in all its forms everywhere; end hunger, achieve food security and improved nutrition and promote sustainable agriculture; ensure healthy lives and promote well-being for all at all ages; ensure inclusive and equitable quality education and promote lifelong learning opportunities for all; achieve gender equality and empower all women and girls; ensure availability and sustainable management of water and sanitation for all; ensure access to affordable, reliable, sustainable and modern energy for all; promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all; build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation; reduce inequality within and among countries; make cities and human settlements inclusive, safe, resilient and sustainable; ensure sustainable consumption and production patterns; take urgent action to combat climate change and its impacts; conserve and sustainably use the oceans, seas and marine resources for sustainable development; protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss; promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels; strengthen the means of implementation and revitalize the global partnership for sustainable development.
- 109.
See http://www.icao.int/about-icao/aviation-development/Pages/SDG.aspx. ICAO has not identified the 4 SDGs that are not directly relevant to the mission and vision of IC AO. The author believes that the following 6 SDGs are not within the purview of ICAO: end poverty in all its forms everywhere; no hunger; ensure availability and sustainable management of water and sanitation for all; conserve and sustainably use the oceans, seas and marine resources for sustainable development; protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss; and promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.
- 110.
Resolutions Adopted by the Assembly, Provisional Edition, October 2015, at 104.
- 111.
Id., at 108.
- 112.
The least developed countries (LDCs) are a group of countries that have been classified by the UN as “least developed” in terms of their low gross national income (GNI), their weak human assets and their high degree of economic vulnerability.
- 113.
Landlocked Developing Countries. UNCTAD reports that Currently, 31 countries belong to the Group of landlocked developing countries (LLDCs): 15 are located in Africa, 12 in Asia, 2 in Latin America and 2 in Central and Eastern Europe.
- 114.
Small Island Developing States (SIDS) are low-lying coastal countries that tend to share similar sustainable development challenges, including small but growing populations, limited resources, remoteness, susceptibility to natural disasters, vulnerability to external shocks, and excessive dependence on international trade.
- 115.
Standard 8.8 States: “Contracting States shall facilitate the entry into, departure from and transit through their territories of aircraft engaged in relief flights performed by or on behalf of international organizations recognized by the UN or by or on behalf of States themselves and shall take all possible measures to ensure their safe operation. Such relief flights are those undertaken in response to natural and man-made disasters which seriously endanger human health or the environment, as well as similar emergency situations where UN assistance is required. Such flights shall be commenced as quickly as possible after obtaining agreement with the recipient State.
Note 1.— According to its Internationally Agreed Glossary of Basic Terms, the United Nations Department of
Humanitarian Affairs considers an emergency to be “a sudden and usually unforeseen event that calls for immediate
measures to minimize its adverse consequences”, and a disaster to be “a serious disruption of the functioning of society, causing widespread human, material or environmental losses which exceed the ability of the affected society to cope using only its own resources”.
Note 2. — With respect to the application of measures to ensure the safe operation of relief flights, attention is drawn to Annex 11 — Air Traffic Services, the Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations (Doc 9554) and the Manual concerning Interception of Civil Aircraft (Doc 9433)”.
Standard 8.9 States: “Contracting States shall ensure that personnel and articles arriving on relief flights referred to in 8.8 are cleared without delay”.
- 116.
Annex 9, Facilitation, Thirteenth Edition—July 2011, Chapter 8, C, Standard 8.8, note 1 Ibid.
- 117.
Charter of the United Nations and Statute of the International Court of Justice, United Nations: New York, Article 1.3.
- 118.
Id. Chapter VII Articles 39, 41 and 42.
- 119.
Id. Article 42.
- 120.
S/RES/794 (1992) 3 December 1992.
- 121.
S/RES/770 (1992) 13 August 1992.
- 122.
