The Legal Side of COVID-19 on the Aviation Industry
In March of this year, the WHO and ICAO issued a joint statement containing updated recommendations on COVID-19 and civil aviation. This document reaffirms the commitment of these specialized UN agencies to expand international cooperation to curb the spread of the virus and protect the health of passengers. The statement notes the importance of States complying with ICAO and WHO standards related to the prevention of the spread of infectious diseases and the International Health Regulations (Reed para. 3-5). ICAO has issued two e-newsletters and one letter to member-states urging states-member to abide WHO recommendations and instructions. The ICAO letter to member states explicitly calls governments to implement the relevant provisions of Appendix 9 to the Convention on International Civil Aviation (Chicago Convention), apply for CAPSCA membership, increase funding for outbreak response and establish a national air traffic facilitation transportation committee. However, simplification of formalities does not mean restriction of the legal rights of passengers which in fact is introduced around the world.
At the same time, according to the ICAO report, in the first quarter of 2020, global airline revenues will fall by 4-5 billion US dollars (COVID-19 Cuts Demand and Revenues). Airlines are among the most affected players in the global market - they are losing billions of dollars in tourism downturns and falling demand for tickets. The current situation can be assessed as unprecedented for civil aviation.
According to EU laws, airlines must use 80% of the slots allocated to them at airports, otherwise they risk losing them. For about a month, British carriers are forced to fly with planes almost empty due to coronavirus (with less than 40% load; this is ghost flights), so as not to lose their landing, parking and take-off slots at European airports (Reed para. 6). Lufthansa and KLM are forcing employees to take vacation, to reduce costs associated with coronavirus (Reed para. 8). British airline Flybe, which is Europe's largest regional airline, went bankrupt, despite authorities trying to support it (Slotnick para. 6-7). The largest US carriers, due to losses from restrictions imposed in the fight against the coronavirus epidemic, have already asked for immediate financial assistance to protect 11 million workers in the industry (Effects of Novel Coronavirus). In turn, the U.S. Treasury Department claims that due the spread of coronavirus, U.S. airlines appeared in a worse situation than the one that developed after the September 11, 2001 attacks (Effects of Novel Coronavirus). The extent of distribution of Covid-19 has almost no precedent. Over two months, the prospects for the development of the aviation industry worldwide have deteriorated sharply. It is not clear how the virus will develop further, but one can see its impact on the market. The loss of income in $63 billion or $133 billion is a crisis - IATA indicates (COVID-19 Cuts Demand and Revenues). The reduction in air travel will cause the global airport industry to lose more than $76 billion. This is about 45% of the $172 billion in revenues that airports were supposed to receive in 2020 (Effects of Novel Coronavirus). It is also noted that the recovery of the aviation industry can take from a year up to 18 months, and passenger traffic around the world may not recover to the pre-coronavirus level until the end of 2021 (Effects of Novel Coronavirus). The current situation threatens a widespread socio-economic crisis.
Governments of the countries, including the Persian Gulf countries, are making efforts to limit the spread of the epidemic, based mainly on the so-called “common sense” policy, because such precedents in the airline industry have not been observed before, and there are no clear legal norms that determine the necessary actions of regulators. In view of this, some actions of governments may seem excessive. For example, on March 24, 2020, the UAE government decided to temporarily close the Abu Dhabi airport, suspending flights to and from Abu Dhabi, as well as transit. In this situation, it seems imperative to analyze the legal aspect of the situation and try to suggest a possible vector and algorithm of actions.
Observing how the spread of COVID-19 affects aviation, one can conclude that the aviation regulations were not developed in the light of such extreme circumstances. We are witnessing an almost complete cessation of international aviation traffic around the world. However, it is obvious that health officials and doctors fear a real pandemic, which could also plunge the global economy into recession. All this leads to travel restrictions and other repressive measures, often illogical, belated and violating basic human rights. Meanwhile, restrictions on the rights and freedoms of man and citizen are permissible only provided that such restriction is proportional, and any interference with human rights, even if there is a legitimate aim, contrary to the requirement of proportionality, will certainly cause a restriction of rights and freedoms of person.
On May 28, 1999 in Montreal, plenipotentiaries of 52 states at ICAO headquarters signed the Convention for the Unification of Certain Rules of International Air Transport, which immediately became known in the professional environment as the 1999 Montreal Convention. Moreover, for the states participating in the Montreal Convention, its norms, rules and regulations shall prevail over any norms, rules and regulations of other legal systems of international air law (Article 55). Article 49 attests to the imperative status of the Convention, its provisions, norms and rules. Any derogations from the provisions of the Convention, even those recorded in the contract of carriage or special agreements, are invalid. The rules of the Convention cannot be changed either by determining the applicable law or by changing the rules of jurisdiction.
