Written by practitioners and academics with specialised expertise in the field, the Occasional Papers are peer-reviewed research papers on a variety of emerging issues and trends in air and space law.
The Centre for Research in Air and Space Law was set up in 1976 with the aim of becoming the world's foremost research centre on issues related to air and space law. Throughout its existence, the Centre has organised numerous events and brought out dozens of publications to highlight issues of concern and foreshadow trends in the field of aviation and activities in outer space.
The Annals of Air and Space Law, published annually, was inaugurated 40 years ago as a platform for the dissemination of academic knowledge and exchange. In recent years, the Centre began a Monograph Series with the intent of publishing collected and peer-reviewed works and expert opinions from conferences held around the world.
In this fast-changing area law, where technology and applications are rapidly developing and often outpace existing rules and policies, it is apt that there be a platform for disseminating quality research papers by subject-matter experts and scholars on matters of immediate interest to the field.
The authors are exclusively responsible for the contents of this paper as well as propriety of any material used therein.
Occasional Paper XX: The Missing Link in the Global Aviation Safety and Security Network: The Case of Taiwan
by Ram S. Jakhu and Kuan-Wei Chen
Situated at the crossroads of Asia, Taiwan is an important node and link in the global aviation network. With millions of flights, passengers and tonnes of high-value cargo destined for, originating from or transiting through the Taipei Flight Information Region annually, it is only logical that all aspects of aviation, from the provision of air navigation services to the proper conduct of security screening and design of airports, be in line with international standards and practices. This is not only in the interest of the global flying public, but will ensure the seamless, safe and secure governance of aviation, which is vital to the world's connectivity and economy. In the run up to the 39th ICAO Assembly, this paper argues that for the interest of global aviation safety and security, Taiwan should be granted means to meaningfully participate in and contribute to the activities of ICAO.
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Occasional Paper XIX: What does Philosophy do for Space Jurisprudence and Implementing Space Law? Secular Humanism and Space Migration Essential for Survival of Humankind Species and its “Essence”
by George S. Robinson
The ensuing discussion addresses two major components both of domestic and international practices of law relating to outer space activities: (1) The failure of a large number both of academic and practicing space lawyers to premise their negotiations and agreements on a thorough understanding of the underlying dictates of space jurisprudence, or the philosophical dictates of space law, finding its roots in traditional Natural Law Theory; and (2) the time critical, imperative dictate of humankind space migration, dispersal, and off-Earth habitation essential for the survival and evolution of the species and that of its unfolding “essence(s).”
The discussion also addresses the historical evolution of the characteristics of philosophy as a scientific methodology, and places the evolving empirically-premised conclusions within the context of interdependent principles and methodologies of secularism and humanism. The discussion further addresses the immediate influence of space jurisprudence and implementing legal positivisms on the enhancement, evolution, and survivability…or extinction…of humankind and its ever elusive “essence(s)” deriving from the first life-forms based on biochemical and biophysical dictates. In this context, the evolving understanding of the psychoneurophysiology of “sentience” and “essence” is examined. The discussion is concluded with a recognition of an impelling need to amend rather radically the current bodies of domestic and international space law as critical components addressing the survival and adaptive evolutionary characteristics necessary for survival of Homo sapiens sapiens, of modern humans, and the unfolding empirically based understanding of the biotechnologically integrated species and its evolving “essence.”
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Occasional Paper XVIII is part of the Occasional Paper Series on Sustainable International Civil Aviation,
Sustainable Tourism and the Impact of Climate Change on the Caribbean.
Occasional Paper XVII: Aviation Manufacturer Held Subject to State Law Standards in US Products Liability Action
by Justin T Green
On 18 April 2016, the United States Court of Appeals for the Third Circuit handed down Sikkelee v. Precision Airmotive Corp., et al., which held that US federal law does not impliedly preempt the field of aviation products safety. The decision is remarkable because in 1999 the Third Circuit broadly declared that the entire field of aviation safety was preempted in Abdullah v. American Airlines, Inc.
The Sikkelee court found that the federal regulations regarding aviation products design did not evidence congressional intent to preempt state law products liability claims. The Court saw a distinct difference between the federal regulations governing aircraft operation, which included both specific requirements and a general standard of care, and the regulations governing products safety, which did not include a general standard of care. The Court further found that the Federal Aviation Administration (FAA)’s certification of an aviation product as complying with federal standards did not prohibit a plaintiff from attempting to prove that the product was nevertheless unsafe under state products liability laws. The Court held that ordinary conflict preemption would govern whether specific requirements in federal regulations or in FAA certification documents would preempt state products liability standards.