See also the earlier Security Council Resolution 688 (1991), 5 April 1991 whereby the Security Council expressed grave concern at the repression of the Iraqi civilian population in parts of Iraq and insisted that Iraq allow immediate access by international humanitarian organizations to all parts of Iraq.
- 123.
Geneva Conventions for the Amelioration of the Wounded and Sick in Armed Forces in the Field, Geneva Conventions of August 12 1949, International Committee of the Red Cross, Geneva: 1970, Article 36.
- 124.
Id. Article 37.
- 125.
Military and Para Military Activities in and Against Nicaragua (Nicaragua v. US) Merits I.C.J. Rep. 1986 at 14.
- 126.
Id. para 242.
- 127.
The International Civil Aviation Organization, a specialized agency of the United Nations, was established by Article 43 of the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006). The main objectives of ICAO are to develop the principles and techniques of international air navigation and to foster the planning and development of air transport. ICAO has 191 Contracting States.
- 128.
For a detailed discussion on the historical development of ICAO’s work on aviation and the environment and challenges faced, see Abeyratne (2007), pp. 99–106 and by the same author, Aviation and Climate Change—In Search of a Global Market Based Measure (2014e), pp. 69–150. The two books address ICAO’s work up to 2013 and this article discusses work carried out by ICAO from 2013 to 2016 when the 39th Session of the ICAO Assembly took place.
- 129.
See Abeyratne (2014e), Id. 98.
- 130.
The Pareto principle is a principle, named after economist Vilfredo Pareto, that specifies an unequal relationship between inputs and outputs.
- 131.
A straw-man proposal is a brainstormed simple draft proposal intended to generate discussion of its disadvantages and to provoke the generation of new and better proposals. Often, a straw man document will be prepared by one or two people prior to kicking off a larger project. In this way, the team can jump start their discussions with a document that is likely to contain many, but not all the key aspects to be discussed. As the document is revised, it may be given other edition names such as the more solid-sounding “stone-man”, “iron-man”, and so on. For example, under the Strawman approach taken by ICAO if one were to suggest that the best way to go is to impose a tax on fuel, the EAG would have to falsify this premise, perhaps taking into consideration arguments against it.
- 132.
Taking a scientific analogy, this approach can be related to the theory of falsification propounded by scientist and philosopher Karl Popper who stated that falsifiability is a criterion for deciding whether or not a theoretical system belongs to empirical science.
- 133.
The Committee on Aviation Environmental Protection (CAEP) is a technical committee of the ICAO Council established in 1983. CAEP assists the Council in formulating new policies and adopting new Standards and Recommended Practices (SARPs) related to aircraft noise and emissions, and more generally to aviation environmental impact.
- 134.
For an in-depth discussion on ICAO’s Strawman approach see Abeyratne (2015b), pp. 102–107.
- 135.
The European Parliament, on 8 July 2008, voted to expand the European Union’s Emissions Trading Scheme to cover aviation engine emissions by requiring that all airlines leaving from or landing at airports in the EU will have to buy pollution credits commencing in 2012. According to this requirement, 85% of the emissions certificates will be allocated for free and 15% will be auctioned. The reduction target will be calculated on the basis of airlines’ annual emissions between 2004 and 2006. In the first period (2012) the cut in airlines emissions would be 3% and in the period to follow commencing 2013 the emissions would be cut by 5%. Research flights and small airlines producing low emissions would be excluded.
- 136.
See Abeyratne (2008), pp. 155–160.
- 137.
Thompson (2016), pp. 105–112 at 106. See http://cclr.lexxion.eu/article/CCLR/2016/2/6.
- 138.
Ritchie (2016), p. 91. See http://cclr.lexxion.eu/article/CCLR/2016/2/3.
- 139.
ICAO Environment Report 2016, at 99. See http://www.icao.int/environmental-protection/Documents/ICAO%20Environmental%20Report%202016.pdf.
- 140.
The tenth meeting of CAEP in February 2016, after a review of all its findings, reported to the Council its recommendations. See generally, ICAO Environment Report id. Chapter 4: Global Emissions.