In the emergency cases, there is the right of carrier to cancel or delay the flight without notice to the passenger, as well as cancel the reservation which was previously confirmed, but must offer an alternative - another flight or refund (Tompkins 74). According to aviation regulations, extraordinary circumstances are circumstances that lead to a long delay or cancellation of one or more flights, even if the relevant carrier has taken all measures to prevent such delay or cancellation (COVID-19). The virus itself is not an extraordinary circumstance, but the decisions of the authorities that are related to the virus, for example, the decision of the Italian authorities to quarantine the entire territory of the country, can be recognized as such a circumstance. However, the airline is not obligated to pay the compensation provided for by the Montreal Convention if it can provide evidence that the reason for the cancellation of the flight was an emergency (Nemsick and Passeri para, 8-12). That is, due to the decision of the authorities, namely the announcement of quarantine throughout Italy in the framework of countering the COVID-19 virus, air carriers have the right to cancel flights with an alternative to passengers or a refund for a ticket.
Many airlines have already changed the rules for exchanging and returning tickets - they remove fines, apply vouchers, and also offer certain conditions for returning tickets or rebooking. Nevertheless, such cases are often attempted to be regarded as the occurrence of force majeure circumstances, but one nuance must be taken into account: force majeure makes fulfillment of obligations impossible in principle, regardless of the efforts and material costs that the party incurred or could incur. This does not apply to cases where a party can objectively fulfill the terms of the agreement, however, given changes in circumstances, such a performance loses all meaning for it - when airlines cancel flights due to insufficient loading of aircraft or because of an internal decision to take security measures for employees in connection with the virus. However, it is important to consider the agreement between the company and the passenger, which may not provide for a refund in case of force majeure.
At the same time, the Montreal Convention covers any contract of air carriage under one of the two basic conditions (paragraph 2 of Article 1) (Tompkins 36-42):
- The point of departure and destination are located on the territory of two states, of which both are parties to the Montreal Convention;
- The point of departure and destination are located on the territory of the same state party to the Convention, but the stop stipulated by the agreement (a break in traffic, connection) is located on the territory of another state, which may not participate in the Convention.
Thus, there are objective conditions that exempt airlines from legal and financial liability for failure to fulfill a certain part of their obligations to the passenger. In this case, everything depends on the level of ethics policy and CSR of the airline. However, the problem of restricting the rights of passengers to air transportation is no less a serious problem, and one can even call it a much more serious and controversial one.
International human rights norms oblige states to take measures for prevention threats to public health. International human rights standards also provide that in situations of serious threats to public health and emergency situations that threaten the life of a nation, restrictions on certain rights and freedoms are permissible, if such restrictions are introduced in a legitimate way, if they are absolutely necessary and scientifically substantiated, as well as if their application is not arbitrary or discriminatory and limited in time, if human dignity is observed. In addition, such restrictions are subject to control and are proportionate to the goal pursued.
The scale and severity of the COVID-19 pandemic certainly reaches a level of threat to public health that can justify the restriction of certain rights and freedoms. However, any restrictions on rights and freedoms within the framework of measures taken to protect the population should be legal, necessary, and proportionate (United Nations Human Rights). The state of emergency should be limited in time, and any restrictions on rights and freedoms should take into account the disproportionate consequences for certain categories of the population and marginalized groups. Syracuse principles explicitly state that the restrictions imposed at least (Silva and Smith para. 3-4):
- Must be prescribed by law and implemented in accordance with the law;
- Must pursue a legitimate aim that meets an urgent social need;
- Must be strictly necessary in a democratic society to achieve such a goal;
- Must ensure the achievement of such a goal with minimal infringements and restrictions;
- Should be based on scientific facts, and the application of restrictive measures should not be arbitrary or discriminatory;
- Must be time limited in time, respect human dignity, and be subject to verification.
Thus, restrictions, such as mandatory quarantine or isolation of people with characteristic symptoms, should at least be prescribed by law. They should be strictly necessary to achieve a legitimate goal, should be based on scientific facts, be proportionate to the desired goal, should be limited in time and should be monitored, and their application should not be arbitrary or discriminatory and should enable respect for human dignity.
