JUNE 2017

    Steven Truxal

In the wave of growing consumer demand for global air travel, one can observe how domestic and international regulation of certain market aspects of aviation has not always developed in the same direction or at the same speed; this purports to challenge orderly progress of international law. Different legal frameworks, legal and political ideologies and respective realities have influenced the development of, for instance, multi-level regulation of aspects of civil aviation vis-à-vis consumer protection and limited liability regimes. Such developments are reflected in the most recent progress at the international level, following the adoption by the International Civil Aviation Organization of core principles on consumer protection for air passengers. This article provides an exposé on the increasingly contentious area of divergent approaches for the development of consumer protection initiatives, focusing on what are air passenger rights and how the impetus to provide them uniformly has risen up the agenda of the international aviation community. The article considers existing international law on air carrier liability, and the EU and US air passenger rights regimes, before locating the new core principles, to determine alignment of the existing systems.

consumer protection; air carrier liability; air passengers; core principles
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The global law scape for consumer protection has undergone significant changes over the past decade. As a case study of the wider debate on global consumer protection policy and regulation, this article identifies and discusses consumer protection and airline liability in the air transport sector. Legal and policy developments within this specific area, and the resulting call for global order, were briefly explored in a comment published in the inaugural issue of the Journal of International and Comparative Law.

In the interim of three years, one has witnessed an incremental increase in the number of air passenger rights regimes vis-à-vis domestic and international law. While consumer protection initiatives tended traditionally to stem from policy responses to domestic concerns such as unfair contract terms and damage caused by defective products, the origins of today’s law and policy on “specialised” consumer rights are visible at all levels. Sector-specific guidance has been issued as recently as in 2016 in the area of “tourism”.With that said, more general international guidelines have been in existence for some time now.

Of concern about a markedly rapid proliferation of domestic legislation in the specialised area of air passenger rights, the international community called on the International Civil Aviation Organization (ICAO) in 2013 to develop “a set of high- level, non-prescriptive core principles on consumer protection”, which are to guide domestic policy with an ultimate aim of striking “an appropriate balance between protection of consumer and industry competitiveness and which take into account the needs of States for flexibility, given different State social, political and economic characteristics; with existing instruments”.6 International law already exists in the area of air carrier liability under the Montreal Convention 1999, which provides a two-tier liability regime for “accidents” occurring during the performance of an international contract of carriage of air passengers, baggage and cargo: strict liability and presumptive liability. As one might expect, it will be necessary to develop our understanding of the concepts of “air passenger rights” and “air carrier liability”, and any tensions between them, later in this article.