- 141.
- 142.
Ibid. See also, Monbiot (2007), p. 198.
- 143.
The Paris Agreement is an agreement within the United Nations Framework Convention on Climate Change (UNFCCC) dealing with greenhouse gases emissions mitigation, adaptation and finance starting in the year 2020. The language of the agreement was negotiated by representatives of 195 countries at the 21st Conference of the Parties of the UNFCCC in Paris and adopted by consensus on 12 December 2015. It was opened for signature on 22 April 2016 (Earth Day) in a ceremony in New York City.
- 144.
Decision 1/CP21, Adoption of The Paris Agreement, Annex, UNDOC FCCC/CP2-15/10/Add.1, January 2016.
- 145.
IATA AGM Urges Governments to Adopt a Global Carbon Offsetting Scheme, https://www.highbeam.com/doc/1G1-454220351.html.
- 146.
Comments on the Cost Impact of a Global Carbon Offsetting Mechanism, A39-WP/153, Ex/57, 9/8/16.
- 147.
- 148.
Vaishnav (2016), pp. 120–126 at 121. See http://cclr.lexxion.eu/article/CCLR/2016/2/9.
- 149.
Id. 122.
- 150.
ICAO Global Aviation Dialogues (GLADs), HLM-GMBM—WP/3, 26/04/16.
- 151.
Report on the Results of the High Level Meeting on a Global Market Based Measure Scheme (HLM-GMBM), HLM-GMBM Oral Report, 24/05/16 at 1–2.
- 152.
It is interesting to note that both the Warsaw Convention of 1929 and the Montreal Convention of 1999 (which replaced the Warsaw Convention) on private air carrier liability consider “international carriage” as carriage of persons, mail and freight from a point in one country to a point in another country or between two points in the same country where there in agreed stopping place in another country.
- 153.
Argentina, Brazil, India, Panama, Russian Federation and Saudi Arabia.
- 154.
The Paris Agreement decided the following: reaffirm the goal of limiting global temperature increase well below 2 °C, while urging efforts to limit the increase to 1.5°; establish binding commitments by all parties to make “nationally determined contributions” (NDCs), and to pursue domestic measures aimed at achieving them; commit all countries to report regularly on their emissions and “progress made in implementing and achieving” their NDCs, and to undergo international review; commit all countries to submit new NDCs every 5 years, with the clear expectation that they will “represent a progression” beyond previous ones; reaffirm the binding obligations of developed countries under the UNFCCC to support the efforts of developing countries, while for the first time encouraging voluntary contributions by developing countries too; extend the current goal of mobilizing $100 billion a year in support by 2020 through 2025, with a new, higher goal to be set for the period after 2025; extend a mechanism to address “loss and damage” resulting from climate change, which explicitly will not “involve or provide a basis for any liability or compensation;” require parties engaging in international emissions trading to avoid “double counting;” and Call for a new mechanism, similar to the Clean Development Mechanism under the Kyoto Protocol, enabling emission reductions in one country to be counted toward another country’s NDC. See http://www.c2es.org/international/negotiations/cop21-paris/summary.
- 155.
Views of ICSA on a Global Market Based Measure for International Civil Aviation, HLM-GMBM -WP/6, 26/04/16 at 2.
- 156.
Id., at 3.
- 157.
Key Messages from IETA on Global Market Based Measure Design, HLM-GMBM—WP/7, 26/04/16.
- 158.
Id. At 5.
- 159.
Views of the United States on a Global MBM Scheme for International Aviation, HLM-GMBM-WP/4, 26/04/16 at 2–3.
- 160.
China’s Perspective on a Global Market Based Measure Scheme, HLM-GMBM—WP/10, 5/05/16 at 2.
- 161.
