Air and Space Law Commons^™

Air Strikes In Myanmar - An Analysis Under International Law, Jacob Davis

Journal of Air Law and Commerce

Since the Russian invasion of Ukraine in 2022, and the reignited Israel-Palestine conflict in 2023, international law regulating the use of air power has been put to the test. The use of air strikes in civilian areas has put this shortcoming at the forefront of conversation about the use of force, and what constitutes a war crime in modern conflict.

This conversation has centered around the two aforementioned conflicts but has left other international disputes out of the discussion. In particular the civil war in Myanmar, a bloody conflict which follows decades of ethnic violence, political stratification, and a successful …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Fake Parts, Real Threats: Combating The Infiltration Of Counterfeit Parts In The Aviation Industry, Jennifer Su

Journal of Air Law and Commerce

This Comment addresses the historic and current-day issue of counterfeit aircraft parts in the aviation industry. Counterfeit parts—also known as fake parts, bogus parts, unapproved parts, and suspected unapproved parts (SUPs)—are any parts that do not conform to the U.S. Federal Aviation Administration’s (FAA) standards and regulations. Given the lackluster availability of public information and coverage over the issue, this Comment aims to bring more attention to the very real threat of fake aircraft parts.

From the beginning of U.S. commercial aviation and the creation of regulations governing aircraft designs and parts, counterfeit parts have plagued the aviation industry. Although …

Tort Claims Arising From Military Aircraft Crashes Are Not Preempted By The Federal Aviation Act, Timothy A. Loranger, Crawford Appleby

Journal of Air Law and Commerce

The Second Circuit's landmark ruling in Jones v. Goodrich Pump & Engine Control Sys., Inc. establishes crucial precedent by asserting that tort claims stemming from military aircraft crashes are not field or conflict preempted by the Federal Aviation Act (the Act). This decision, the first of its kind at the appellate level, carries far-reaching implications. The court’s rationale, grounded in the Act’s plain language, emphasizes that “public aircraft,” including military ones, are exempt from Federal Aviation Administration regulation. Title 49, section 44701(a)(1), explicitly excludes public aircraft from the Act’s purview. While the court’s analysis relies on the Act’s text, it …

Space Mining, Isabelle M. Thibault

Journal of Air Law and Commerce

The Outer Space Treaty, the leading source of law for activities in space, has laid out various limitations and regulations regarding actions in space and how space can be used. One of these limitations is commonly referred to as the “non-appropriation principle.” The non-appropriation principle prohibits nations from making claims of sovereignty over celestial bodies in space. This presents a problem as the space industry continues to progress because it causes uncertainty regarding the meaning of appropriation, what is classified as a celestial body, what acts are allowed, and who specifically is prohibited from acting. This Comment identifies these problems …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Unlawful Seizure: The Legal Implications Of Russia’S Re-Registration Of Leased Aircraft, Matthew Ormsbee

Journal of Air Law and Commerce

During the Russian invasion of Ukraine, Russia passed a law allowing its domestic airlines to reregister foreign-owned aircraft on the Russian aircraft registry. This law raises important questions about dual registration—forbidden under international law—since the prior foreign aviation authorities had not consented to the deregistration of the subject aircraft. Even as lessors revoked airworthiness certificates, Russia re-registered more than 350 leased aircraft. The most significant problem in civil aviation today is Russia’s re-registration law, which undermines predictability, order, and safety. This essay argues that Russia passed its registration law because its war left it with few other options. This does …

Navigating Passenger Compensation: Implications For Airlines And Consumers, Noor Ain

Journal of Air Law and Commerce

Amid winter’s icy grip, as frigid December storms swept across the nation, a distressing scenario unfolded for countless airline passengers. In the realm of air travel, a ticket represents more than just a mere document. It embodies a contract, a covenant between passengers and airline companies. It symbolizes an agreement made by airlines—a commitment to delivering timely and uninterrupted travel experiences. Following the pandemic, which brought about technological failures, system outages, and staffing shortages, many travelers found themselves stranded due to prolonged flight delays or cancellations. Currently, the absence of viable options for passengers to seek recompense in the form …

