Air and Space Law
Air 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 between transport and other modes of activities.
That is what all modes of transport have in common.
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,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. 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
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,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 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
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, 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 other countries.
Chicago says that overflying is no problem, the countries you will overfly that signed
Chicago, have to allow it. Of course, not dropping passengers. Another thing: it’s not for
free. So, to overfly you have to pay a certain amount of money to the country you’re
overflying. Euro control makes lots of money, they bring in all the money for overflying
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