China’s proposal in this context was to establish a GMBM scheme in the form of a Carbon Offsetting Scheme for International Aviation (COSIA) for use by Member States on a nationally determined contribution basis from 2021 to 2025. Developed states and other states having an individual share of international aviation activities in RTKs in year 2018 above 0.5% of total RTKs should communicate their nationally determined contributions (the amount of CO2 emissions to be offset by aircraft operators registered in the country) to GMBM to ICAO for that period(2021–2025)before June 30th, 2020. Those states having an individual share of international aviation activities in RTKs in year 2018 below 0.5% of total RTKs are encouraged to do so. Id. At 3.
- 162.
On the phased implementation basis an Assembly working paper was presented to the 39th Session of the Assembly which took place in Montreal in September/October 2016. See Consolidated Statement of Continuing ICAO Policies and Practices Relating to Environmental Protection—Global Market Based Measures, A39-WP/52, Ex/29, 1/09/16 at 3.
- 163.
Civil Aviation and The Environment, A39-WP/51, EX/28, 30/06/16.
- 164.
Resolution A39-XX: Consolidated statement of continuing ICAO policies and practices related to environmental protection—Global Market-based Measure (MBM) scheme, A39-WP/52, EX/29, 1/09/16, Appendix B, clause 4.
- 165.
Present And Future Aircraft Noise And Emissions Trends, A39-WP/55, EX/32, 17/06/16 at 2–3.
- 166.
Presented by Slovakia on behalf of the European Union and its Member States (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxemburg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and United Kingdom), and the other Member States of the European Civil Aviation Conference (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Iceland, Republic of Moldova, Monaco, Montenegro, Norway, San Marino, Serbia, Switzerland, The former Yugoslav Republic of Macedonia, Turkey and Ukraine).
- 167.
European Comprehensive Approach to Environmental Protection, A39-WP/91, Ex. 42, 18/07/16.
- 168.
Id at 3.
- 169.
According to the Buddy Programme, States that have submitted action plans are encouraged to build partnerships with Member States that have not yet prepared action plans, in order to provide support and share experiences and knowledge. By June 2016, three such partnerships had been established, multiplying the environmental benefits of States’ Action Plans.
- 170.
States’ Voluntary Action Plans On CO2 Emissions Reduction Activities, A39-WP/54, EX/31, 17/06/1, at 2.
- 171.
The No Country Left Behind (NCLB) campaign highlights ICAO’s efforts to assist States in implementing ICAO Standards and Recommended Practices (SARPs). The main goal of this work is to help ensure that SARP implementation is better harmonized globally so that all States have access to the significant socio-economic benefits of safe and reliable air transport. The NCLB effort also promotes ICAO’s efforts to resolve Significant Safety Concerns (SSCs) brought to light through ICAO’s safety oversight audits as well as other safety, security and emissions-related objectives. See http://www.icao.int/about-icao/NCLB/Pages/default.asp.
- 172.
Id. at 5.
- 173.
See generally, Key Design Elements of the Global Market-Based Measures for International Civil Aviation: Brazil’s Position, A39-WP/233 EX/92 16/8/16.
- 174.
Comments On the Cost Impact of a Global Carbon Offsetting Mechanism, A39-WP/153, EX/57, 9/8/16, at 1.
- 175.
Industry Views on a Global Market-Based Measure for International Aviation, presented by the Airports Council International (ACI), the Civil Air Navigation Services Organisation (CANSO), the International Air Transport Association (IATA), the International Business Aviation Council (IBAC) and the International Coordinating Council of Aerospace Industries Associations (ICCAIA), A39-WP/155, EX/59 9/8/16, at 3.
- 176.
The Paris Agreement’s central aim is to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 °C. Additionally, the agreement aims to strengthen the ability of countries to deal with the impacts of climate change. To reach these ambitious goals, appropriate financial flows, a new technology framework and an enhanced capacity building framework will be put in place, thus supporting action by developing countries and the most vulnerable countries, in line with their own national objectives. The Agreement also provides for enhanced transparency of action and support through a more robust transparency framework.
