1.1 Background to the Study
The topic of this research is “Legal framework for the resolution of aviation dispute.”
Aviation is basically a transnational and border-crossing phenomenon, without which globalization (the flow of people and goods and the mixing of cultures) would have been difficult and the awareness that we all live on one planet could not have been established. The difference between this awareness and the ancient organizational principle of humans, the principle of national sovereignty is not completely clear. A group of people (a nation) live on a particular part of the earth (the national territory) and claim that this area is for them, and exercise legal power (government) over this area. This principle is known as „Sovereignty of Nations‟ or „Self-Determination of the Peoples‟ and is based on the notion that human beings are organized into groups or communities that have settled, but that such settlement is the reason why they claim exclusiveness of all powers for themselves on that part of the earth area which they occupied.
This ancient organizational principle results to the point that although there are so-called areas of international sovereignty in the world, that is, areas that are not claimed by anyone like the high seas, there are no areas in the air space that are considered „mutual property for all of mankind‟. This notable principle in customary international law is known as „the principle of territorial sovereignty‟ was confirmed in the Paris Convention of 1919 and reiterated in the Chicago Convention of 1944 and it gives each state to the exclusion of all others, a unilateral and absolute right to permit or deny entry into its territory and to control all movements therein. According to Milde, this principle is “a cornerstone of international air law and … declaratory of general international law.” Specifically, this state authority (also referred to as „national interest‟ principle) precludes the operation of scheduled international air services over or into the territory of a state without its permission or special authorization. Moreover, such authorization is required for state aircraft , pilotless aircraft , and aircraft carrying munitions , with an exception carved out for a restricted freedom of civil, non-scheduled flights8.
Consequently, before an airline can operate international air service to another country, the government must first negotiate with the destination country‟s government. International air services between countries operate under the terms of a bilateral air service agreement (BASA) negotiated between the two countries. These agreements are generally of treaty status and are enforceable in international law (although some operate under, or are modified by, a less formal Memorandum of Understanding arrangement). They are instruments used by countries to establish international air link between them and ensure that countries collectively maximize their potential in International Air Transport or the Aviation Sector. The agreement would cover such items as: i.)Traffic Rights (also known as Freedoms of the Air) – which are a standard set of nine distinct air rights over which the two countries will negotiate. For example, the first freedom of the air is the right to overfly the territory of a country without landing there. ii.) Authorized Points- which are the allowable routes that could be operated. iii.) Capacity- which is the number of flights or seats that could be operated between the two countries. iv.) Tariff (pricing) – which is the method for setting fares on the route. Some agreements require airlines to submit ticket prices to aeronautical authorities for approval while others allow the airlines to set prices without restriction. v.) Designation, Ownership and Control- which is the number of airlines the bilateral partners can nominate to operate the services and the ownership criteria airlines must meet to be designated under the bilateral agreement. This clause sometimes includes foreign ownership restrictions. vi.) Many other clauses which addresses competition policy, safety and security measures to be taken, operative arrangements (e.g., code-sharing) and various “doing business” issues such as repatriation of currencies, the ability to select handling agents at foreign airports, the use of computer reservations systems, etc.




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