Even though aviation is one of the driving forces of globalization, the airline industry itself remains far from being globalized: A framework of bilateral aviation agreements with rather restrictive national control on cross-border investment and competition mainly governs the civil airline industry. The Open Skies agreements between 11 EU Member States and the US can be seen as an attempt to introduce various liberal elements to the bilateral aviation agreements, while preserving the strict provisions on cross-border investment. However, the existence of the Open Skies agreements was put into question when on 5thNovember 2002 the European Court of Justice (ECJ) judged these agreements between the EU Member States and the US illegal under EU law, as they infringed both primary and secondary EU legislation. Moreover by declaring a mixed competence between the European Commission and the Member States in the field of external air transport, the ECJ judgment marked a decisive turn in the EU´s history of air transport policy. The ECJ judgement thus entailed significant legal and economic consequences for the international civil aviation between the EU and the US. As to the precise future of the Open Skies agreements however, the ECJ remained evasive, imposing on the involved parties the burden of legal incertainty. Economically a sort of free trade area for air transport between the EU and the US, the two biggest aviation markets, seems the most reasonable solution, being of utmost importance in order to restructure the airlines operating in a context of market globalization and growing international competition. Politically though, the aviation sector has ever since been a sensitive issue, regarded as an instrument of foreign policy, national defense and national prestige. The future of the Open Skies has thus has been a topic of heated debate, not only in the scientific arena but as well in political and business circles. Particularly in view of the economic leverage of the EU and US aviation market, the decision about the future of the Open Skies agreements is likely to have a major impact on the way the international aviation industry will develop in the next decades. [...]
Table of Contents
1. The Chicago Convention of 1944: The foundations of international civil aviation
1.1. The doctrine of airspace sovereignty and bilateralism
1.2. Exceptions to the doctrine of airspace sovereignty: The five freedoms of the air
1.2.1. The doctrine of cabotage
1.2.2. The doctrine of nationality
1.3. The International Civil Aviation Organization
1.4. Evaluating the outcomes of the Chicago Convention
2. Beyond the Chicago Convention
2.1. The practical application of the Chicago Convention : Bermuda I and II
2.2. The emergence of the Open Skies policy
2.3. The Structure of the Open Skies agreements
3. The emergence of the Common European aviation market
3.1. The role of the European Commission in the air transport agreements with third countries
3.2. The impact of the ECJ Judgement of 5th Nov. 2002 on the Open Skies agreements
3.3. Developing a common EU approach towards Open Skies
3.3.1. The dilemma of the Member States
3.3.2. A new role for the European Commission- Pro´s and Con´s for a Commission negotiation mandate
4. Approaches for reconceptualizing the air transport regime between the European Union and the United States
4.1. A Transatlantic Common Aviation Area versus a multilateral Open Skies agreement
4.1.1. Selected economic aspects of a TCAA
4.1.2. The failure of a first step agreement
4.2. The tentative accord of November 2005
4.3. Future scenarios
4.4. Including international aviation in the General Agreement on Trade in Services (GATS): Alternative, supplement or unrealistic vision?
Research Objectives and Core Themes
This thesis examines the legal and economic complexities of reforming transatlantic air transport, specifically focusing on the shift from bilateral "Open Skies" agreements to a unified EU-US aviation regime. It aims to evaluate the obstacles to liberalization, the institutional role of the European Commission following the 2002 European Court of Justice (ECJ) ruling, and the potential for a Transatlantic Common Aviation Area (TCAA).
- The historical legacy of the 1944 Chicago Convention and its impact on modern aviation regulation.
- The legal conflict between national bilateral aviation agreements and the EU's internal single market.
- The economic and political dynamics driving US and EU negotiation positions.
- The potential for integrating international aviation into the General Agreement on Trade in Services (GATS).
Excerpt from the Book
1.1. The doctrine of airspace sovereignty and bilateralism
The Chicago Convention was another attempt to come up with a stable multilateral agreement. It replaced the former agreements, taking over their doctrine of airspace sovereignty, namely “that each state has complete and exclusive sovereignty over the airspace above its territory”, meaning that any civil aircraft flying into or across another state’s airspace, taking or picking up passengers or cargo on the territory of another state, needed special permission (Art. 1–5 Chicago Convention)4. The doctrine of airspace sovereignty, that nowadays belongs to customary international law, can be traced back as far as to the Roman axiom cujus est solum, ejus est usque ad coelum et ad inferos5.