- 177.
ICAO’s Universal Safety Oversight Audit Programme (USOAP) was initially launched in January 1999, in response to widespread concerns about the adequacy of aviation safety oversight around the world. Initially, USOAP activities consisted in regular and mandatory audits of ICAO Member States’ safety oversight systems.
USOAP audits focus on a State’s capability in providing safety oversight by assessing whether the State has effectively and consistently implemented the critical elements (CEs) of a safety oversight system, which enable the State to ensure the implementation of ICAO’s safety-related Standards and Recommended Practices (SARPs) and associated procedures and guidance material. In 2007 The 36th Session of the ICAO Assembly adopted a Resolution (A36-14) which adopted the new USOAP Continuous Monitoring Approach (CMA which introduced a systematic and more proactive conduct of monitoring activities in would make a more effective and efficient use of ICAO resources and reduced the burden on States caused by repetitive audits.
- 178.
Article 38 of the Chicago Convention provides: “Any State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixty days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take. In any such case, the Council shall make immediate notification to all other states of the difference which exists between one or features of an international standard and the corresponding national practice of that State.
- 179.
Earth’s climate change tipping point to start in 2020, new model predicts, http://www.japantimes.co.jp/life/2013/10/10/environment/earths-climate-change-tipping-point-to-start-in-2020-new-model-predicts/#.WAkfH4WcFjo.
- 180.
Romm.
- 181.
More than 80 NGOs oppose aviation sector’s carbon offsetting plans, World Rainforest Movement (2015).
- 182.
Lang (2016).
- 183.
Resolution A39-XX: Consolidated statement of continuing ICAO policies and practices related to environmental protection—Global Market-based Measure (MBM) scheme, A39-WP/52 EX/29 Appendix B.
- 184.
- 185.
The fundamental issue in limine is whether resolutions adopted by the United Nations bodies form hard law which States are legally bound to adhere to. Brownlie has expressed the view that decisions by international conferences and organizations can in principle only bind those States accepting them. See Brownlie (1990), p. 691. Malcolm Shaw, referring to the binding force of United Nations General Assembly Resolutions states: “…one must be alive to the dangers in ascribing legal value to everything that emanates from the Assembly. Resolutions are often the results of political compromises and arrangements and, comprehended in that sense, never intended to constitute binding norms. Great care must be taken in moving from a plethora of practice to the identification of legal norms” See Shaw (2003), p. 110.
- 186.
- 187.
- 188.
Article 55 d) identifies as a permissive function (non-mandatory) of the ICAO Council to study any matters affecting the organization and operation of international air transport, including the inter- national ownership and operation of international air services on trunk routes, and submit to the Assembly plans in relation thereto.
- 189.
- 190.
Alternative Fuls, The MIT Laboratory for Aviation and the Environment, http://lae.mit.edu/alternative-fuels/.
- 191.
IoT is part of IBM’s bigger bet on investing on newer technologies to offset declines in the company’s legacy businesses of servers and the tech that supports them (although it’s trying to make a new spin on that, too). In 2014, it committed to invest $3 billion over 4 years to build out that IoT business, which is based around its Watson artificial intelligence business.
- 192.
- 193.
Brownlie (1990), p. 691.
- 194.
Of the 19 Annexes to the Chicago Convention only two (Annex 9 on facilitation and Annex 17 on security) are on air transport.
- 195.
Supra, note 5.
- 196.
Id. Article 49.
- 197.
Zoller (1987), p. 32.
- 198.
Brownlie (1990), p. 691.
- 199.
Shaw (2003), p. 110.
- 200.
Id. 111. See also Tammes (1958), p. 265.
- 201.
- 202.
A39-4: Amendment to Article 50 (a) of the Convention on International Civil Aviation; A39-5: Ratification of the Protocol amending Article 50 (a) of the Convention on International Civil Aviation; A39-6: Amendment to Article 56 of the Convention on International Civil Aviation; and A39-7: Ratification of the Protocol amending Article 56 of the Convention on International Civil Aviation.
