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Air and Space Law: part 1 (Air Law)
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Notes of the first set of lessons given by Prof. Wouters on Air Law.
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Air and Space LawAir Law
Introduction
Air is a wrong word, it grew historically, but air law is the wrong word for what we’re
going to see: it’s something dynamic, so aviation law or air transport law. What happens
in the air? The second part is law: it means dedication to regulation, we’re not speaking
about engineering or piloting, but regulate what’s happening in the law. What is
expected: not that you know everything by heart but show that you can think. The exam
is open book, so you can use anything you can find. Except for your computer. You will
have two cases to resolve showing that you can play with the things we have seen in
class. There will also be a technical question, f.e. on the spot or an assignment.
It won’t just be a lesson where the Prof teaches, but you’ll have to think with her. Think
together with the Professor. We’ll stir up a discussion and enter it. Think, give remarks.
People coming from different parts of the world think differently, and now we also have
international students. You don’t always have to agree with the professor. If you thought
it well through, you’ll have your marks. The goal of this course today is an introduction
to the course and to each other. The content of the course is not steady, depended on
what you really want to know. Think about the future as well. Where are we going to?
Next two classes will be about specific subjects, the third one we can fill in. Today will be
an overview, what do you expect from the course?
Prof. Mia Wouters: lawyer. Studied in Montreal, Air and Space Law. Leiden didn’t exist
yet. There was a rivalry between the two. Closer by, in Keulen, and in Paris II. It’s
popping up everywhere, it’s becoming popular because people start to see its
commercial value. Aviation is different from other forms of transport and transport is
different from the rest of commercial activities. The fact that transport is different, was
already recognized in the treaty of Rome that founded the EU. When the EU came into
being, the founders recognized there were sectors that could not be treated like the
others. Are there other sectors you can think of that should be treated differently? Don’t
think Belgian because for us it was not that important: agriculture. Already Rome said
transport is different, what do you think they found transport is different than other
sector, why do they need to have a different regime, what is the reason (art. 47)?
Because it’s cross-border. Financing, is that cross-border? What else? There was the
cargo side. What is different, transport in general? Moving. What else. The Treaty said
and think about it: for transport is heavily depended on infrastructure, so that’s very
important. Think about boats, rails, busses, aircraft… infrastructure is important. Also,
(Prof. doesn’t agree this applies on aviation) the lack of elasticity of supply and demand.
Elastic is: you adapt your price. When de demand is high, the price goes up. Do you not
have many demands, you go down with your price? Prof thinks elasticity is very high.
When you’re in an aircraft, the people next to you didn’t pay the same price. When you
look at trains f.e. the elasticity isn’t high. Also, it’s a public service. Aviation is one of the
hardest hit sectors at this time by corona. Then they also say the infrastructure cost is
very high, especially for maritime (ports) and aviation (airports). That is the difference
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,between transport and other modes of activities. That is what all modes of transport
have in common.
What makes aviation special? Why is it different from maritime, rail…? Sovereignty.
Maritime is more important in terms of transport (cargo). Aviation is more important in
terms of transport of passengers. This is a difference. When it’s time sensitive we’ll ship
it by aircraft. What cargo do we have to ship quickly? Exotic foods, mail, perishable
goods, and most of all flowers.
Now we’ve seen differences and similarities. Is aviation important? What is the
importance? Why should you be studying this? It brings together cultures and prevents
wars. Why else is it important: economic factor, commercial factor. Creates a lot of jobs.
Assignment for next time: look up one thing you find you didn’t know about aviation, for
example how many jobs it creates. Look up something remarkable. There are economic
benefits, and we forget that often. It’s polluting, but we forget all the benefits, including
the social benefits. Transport of organs as well for example.
You know about aviation. What is in your mind the trend, what is new? Alternative fuels,
still quite expensive though. New shapes of planes. Supersonic is coming again. Drones:
this is the future. There are two types, and the autonomous drones have a lot of
problems, it’s still operated. This is aviation law. What is a drone? Is it an aircraft? Yes, it
is. The first drones were operated by a pilot, but remotely, and we still to this today.
Somebody is still in control. We also have the autonomous drones, they work on AI,
nobody controls them. They are pre-programmed. We imagine a drone being operated.