Yet the adoption of the doctrine of airspace sovereignty was less a historical reference, but more a matter of national security: World War I had highlighted the military importance of aviation and political leaders were conscious about their nations’ air power6. Governments also wanted to prevent unauthorised photographing of military installations. Moreover, in international negotiations “air space has been seen as a valuable national asset, access to which can be traded for similar reciprocal benefits or even benefits in areas outside aviation.”7
Another important aspect of the doctrine of airspace sovereignty had to do with unequal developments of the civil aviation sector: Whereas in the US private airlines were already existing since the privatisation of the airmail in 19258, on the European continent the airlines were still state-owned. In addition, the US airline construction sector was booming since Lindbergh’s first transatlantic flight succeeded in 19279. Besides, “the United States recognize[d] that much of its military fleet would soon be converted to commercial use [...], which would allow US carriers to capitalize on their impending competitive advantage.”10
Summary of Chapters
1. The Chicago Convention of 1944: The foundations of international civil aviation: This chapter analyzes the historical origins of international aviation law, focusing on the doctrine of airspace sovereignty and how it established the foundational framework for bilateral air service agreements.
2. Beyond the Chicago Convention: This chapter traces the evolution of aviation policy from the Bermuda I and II agreements to the rise of the US "Open Skies" policy, highlighting the transition toward market-oriented liberalization.
3. The emergence of the Common European aviation market: This chapter explores the EU's internal liberalization process and the resulting legal conflict with existing bilateral agreements between Member States and third countries, specifically addressing the 2002 ECJ landmark ruling.
4. Approaches for reconceptualizing the air transport regime between the European Union and the United States: This chapter evaluates potential future models for transatlantic aviation, including the Transatlantic Common Aviation Area (TCAA) and the complexities of integrating aviation into GATS.
Keywords
Open Skies, Chicago Convention, Airspace Sovereignty, European Commission, ECJ Judgment, Bilateralism, Transatlantic Common Aviation Area, TCAA, Liberalization, Aviation Law, International Air Transport, GATS, Airline Alliances, Nationality Clause, Cabotage.
Frequently Asked Questions
What is the primary focus of this thesis?
The thesis explores the evolution, legal challenges, and economic implications of international air transport agreements, specifically examining the transition from fragmented bilateral "Open Skies" deals to a potential unified transatlantic framework.
What are the core thematic areas discussed?
The work covers the history of aviation regulation (Chicago Convention), the conflict between EU single market laws and bilateral agreements, the legal impact of the 2002 ECJ ruling, and the strategic negotiation landscape between the US and the EU.
What is the central research question?
The research evaluates the difficulties of reforming transatlantic civil aviation and analyzes potential future scenarios for the "Open Skies" agreements, given the conflicting interests of the EU and the US.
Which scientific methodology is employed?
The study utilizes a legal and economic analysis, incorporating historical policy reviews, an examination of court case law (specifically ECJ rulings), and expert interview insights to assess recent developments.
What is covered in the main body of the work?
The main body examines the foundations of international civil aviation, the emergence of the EU common market, the impact of ECJ judgments on Member State negotiations, and the debate surrounding the Transatlantic Common Aviation Area (TCAA).
How would you define the key terms characterizing this work?
The work is defined by terms such as "Airspace Sovereignty," "Bilateralism," "ECJ Judgment," and "Liberalization," which collectively describe the transition from restrictive national frameworks to more globalized market structures.
Why was the 2002 ECJ judgment so critical for the aviation industry?
The judgment declared that existing "Open Skies" agreements between individual EU Member States and the US infringed upon EU law, mandating a shift in competence and requiring a collective approach to negotiations.
What role does the US "Fly America" policy play in the negotiations?
The "Fly America" policy requires US government-funded travel to be conducted on US carriers, a protectionist measure that the EU Commission sought to eliminate to ensure fair competition within a proposed TCAA.
Why is the "ownership and control" clause considered a major obstacle?
The clause restricts foreign investment in airlines. Liberalizing this rule would allow for greater cross-border consolidation, but the US views its maintenance as essential for national security and its Civil Reserve Air Fleet (CRAF) program.
- Quote paper
- Joanna Mastalerek (Author), 2006, The Future of the Open Skies Agreements after the ECJ judgements - Legal and Economic Aspects, Munich, GRIN Verlag, https://www.grin.com/document/58623