The Eu-Asean Comprehensive Air Transport Agreement (2022): From Regional To Inter-Regional To Global?, Jae Woon Lee, Antigoni Lykotrafiti, Máté Gergely

Journal of Air Law and Commerce

The EU-ASEAN Comprehensive Air Transport Agreement (CATA) is the latest example of the EU’s effort to set a “global benchmark” in the regulation of international air transport. The EU-ASEAN CATA is an exceptional ASA for its geographic coverage, liberalizing impact, and expanded substantive scope. As the first-ever bloc-to-bloc ATA with 27 EU member states and 10 ASEAN member states respectively and a combined population of 1.1 billion, the EU-ASEAN CATA will make a significant impact not only on stakeholders in the EU and ASEAN, but furthermore on the rest of the world. The article aims to thoroughly examine the landmark …

Preempting The Buzz: Challenges For State And Local Regulation Of Drone Noise, Daniel Friedenzohn, Trevor Simoneau

Journal of Air Law and Commerce

From carrying life-saving medical supplies to delivering Amazon packages, drones are increasingly playing a more significant role in our society. Such operations, however, raise a variety of legal and public policy questions, all requiring answers before drone deliveries become commonplace in the package delivery ecosystem. One legal issue that remains significantly underexplored is the challenge of regulating drone noise. This issue raises vital questions of federalism and preemption in the broader debate over federal versus state and local power to govern different aspects of civilian drone operations.

Even though the noise generated by drones is much quieter than other types …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Asset-Based Financing For Space Activities, Francesca Giannoni-Crystal

Journal of Air Law and Commerce

The space industry—whose numbers are already substantial—has undeniable potential for further growth. However, because it no longer consists of only multibillion-dollar companies, the industry needs access to traditional financing. Venture capital alone is insufficient. This Article discusses some difficulties for the space industry’s access to traditional—and especially asset-based—financing. Some are common to all space activities, while some exist only for novel space activities. These difficulties cover a broad range of legal, regulatory, and factual issues (including insurance). While the problems are difficult, ideas to solve them are plentiful, a number of which the paper discusses. The paper also presents ways …

Route Competition In Hong Kong's Aviation Industry, Yizhang Qiu, Sinchit Lai

Journal of Air Law and Commerce

Open sky policies have been implemented for decades, giving birth to many airline newcomers from diverse backgrounds lifting off into liberalized skies. EasyJet, Ryanair, Wizz Air, and Southwest Airlines are examples of independent budget airlines, branding the outcome of aviation liberalization and contributing to interoute competition through their networks. However, Hong Kong International Airport, which aspires to be a better and greater air hub, is crowded with local carriers, and the airport flight timetables rarely show the presence of non-local budget airlines or competing routes. This Article examines the importance of interoute competition and the role that budget airlines play …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

The Case Law Of The Court Of Justice Of The Eu On Art. 17 Of The 1999 Montreal Convention: An Evaluation From A Comparative Perspective, Michael Chatzipanagiotis

Journal of Air Law and Commerce

This paper analyzes the case law of the Court of Justice of the European Union (CJEU) on Article 17(1) of the 1999 Montreal Convention (MC99) regarding the liability of international air carriers for death or bodily injury to passengers. The interpretational principles and methods applied by the CJEU are examined, accounting also for the particularities of the EU legal order. Furthermore, the results reached by the CJEU are compared with the case law of other jurisdictions, mainly the US, and doctrinal writings. Nonetheless, this paper does not explore the pertinent issues from a de lege ferenda perspective.

The paper concludes …

Treaties Establishing Icao And Imo – A Comparative Study, Ruwantissa Indranath Abeyratne

Journal of Air Law and Commerce

The comparison between air law and maritime law reveals both similarities and distinctions rooted in the unique frameworks of the International Civil Aviation Organization (ICAO) and The International Maritime Organization (IMO). While both entities were established through separate treaties, the Chicago Convention birthed ICAO, emphasizing the organization’s Assembly, Council, and auxiliary bodies. In contrast, the IMO Convention, also known as the Convention on the International Maritime Organization, forms the basis for IMO’s structure and functions as outlined in its preamble. The core objectives of IMO revolve around fostering collaboration among governments to enhance regulatory frameworks for international maritime trade. This …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Back To The Future: Outer Space Policy Review Of The Past For Clues To The Future, Paul B. Larsen

