Post Pandemic Facilitation of Air Transport : LEGAL, POLITICAL AND ECONOMIC ASPECTS

From early 2020 for a period of two years at the end of which this book was written, air transport suffered unprecedented setbacks due to the COVID-19 pandemic. Although the pandemic may eventually fizzle out into another flu like occurrence, the restraint with which air transport services were offered would remain with us for a while with some practices being sustained, particularly those pertaining to public health. One of the main areas of air transport that was and will be affected significantly by the changed circumstances - is facilitation – a subject that is regulated by the Chicago Convention of 1944 and its Annex 9. This book looks in depth at the Annex as it will be applied in a post pandemic world, against its legal, socio-political, and economic impacts, addressing the Standards of the Annex on clearance of aircraft; entry and departure of passengers; and the carriage of cargo. It also discusses some critical aviation events in 2020 and 2021 that occurred as they relate to facilitation of air transport. Some of the key areas discussed are the role of ICAO; issues of public health as they relate to air transport; security of travel documents; smuggling of persons; digital technology and rights of the passenger; unruly passengers; carriage of disabled passengers; relief flights and repatriation flights; and facilities at airports. Preface Contents Chapter 1: Legal Basis of Annex 9 1.1 Treaty Pespectives 1.2 Accessibility of Airports to Aircraft and Passengers 1.2.1 The Qatar Case Study 1.2.2 Grounds of Appeal Before the ICJ 1.2.3 Can the Council Act Judicially? 1.2.4 The Way Forward Procedure 1.2.5 Considerations for the Council 1.2.6 The Final Discussions in the International Court of Justice 1.2.7 The Case 1.2.8 Arguments Before the Court 1.2.9 Opinion of the Court 1.2.9.1 India v. Pakistan 1.2.9.2 The Present Case References Chapter 2: Annex 9: Entry and Departure of Aircraft 2.1 The Ryanair Case 2.1.1 Treaty Obligations of Belarus 2.1.1.1 Applicable Treaties 2.1.1.2 Breaches of International Law 2.1.1.3 Applicable Resolutions of the United Nations and ICAO 2.1.1.4 Principles of State Responsibility 2.1.1.5 Passenger Rights General Provisions Public Health Measures Economic Measures 2.2 The ICAO High Level COVID-19 Conference 2.2.1 The Conundrum Further Aggravated 2.2.2 The Declaration 2.2.2.1 Text 2.2.3 Legal Status of the Declaration 2.2.4 Discussions at the Conference 2.3 Documents: Requirements and Use 2.4 Disinsection and Disinfection of Aircraft 2.4.1 Disinsection 2.4.2 Disinfection 2.5 When COVID-19 Trumps Facilitation 2.6 Diplomatic Flights 2.6.1 State Aircraft References Chapter 3: Entry and Departure of Persons and Their Baggage 3.1 Political Nuances of Travel Documents 3.2 Human Smuggling by Air 3.2.1 Definitions 3.2.2 Applicable Treaty Provisions 3.2.3 European Community Policy 3.2.4 Geo-Political Considerations 3.2.4.1 Actions Taken by States 3.2.4.2 The Air Transport Connection 3.2.4.3 An Alternative Route 3.3 Border Control 3.3.1 Machine Readable Technologies 3.3.2 The ePassport and the Public Key Directory 3.3.3 Digital Travel Credential (DTC) 3.3.4 Rights of the Data Subject 3.3.5 Privacy of the Data Subject 3.4 Security of Travel Documents 3.4.1 Lost or Stolen Travel Documents 3.4.2 Machine Readable Passports 3.4.3 State Acceptance of Refugees and Refugees Law 3.4.4 Inadmissible Aliens 3.4.5 Judicial Decisions 3.5 Data Protection and Privacy Issues of MRTDS 3.5.1 Exit Visas 3.5.2 Inspection of Travel Documents 3.5.3 COVID-19 and Exposure to Fraud 3.6 Congestion in the Terminal 3.7 Advance Passenger Information 3.7.1 Responsibility of the Carrier for Providing API References Chapter 4: Entry and Departure of Cargo and Other Articles 4.1 Liability of the Carrier for Delay 4.2 Rulemaking by the State 4.3 Consultation with Airlines on Cargo Carriage 4.4 Free Zones 4.5 Information Required by the Public Authorities References Chapter 5: Inadmissible Persons and Deportees 5.1 General Principles 5.2 Inadmissibility and Deportation 5.2.1 The Djokovic Case 5.2.1.1 Facts 5.2.1.2 The Visa, Public Interest and Ministerial Discretion 5.2.1.3 Decisions Arrived at Influenced by Preconceived Notions 5.2.1.4 The State and Aircraft Operator 5.2.1.5 Inadmissible Persons and Security References Chapter 6: Other Areas of Interest 6.1 Unruly Passengers 6.2 Carriage of Disabled Passengers 6.3 Relief Flights and Repatriation Flights 6.4 Facilities at Airports Reference Chapter 7: Conclusion Appendix 1. General Declaration Appendix 2. Passenger Manifest Appendix 3. Cargo Manifest Appendix 4. Certificate of Residual Disinsection Appendix 5. Embarkation/Disembarkation Card Appendix 6. Recommendation of the Customs Co-operation Council Appendix 7. Civil Aviation Inspector Certificate Appendix 8. Suggested Formats for Documents Relating to the Return of Inadmissible Persons Appendix 9. Letter Relating to Fraudulent, Falsified or Counterfeit Travel Documents or Genuine Documents Presented by Imposte... Appendix 10. United Nations Layout Key for Trade Documents Appendix 11. Model Airport Facilitation (FAL) Programme 1. Purpose of an Airport FAL Programme 2. Scope of an Airport FAL Programme 3. Organization and Management Appendix 12. Model National FAL Programme 1. Purpose of a National FAL Programme 2. Scope of a National FAL Programme 3. Organization and Management 4. Establishment of a National FAL Programme Appendix 13. Public Health Passenger Locator Form Appendix 14. Guidelines on Advance Passenger Information (API) WCO/IATA/ICAO 2014 Guidelines on Advance Passenger Information Introduction Problem Definition Current Passenger Processing Techniques Organizational Policy API Program Differentiation: Batch or Interactive API Costs and Benefits of API Costs Benefits National Passenger Processing Strategy API Data Capture and Transmission Legal Aspects of API Conclusions