Full quarantine and termination of work of enterprises and organizations, unlimited in time, as a rule, do not meet these criteria and are often introduced in a hurry without providing protection for those who are in quarantine, especially risk groups. Since it is difficult to ensure uniform application of standards when introducing and maintaining such quarantine measures and closing enterprises, their implementation is often arbitrary or discriminatory. This is exactly what happened in the field of air transportation - the closure of airports and deprivation of citizens with suspected coronavirus the right to use the services of air carriers. In addition, this caused a serious blow to airlines, provoking uncompensated losses not only from falling demand for air travel, but also claims for compensation, lawsuits, etc.
International human rights, in general, imply freedom of movement and enable everyone to leave any country and enter a country of citizenship. Restrictions on freedom of movement are permissible only if they are prescribed by law, pursue a legitimate goal and are proportionate to its achievement, including in terms of the consequences of their introduction. Restrictions on travel and freedom of movement should not be discriminatory.
International law recognizes the state’s broad powers to close borders for individuals and migrants. However, national and international travel prohibitions have historically shown limited effectiveness in controlling the spread of infections, and in reality can even contribute to their spread when people try to get out of the quarantine zone before it is introduced (Tompkins 69). Here one can draw an analogy with a sharp tightening of the US migration policy, which ultimately led to an increase in illegal migration and criminalization of this sphere, and, consequently, to an increase in crime among immigrants, since in this case the legal “screening” of the dysfunctional marginalized contingent does not work. Accordingly, the prohibition on official air travel may lead to a ‘shadowing’ of this segment and an even wider spread of the epidemic. While restrictions on civilian flights amid the proliferation of the new coronavirus are becoming global and almost total, companies that provide private aviation services report a sharp increase in interest in their service. Thus, Paramount Business Jets, a US-based company, the growth in the number of requests for charter flights ranged from 100 to 300% depending on the region” - an individual plane is needed both by “standard” clients of private airlines - officials, representatives of the show-business, sports teams and businessmen - and those who usually fly first or business-class commercial flights (Gollan para. 2-8). At the same time, it is obvious that operators of private aircraft in this situation find various loopholes that are closed to large carriers. Passengers use private terminals located far from the terminals for commercial airlines, and do not pass control points; perhaps they even bypass temperature measuring points. Thus, one can say that there is a kind of “Laffer curve” in the air transportation industry - the more the state “tightens the screws,” the more ‘shadowing’ of passenger air transportation occurs. However, unlike the action of the Laffer curve in the economy, in the case of coronavirus, the consequences can be destructive not only for the economy, but also for public health and even national security.
Potential Measures to Overcome the Crisis
Obviously, the current situation requires the adoption of immediate response measures and coordinated efforts of the world community, as well as the widespread use of public-private partnership opportunities. States should refrain from total and excessively broad restrictions on freedom of movement and personal freedom and resort to generally binding restrictions only when it is scientifically justified and necessary, and when mechanisms can be in place to support the affected population, including ensuring unhindered return to own country. For the Gulf countries, and in particular Saudi Arabia, an indefinite in time prohibition on flights to Iran is unlikely to protect the Gulf countries from the spread of the epidemic, for the above reasons. Despite the fact that, according to Saudi aviation law, “provisions of, and annexes to, the Chicago Convention and all other international treaties on civil aviation to which the Kingdom is party shall be deemed supplements to this Law” (Civil Aviation Law of Saudi Arabia, Art. 4, para. 1), in the situation of international crisis, it seems expedient to recognize the supremacy of international legislation in the field. Forced staying abroad is unlikely to protect a citizen from the disease COVID-19 - rather, on the contrary, it puts him/her at even greater risk and, accordingly, increases the national risk on his/her return, since having been ill, he may be a carrier of the virus, which also may have a mutated form, while returning home in time, he/she could avoid infection.
It seems appropriate to adhere to the usual practices recommended in the field of international and domestic passenger air transportation. A passenger whose physical condition is causing concern to the air carrier should be allowed on the plane if he provides a medical certificate stating that his physical condition allows him to travel by air, and that his illness does not pose a danger to others. However, most airlines should require not just a usual medical certificate, but MEDIF (Medical Information Sheet). The air carrier must be entitled to refuse air transportation at any stage, cancel the reservation or remove the passenger from the aircraft, if the mental or physical condition of the passenger gives reason to believe that he needs special assistance from the air carrier, for which there was no corresponding request or which the air carrier cannot provide for objective reasons, if the passenger’s condition may cause discomfort to other passengers, lead to any risks for him or other passengers or ownership of air carrier’ passengers. This is more likely to promote cooperation and inspire public confidence than coercive measures, and is more likely to minimize attempts to avoid contact with the healthcare system. It would also increase public confidence in the authorities, reduce panic, and enable greater control for the epidemiological situation and the prevention of bankruptcy of airlines.