Journal of Air Law and Commerce

Sixty years later, Professor Paul B. Larsen revisits and discusses seven outer space legal issues identified by early space law experts and their current impacts on space policy. The first section addresses the ambiguous boundary of the non-sovereign outer space legal regime which, increasingly causes states to claim control of non-sovereign outer space. Second, Larsen analyzes how the lack of outer space regulation by an international agency like the International Civil Aviation Organization has encouraged states to seek to control outer space unilaterally. Third, although the original aim of space law experts was for outer space to be free for …

Addressing Space Tourism’S Environmental Effects: Marine Environment Regulations As A Basis For Regulating Orbital Space Debris, Elena Mak

Journal of Air Law and Commerce

With the success of private suborbital space flight, the space industry is now facing unprecedented growth as billionaires strive to accomplish the task of sending astrotourists into space. However, given the novelty of this objective, the current domestic and international legal regimes governing outer space and space travel are both confusing and outdated, and thus, they have not adequately accounted for space tourism activities. Given the projected growth of this industry, detrimental and dangerous environmental effects—such as an increase in orbital space debris—have become a pressing concern. These effects will not only affect the global climate on Earth but will …

Sorry For The Delay: How Faa Regulations In The U.S. Are Stifling Innovation And Hindering The Growth Of A Promising New Industry Based On Delivery Drones, Mason Sarver

Journal of Air Law and Commerce

From the creation of the transistor radio to robots powered by artificial intelligence, the rapid pace of technological advancements in a multitude of industries has ushered in an innumerable amount of economic, environmental, and social benefits that have collectively produced positive effects around the world. However, in addition to benefits, these rapid advancements in technology have created a particular problem affecting many industries in the United States—antiquated regulations that were promulgated for a particular industry become inefficient and impractical due to rapid technological advancements within that industry. The delivery drone industry, a blossoming new sector of air commerce that has …

Curiousity Killed The (Fat) Cat: Promoting Safety Over Profit In The Space Tourism Industry, Ryan Puente

Journal of Air Law and Commerce

Humans have never been more capable than they are now of dominating the extreme environments of the universe. This newfound capacity to enter the depths of the oceans and exit the familiar grasp of the atmosphere has led to an unprecedented ability to explore the corners of the universe. This ability brings excitement and opportunity but also presents many potentially fatal risks associated with the unknowns of the extreme environments being explored. The space tourism industry, like other extreme tourism industries, faces the challenge of navigating the forefront of human exploration in a sustainable way that preserves the lives and …

Proposed Methodologies To Cure The No-Fly List’S Current Violations Of The Due Process Clause For Affected U.S. Citizens, Sierra Stone

Journal of Air Law and Commerce

Often, the No-Fly List is a helpful tool that increases the safety of commercial aviation for U.S. citizens flying domestically and internationally. The TSA and various intergovernmental agencies utilize a nomination process and those who meet the requisite criteria are added to a database and can be entered into the No-Fly List. Once being placed on the “List,” an individual is no longer allowed to board a flight flying anywhere within or over U.S. airspace. However, for a small number of people, this deprivation of the ability to fly came unjustifiably and without realistic opportunities to be removed from the …

It Comes With Baggage: The Heavy Weight Implications Of Weighing Airline Passengers, Brooke Sutter

Journal of Air Law and Commerce

The aviation industry is one of the most regulated industries that exists in modern society. Before an airplane can take a passenger from one destination to another, diligent and thorough checks are performed on the aircraft, the runway, the pilots, the crewmembers, the luggage, the route, and the numerous other points of potential risk. Due in part to this diligence, air travel is also one of the safest forms of travel. However, one point of potential risk that is underregulated and overlooked in the safety calculation is the weight of the passengers. The act of weighing passengers is not just …

Book-And-Claim System For Sustainable Aviation Fuels, Christine Kranich, Sarah J. Haas