The AI drones are coming, and the military already use them. No human interference is
possible with an autonomous drone. We’ll have a lecture about drones. We have new
challenges in aviation because of the drones. The regulator in aviation was extremely
visionary and was way ahead of what was going to happen. Now, he’s running behind
the facts and that’s too bad, we’ve lost the visionary impulse. What else do we see that’s
new: electric planes. This is going to change the structure of how we see aviation. This is
inexpensive, we’ll have small aircraft with only a few people on boards, but there’ll be
more flights. The take-off landing is sometimes vertical, so you don’t need a big airport.
What else: what are other challenges? Competition is going to be killing. Airlines will not
be able to survive. For example, AlItalia. Ita is the new Italian Airline. They couldn’t take
everyone over. They rehired under new contracts. Ancienniteit didn’t play anymore.
Also: what you need is a slot, there is only so much capacity at an airport. Let’s say 60
aircrafts can move every hour, so you need a slot, and everyone wants to take off on the
nice hours. There is a mechanism to do this, once you have a slot you keep it. Is that fair?
Shouldn’t they auction them every season? No, they don’t do this. When you don’t fly and
you have slots there, within Europe the rule is use it or lose it and then it’ll go back in the
pool where it will be auctioned. Some are flying empty aircrafts just to use the slot. An
aircraft with passengers is also flying a lot of cargo. Some airlines rebuilt their airline
into a cargo airline. They are very innovative. When they fly empty, they just fly cargo.
Cargo has become very important, especially since corona. Delivery at home, everyone
wants their service faster. The winner is the airline with the fastest service. Everything
has to go faster, that’s new as well. What comes with this: when you need fast delivery,
what else do we want better? What do you need more? We need to integrate; we need to
move smoothly. The winners are the Amazons who use a platform, used by the buyer
and seller and shipper, everyone logs in and you track it on the platform, it’s integrated.
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,We are creating platforms and those are best created by airports. That’s very new. Also:
the fair. Do you think this is sustainable, the fact that you fly to Rome for 10 euros?
Elasticity is not heavy there. The passenger that has to go from A to B, he will fly as long
as the price is reasonable. When you make your money, you do it with the business
passenger. What do you need to cover, how do you put your price? How do you decide
you can fly for 10 euros to Rome? Think like an economist: cost, such as fuel, this is
recurrent, such as leasing an aircraft, this is a fixed cost, you must cover these. You can’t
change them. The cost of the pilots, renting buildings. There are also variable costs.
What are those: food, flight attendants. Low-cost airlines don’t give much service,
because that’s your variable cost. That’s a trend we see: the unbundling. They unbundle
the service. You buy what you need. You just pay for what you want, which brings down
the price. We used to have a lot of choice, f.e. Ryanair flies to secondary airports.
Airports have charges, airlines are screaming because they have to pay those, but the
airport can’t survive without this income. Brussels for instance, their charges are higher
than Charlerloi. This means there is more choice for the consumer because there are a
lot of destinations. You need to have enough people on an aircraft. You still have to cover
these costs. If you have 100 passengers, how many seats do you need to cover to cover
the costs? That’s the load factor. Only when you go over the load factor, you’ll make
money. You need to have a turnover on passengers, you need a certain amount,
otherwise you better don’t fly. That’s why flights get annulated. It’s cheaper not to fly
than to fly in some cases.
The different conventions. Why are those important: because it’s international law. The
first aviation is a hot air balloon, in 1783. In 84, there was a prohibition of flying with hot
air balloons above cities without permission. With all the houses then, they were
wooden, it could destroy a whole city. The first case is in 1832, also about a hot air
balloon. They become a problem. Some countries said: when we go to the boarder and
we go up with the balloon, they could see what the neighbor countries were doing. So,
the case was about spying in 1898. A treaty follows between the two countries who state
to stay in their own country. In the 1900s hot air balloons became a hot item. Then the
zeppelins came. In 1903 we have the White brothers. They flew in the States. What a lot
of people forget: in 1907 Blaireau flew from France to England, and he was the first one
to cross the sea and to fly to another country. 1908, the French Government took the
initiative to regulate this. The call together in Paris European countries, in 1908. Already
then, they were ahead of their time. The real debate started in Paris in 1908. It could
have been totally different. In 1910 there was a conference but there was no outcome,
there was no consensus. UK, as always, said they didn’t care, and their air belonged to
them, and no one could come in. In 1914 we have the first airline. Now we have the first
world war. After the war and in the war, we saw how important aviation became to be.