Sikkelee signals the end to expansive federal preemption rulings in aviation cases and reduces the potential that federal preemption may result in a reduction of aviation safety standards because it ensures that any gaps in the federal standards will be filled by state law. It also means that aviation products manufacturers are exposed to products liability laws of the fifty states, five territories and one district that comprise the US, and that US juries will continue to have the final say on whether an aviation product is safe.
The US Supreme Court has yet to rule on whether federal standards preempt state law. There are considerable differences of opinion among the federal courts on whether the US Congress intended to preempt the field of aviation safety and it is time for the Supreme Court to weigh in on the vitally important issue.
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Occasional Paper Series: Sustainable International Civil Aviation
No. III-XVI and No. XVIII
The Sustainable International Civil Aviation Occasional Papers have been prepared by a group of scholars associated with the Institute of Air and Space Law (IASL) at McGill University. They are the result of a collaborative effort between the IASL and the Centre for International Sustainable Development Law (CISDL) and are designed to be part of a book prepared by authors from both groups which will eventually be published by the Cambridge University Press under the title Sustainable International Civil Aviation.
At the next ICAO Assembly in September-October of 2016, ICAO has the ambitious mandate to finalise a global scheme to limit CO2 emissions from international aviation. As many of the articles contained in the book are of immediate relevance to the discussions due to take place at ICAO, publishing and disseminating these draft chapters will contribute to the growing interest and debates on the issue of the environmental impact of aviation. It is hoped that these papers will contribute to the work of the Assembly and that informed readers and delegates participating at the ICAO Assembly will have constructive comments to share with the authors.
>> To find out more and to read the Occasional Paper Series on Sustainable International Civil Aviation.
Occasional Paper No. II: L’envol des drones civils: Appréhension par le droit français d’une pratique émergente
par Laurent Archambault et Alicia Mâzouz
En 2012, la France a pris la mesure du développement exponentiel du marché des drones et de la multiplication de leurs usages. Deux arrêtés ont ainsi permis de définir les premiers contours d’un encadrement nécessaire à ce développement. Depuis, le marché continue de se développer sensiblement, aussi bien s’agissant des usages récréatifs que professionnels de drones. Cependant, les règles posées par les arrêtés du 11 avril 2012, bien que nécessaires, présentent aujourd’hui d’incontestables limites. Certains encadrements envisagés doivent être réévalués tandis que d’autres, dans le silence des textes, doivent être précisément définis. Aussi, il paraît opportun de dresser un état des lieux du droit applicable en France, afin de mieux mesurer les évolutions nécessaires. La présente étude juridique a finalement pour souhait d’esquisser des pistes de réflexion à partir du droit français tout en espérant nourrir, au-delà même du droit interne, l’analyse du droit applicable aux drones civils.
In 2012, France comprehensively assessed the exponential development of drones market and of the multiplication of their uses. Two decrees were enacted, drawing the first outlines of a necessary framework to this development. Since then, the market continues to grow significantly, with respect to both recreational and professional uses. Nevertheless, the rules laid down by the decrees of 11 April 2012, although necessary, now clearly show their limits. Some of these rules must be reassessed, whereas others, in the silence of the texts, must be precisely defined. Therefore, in order to better assess the extent of the necessary changes to make these rules evolve, it seems useful to examine the current state of the applicable law in France. This legal study aspires to draw avenues of reflection based on the French regulation, and to nourish, beyond the limits of France’s national law, a global analysis of the law applicable to civil drones.
Occasional Paper No. I: Unravelling Open Skies
by Allan I. Mendelsohn
In this paper, the author discusses the three very controversial international aviation issues that are currently confronting the United States (US) Government: (1) whether Norwegian Air International (NAI) is a "flag of convenience" (or a "corporate inversion") whose pending application to operate services to and from the US should, therefore, be denied; (2) whether, apart from the issues being debated in the pending US Government investigation into whether the Middle East carriers are otherwise subsidised, the fact that they pay no taxes to their governments and are subject to no labour law requirements alone constitute subsidisation; and (3) whether the reduced financing arrangements provided by the US Export-Import Bank (and other export credit agencies around the world) to the Middle East carriers facilitating their purchase of wide body jets constitute still another subsidy that should be prohibited. The author replies to all of these questions with a resounding "Yes".