Journal of Air Law and Commerce

This Article provides an overview of the regulatory (legal) framework in which the decarbonisation of aviation is embedded, with a focus on European law. The Article further provides updates on EU-ETS, CORISA, RED III and the minimum quota of SAF supply in accordance with Refuel EU Aviation up to October 2023. Sustainable Aviation Fuels (SAF) will be described in detail in this Article, and it is further explained that the use of SAF could significantly contribute to aviation becoming “greener”. As the availability of SAF is still rather scarce, the Article revolves around a mechanism of a global book-and-claim system …

Still Far From Home – How Personal Jurisdiction Doctrine Undercuts The Montreal Convention’S “Fifth Jurisdiction” For “Wandering Americans”, Hans Huggler

Journal of Air Law and Commerce

The rapid growth of global air travel in the mid-20th century gave rise to the problem of the “wandering American”—American residents whose air travel injury claims could not be heard in United States courts under the Warsaw Convention’s Article 28. Prominent cases prompted adoption of a “fifth jurisdiction” in the Montreal Convention’s Article 33, allowing injury suits in the Contracting State where an injured passenger had her “principal and permanent residence” so long as the international carrier served the forum. U.S. officials toasted their success in providing Americans with a domestic forum, but the adoption of the fifth jurisdiction did …

Space ‘Tourism’: A Framework For Ensuring ‘Safe And Orderly Development’ Lessons Learnt From The U.S. And Aviation, Sarah J. Fox

Journal of Air Law and Commerce

In August 2023, following its successful mission, Virgin Galactic announced the intention to provide scheduled services into space. Yet, this paper sets out to present evidence to argue that, from an international (U.N.) perspective, there has been a lack of activity to establish safeguards and to ensure a fit for purpose governance and oversight mechanism is in place for this new and growing sector—space tourism. The research is undertaken by way of a comparison law/policy analysis which factors in key historic events across both aviation and space. The main focus is given to the developments and approach of …

Commentary For The Journal Of Air Law And Commerce On The Article By Andrew Lee Entitled The Future Of The Law On The Moon, Stephan Hobe

Journal of Air Law and Commerce

No abstract provided.

Vfr Into Imc Through The Lens Of Behavioral Economics, Stephen O'Mahony, Felicity Deane, Kieran Tranter

Journal of Air Law and Commerce

Decision-making can be the difference between life and death in all types of aviation, but in general aviation (GA), where most of the flying is conducted as single-pilot operations, the decision-making of one individual becomes fundamentally important. It is critical to consider, first, why pilots make bad decisions that can ultimately lead to weather-related aviation accidents or incidents; and second, whether a better understanding of weather-related decision-making can inform regulations that will improve decision-making and consequently reduce the frequency of pilot-error accidents.

Behavioral economics (BE) aims to better understand individual decision-making to model decision-making pathways. As individual decision-making is central …

The Drone Star State: How A Challenge To Texas Drone Law Became The Latest Battleground Between The First Amendment And The Right To Privacy, Edward W. "Ted" Tooley

Journal of Air Law and Commerce

Texas is unconstitutionally infringing upon the First Amendment in the form of its overly restrictive drone regulations. While the state originally set out to create a robust privacy law providing maximum protection to its citizens, its overbroad statute instead produced the latest constitutional conflict between two of our nation’s oldest and most sacred rights. For almost a decade, Texas drone law stood unchallenged, garnering the state a reputation as arguably the least friendly jurisdiction for drone journalism. These regulations, however, have never been more vulnerable. There is a constitutional challenge unfolding in federal district court that, if successful, will redefine …

The Future Of The Law On The Moon, Andrew Y. Lee

Journal of Air Law and Commerce

Outer space is rapidly becoming the domain for industrial-scale private-sector innovation and entrepreneurship. By developing and maturing the unprecedented technology for vertical landing and partial reuse orbital-class rockets, Space Exploration Technologies Corporation (SpaceX) has reduced the cost of access to orbital space by a staggering factor of magnitude, i.e., to one-tenth the previous rate. SpaceX is now on the cusp of launching its next-generation launch system called Starship to orbit. Starship is designed to be fully and rapidly reusable (land, refuel, and fly like airplanes) and expected to decrease the cost of access to orbital space to a level comparable …