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Research On The Exchange Of Traffic Rights From The Perspective Of International Law

Posted on:2018-07-30Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y ZhangFull Text:PDF
GTID:1366330536975395Subject:Private International Law
Abstract/Summary:PDF Full Text Request
Traffic rights,which are crucial strategic resources,reflect national sovereignty in the field of civil aviation industry.They develop international relations and promote world trade.And international civil aviation is based on the exchanges of traffic rights between states.The exchanges of traffic rights constitute the basic legal means and the most important content of international air law.This dissertation is composed of an introduction and four chapters.Chapter I,serving as the foundation of the dissertation,mainly analyzes the principles of international law on the exchanges of traffic rights.The customary international law principle of exclusive sovereignty of states over the use of their airspace was enshrined in Convention Relating to the Regulation of Aerial Navigation of 1919,which was also affirmed as the international legal standard in Convention on International Civil Aviation of 1944.Since then,the activities of cross-national air transport has been evolved according to tens of thousands of bilateral agreements of the governments on civil aviation which always follow the principles of equality,reciprocity,corporation and development.Traditional Chicago System emphasizes bilateral doctrine and government protection heavily,partially hindering capital flows,competition and development of international civil aviation.To make up these flaws,the United States of America and Europe have witnessed a gradual evolution and improvement towards a far more sensible approach to the regulations of international air service.They try to explain many elements of the Chicago System more freely and provide two different patterns for other countries in deregulating the national industry of civil aviation.The tide of innovation and change,echoed by ICAO,IATA and WTO,eventually promotes a new “Air Transport Liberalization” approach to international aviation.The so-called “late-model Chicago Convention system” is going around.Chapter II reviews the international practice of the exchanges of traffic rights.The legal evolution is divided into four phrases: the standard style of Chicago system,the style of Bermuda I,the style of “open skies” and the style of regional cooperation.The standard agreement of Chicago system,which is characterized as confidentiality and protectionism,is always seen as a kind of “personal contract” signed by the states on behalf of the flag carriers.The style of Bermuda I,a kind of moderately liberalized bilateral agreement,reflects the mutual compromise between the doctrine of liberalization and conservatism.When the United States pursued deregulation in civil aviation,it also exported the idea and policy in the way of signing more “open skies” bilateral agreements which introduced less control in the capacity and tariff,more designated airlines,additional gateway airports and mutually authorized unlimited fifth traffic rights.In 2007,the north Atlantic “open skies” area,which is also the largest air transport market,has emerged as the result of “open skies” agreement of 2007 between the United States and EU.In addition,with the development of regional integration,the exchanges of traffic rights represent a tendency of regional cooperation where Europe is the best example.Gradually and prudently,EU has solved the problem of integration of internal air market by deploying three packages of liberation program.Another sound example is Asia.As one of the fastest developing area in air services,Asia has explored in the field of regional cooperation on the basis of APEC and ASEAN.These regional agreements on the exchanges of traffic rights are beneficial to avoid the conflicts among different countries,to bring the possibility of emerging of different regulations and rules,to help the formation of “joint airspace”,also to promote the development of liberalization of global air transport.The potential impact of regional cooperation should be seriously concerned.Chapter III discusses the challenge of international law in the exchanges of traffic rights.With the emerging new legal problems as the core,this chapter unfolds issues on the impact of the liberalization to traditional patterns of the exchanges of traffic rights,the influences of the policy of deregulation to the international rules of nationality and citizenship,the issue of airline alliances and the erosion of code-sharing to cabotage.It is to be noted that the ultimate aim of liberalization lies in permitting market power to decide the market itself and potential competitors to enter the market more freely.The liberalization of air service means more bilateral “open skies” in the framework of Chicago System,which requires utmost change of international air transport regulations and rules such as lifting the limitations of capacity and tariff,removing the ban of capital flow and the establishment of airlines,drifting the designation of air carriers from the flag carriers to more private-owned and low-cost airlines.Besides that,several countries acted as the standard-bearer of liberalization try to encourage “open skies” of other countries by approval of antitrust exemption.On one hand,“open skies” represents a policy of air regulation,on the other hand,the approval of antitrust exemption reflects a policy of competition.When these two are combined and connected,the impact to the exchanges of traffic rights are massive and profound.In terms of international rules of nationality,it strictly regulates that the designating airlines should be substantially owned or effective controlled by the state or the citizen of the state so that the state will maintain its absolute control and influence in the field of national air transportation.However,with the introduce of the policy of deregulation and the development of the business style of air service,it seems that international rules of nationality has been loosed on the basis of domestic,international and industry management.As we all known,global economy and airline network are important to the development of international air transportation.However,restricted by the government protectionism and the contemporary regulatory context,many international airlines which in fact operate the traffic rights are exploring a brand-new corporation pattern— airlines alliance so as to adapt to the industrial demand of liberalization and to bypass the limitation of market entrance and transnational investment.Thanks to the technology of Hub-and-spoke airline network,FFP,code-sharing and GDS,airlines can develop new air market in absence of governmental bilateral agreements and build up multinational “soft law” mechanism which causes a degree of destruction and derogation to the current system of exchanges of traffic rights.As to code-sharing,which is the crucial method of airline alliances,will help the airline pioneer new market by sharing flight number and service with another partner without attaining legal position of designated airline.In the process of bilateral negotiation,code-sharing also can be used as a complement of the designation of airlines by the government which increases uncertain and vagueness of the position of designated airlines in Chicago system.Under these circumstances,the cabotage of a state can be “transferred” to one international airline without a bilateral agreement.Chapter V mainly makes a response to the exchanges and opening-up of traffic rights from the perspective of China on the premises of reviewing the legal practices of China in the activities of international exchanges of traffic rights and analyzing the challenge in policy,administration and legislation.International civil aviation of today is characterized as globalization,liberalization,competition and diversity.China,as the second biggest economy,the largest exporter,the second largest importer,the third investor and rapid growing output of international passengers,should deal with the new situation of “open skies” efficiently and improve the international competitiveness of national civil aviation industry.We also should realize the strategic conception of building a civil aviation power in the world and devote to the development of global air transportation.Firstly,this chapter provides the statistical research on the evolution and practice of china's air transportation by comparative analysis of bilateral agreements in air service according to the time sequence.Secondly,it elaborates and introduces the activities of China's anticipation in global exchanges of traffic rights,regional corporation such as China-ASEAN,the new practice of “one belt and one road” and ICAO,IATA.Thirdly,this chapter discusses five shortcomings in the field of the exchanges and opening-up of traffic rights of China.In recent decade,although we have witnessed the booming growth in international air transportation,the industry is also impeded by the problems of slow development in the opening-up,low degree of marketization,lack of international competitiveness,suffering of bottleneck in the construction of hub airport and weak openness in the management of competition and investment.Finally,the chapter suggests ways to remedy these problems focusing,in particular,on drawing up more active and flexible international policy on the exchanges of traffic rights to guarantee the opening-up orderly,on modernizing the administration in civil aviation by integrating market mechanism and administrative regulation,on vigorously cultivating the international competitiveness of national airlines,on positively reforming the resource allocation mode of air space and slots,on effectively developing the management means of competition,also on providing flexible mechanism of international air transportation disputes and other legal services.
Keywords/Search Tags:Exchange of Traffic Rights, International Civil Aviation Law, Chicago System, Liberalization of Air Transportation, Open Skies
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