- 203.
The Topic “Consideration of Guidance On Conflicts Of Interest” Should Be Added To The Work Programme Of The Legal Committee A37-WP/80, LE/6 20/8/10.
- 204.
Conflicts of Interest in Civil Aviation, A39-WP/77 LE/3 5/8/16.
- 205.
Approved Check Dispatcher Manual, Section 1.5. http://www.tc.gc.ca/eng/civilaviation/publications/tp14114-chapter1-section1-5-322.htm.
- 206.
Id. 1.5.2.
- 207.
- 208.
On Sunday 28 December of 2014 Air Asia flight QZ 8501 crashed into the Java sea on its way from Surabaya to Singapore, killing all 162 passengers and crew on board. It was later reported that the flight did not have authorization to be operated on the route on Sundays since authorization had been withdrawn by the Indonesian authorities. Later, on 2 January 2015, the Indonesian authorities suspended Air Asia flights departing from Indonesian airport and brought in strict regulations and even stricter monitoring and supervision controls in its air transport system.
- 209.
A Malaysian Airlines aircraft which took off from Kuala Lumpur for Beijing at 12.41 a.m. on Saturday, 8 March 2014 lost contact with air traffic control two hours into the flight. The Boeing 777-200 carrying 239 people including 12 crew members carried fourteen nationalities (mostly Chinese but Malaysian, Indonesian and Australians as well) on board. At the time of writing the aircraft and passengers on board were still missing.
- 210.
Malaysian Airlines Flight MH 17, operated by a Boeing 777-200ER aircraft flying from Amsterdam to Kuala Lumpur on 17 July 2014, and carrying 283 passengers and 15 crew, was shot down by a BUK surface to air missile over Donetsk Oblast in Eastern Ukraine, while at an altitude of 10,000 meters. All those on board perished.
- 211.
2014 SCC 67, [2014] 3.
- 212.
[1997] AC 430.
- 213.
525 US 155 (1999).
- 214.
Docket No. 99-7617, Decided: June 08 2000. See http://caselaw.findlaw.com/us-2nd-circuit/1013697.html.
- 215.
The two instruments adopted by the Beijing Conference are the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (hereinafter ‘Beijing Convention’ or ‘Beijing Treaty’) and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft.
- 216.
On 21 June 2015, hackers attacked the computer system of LOT Polish Airlines, grounding several aircraft, resulting in the grounding of 10 flights and delay caused to 12 other flights. This caused severe inconvenience to nearly 1500 passengers. For more details, see Abeyratne (2011c), pp. 243–255.
- 217.
GASP sets out the global air navigation safety objectives including specific milestones and priorities to be addressed by State and regional aviation safety planners. Secondly, it provides a familiar planning framework to assist States and regions to make improvements in safety through the use of the four Safety Performance Enablers: standardization, collaboration, resources and safety information exchange. Finally, it outlines implementation strategies and best practice guidance material to assist States and regions in their efforts to tailor State and regional solutions to address the global objectives and priorities.
- 218.
At its 12th Air Navigation Conference (AN-Conf/12) held in Montréal, from 19 to 30 November 2012, the International Civil Aviation Organization (ICAO) introduced its Global Air Navigation Capacity and Efficiency Plan (GANP) for the period 2013 to 2028. The Plan is meant to be approved by the ICAO Assembly at its sessions every 3 years. This is the fourth such Plan adopted by ICAO over the years and is based on operational objectives agreed upon by States and the aviation industry. It provides for a rolling15 year strategic methodology and introduces Aviation System Block Upgrades (ASBUs), each of which has a 5-year time scale.
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Abeyratne, R. (2017). Megatrends and Air Transport: An Overview. In: Megatrends and Air Transport. Springer, Cham. https://doi.org/10.1007/978-3-319-61124-2_1
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