We have to solve this. Paris again, calls everyone together, and US and Russia were
invited this time as well. There was a consensus to go for sovereignty, but both US and
Russia did not want to sign the agreement. If US didn’t sign it, this thing stood for
nothing. Next on the timeline is 1930, very important! We have the first development of
the DC 3, an aircraft big enough to transport people in large amount. This is important,
here comes the money, what are we going to do? Something else happens, WWII.
Aviation played an important role here. After the WW in 1944, people knew we had to
solve this because we needed certainty. Roosevelt called everyone in Chicago in 1944,
and he said we had to agree about this, the whole world was there. What are we going to
do with air, is it going to be open, like the sea, or are we going to close it? US said no
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, sovereignty, it should be free for everybody, the British now wanted it to close as well.
Why is the US saying this? What is the reason? It has to do with the bombing. During the
war, the EU was heavily bombed, and the industry in America was intact, they were
producing the aircrafts, and in EU the industry was flattened out because of the
bombing, so US sees the money. It was stopped by the UK because they wanted to
rebuild their industry. As always, follow the money. Chicago said the principle is here,
the first article of the convention says sovereignty, every state has complete and
exclusive jurisdiction over the airspace. The whole world came together in Chicago, and
the whole world was going the draft the convention, it’s a bit like the constitution of
aviation. The convention also said equality of states. Every state has an equal right to
participate in aviation. No interference: one country is not allowed to interfere in
another country. And still up to date. Very important: obligation of uniformity: we’re
going to lay down uniform rules, when you sign the convention, you are not allowed to
deviate. Uniformity. There is an overfly, they regulated this. Extremely important:
nationality. Every aircraft that is in the air needs to have a nationality, it’s like every
person has a nationality, every aircraft has this as well, and the country that is giving the
nationality must oversee the aircraft and make sure the aircraft complies with all the
other things, such as security. Very important. Chicago set up a permanent body, it’s
called “AIKEO” (ICAO). It’s set up in Montreal. It’s an agency of the United Nations. The
whole world is represented there. What does ICAO do: it lays down sops, standards: you
can’t deviate. Recommended practices: you can deviate. ICAO issued 19 amendments to
the convention of Chicago. ICAO further on made 19 annexes, and in those annexes, they
regulate f.e. personal licensing: who can operate an aircraft, there is a minimum
standard in there. The second one is the rules of the air, how am I flying. How does an
aircraft fly? They have to follow corridors, and because of sovereignty every state can
say: that part of my country you can’t fly over. Every country has parts you cannot
overfly with aircrafts. France has lots of them, f.e. not flying over where the King lives in
Belgium. The real problem is that every country is doing this on its own, they hand you
over to the country you’re flying in (the monitoring). This is not really efficient.
Operation of aircraft, how to maintain it? An aircraft needs to be airworthy, be able to
stay in the air. This doesn’t belong to an airline; they shouldn’t oversee it. This is
controlled by the government. In Europe, we have created EASA, a European agency for
safety. They are overseeing European standards. In America they have FAA (?). there are
also airports: when some aircraft’s lands in an airport, every airport has to have the
same lay-out. Annex 13: when there’s an accident, you do an investigation like told in
annex 13. That annex says what you have to investigate and what you have to report.
The annex doesn’t blame anyone. You will only have to say what happened. That’s to be
able to prevent these things from happening again, and you shouldn’t blame anyone.
There is also an annex on dangerous goods. There are 19 annexes, and they give you an
idea of how to fly etc.
Chicago said: sovereignty. You need to have permission to fly into someone else’s
country. The permission is given by countries. F.e. Japan and Canada come together, and
Canada wants to fly to Japan. Japan wants to fly to Canada. They both have exclusive
rights. How hard is your desire to fly to Japan? What are you going to give me to fly to
Japan? Canada says: if I can fly to Japan five times, you can fly to Canada 2 times, because
I’m a bigger country. It really works like that! It’s trading and showing muscles. Once a
bilateral comes, what do you think has to be decided in this? F.e. how many times can I
fly, these are the traffic rights. Before Canada flies to Japan, they’ll have to overfly a lot of
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