Thursday, 19 April 2007

What's wrong with "Open Skies"?

“Open” is good, right? And what could be wrong with a new civil aviation treaty between the USA and the European Union that would “liberate” trans-Atlantic flights from the bogeyman of government regulation?

Actually, quite a lot is wrong with the proposed Open Skies treaty, although you wouldn’t guess that from the laudatory press releases from the U.S. Department of State and the European Commission when the negotiations were concluded last month. Most news reports have been equally uncritical, even when they haven’t gotten their facts so badly wrong that they had to correct them (as the Wall Street Journal did in response to my letters).

The proposed treaty has now been approved by the European Union, and is due to be signed in Washington at the end of this month. The draft treaty will then go to the U.S. Senate for a vote on ratification, as the final step in its adoption and entry into force.

The details:

The latest draft approved by the EU is widely viewed as a victory for U.S. diplomatic bullying and intransigence, on issues mainly related to the economic interests of USA-based versus EU-based airlines. (As usual, the interests of travellers have been poorly represented in the negotiations.) Unless there’s a new and loud public hue and cry, debate in the Senate is likely to be perfunctory. It’s crucial that the travelling public understands the implications of this treaty, and that Senators hear from their constituents about these concerns.

The best thing about the proposed “Open Skies” treaty — and pretty much the only thing that has gotten any notice — is that it would repeal the authority of national governments to regulate which EU or USA airlines are allowed to fly between the EU and the USA, and which cities in the USA they serve (as long as they do so nonstop to and from Europe).

Leaving aside any debate on the relative merits of government regulations and “market forces” (which of course would still be grossly distorted by government subsidies to airlines and airports) as means of allocating popular routes, gates, and landing and takeoff slots, the obvious problem is that this deregulation would be neither reciprocal nor fair as between the USA and the EU: Airlines from the USA would continue to be able to carry passengers within the EU, while EU airlines would continue to be prohibited from carrying passengers within the USA.

The proposed treaty is nominally reciprocal: USA-based airlines would be prohibited from carrying domestic passengers within EU member countries, just as EU airlines are prohibited from carrying domestic traffic within the USA. But because the vast majority of air traffic within the EU is international, not domestic, the result is grossly inequitable, as European airlines and governments have said throughout the negotiations.

The continued losers would be travellers in the USA denied the benefits of competition on domestic routes from European or other foreign-owned airlines.

As I took off from San Francisco for Amsterdam last month, I looked down out the right side of the plane just after wheels-up from Runway 28 at SFO to see a row of at least three parked Airbuses in the red-and-white livery of “Virgin America”, the would-be counterpart in the USA to Virgin Atlantic, Virgin Blue, Virgin Nigeria, and the former Virgin Express.

No matter how many hoops Virgin Group and Richard Branson jump through to satisfy protectionist rules limiting foreign ownership of airlines flying within the USA, the Department of Transportation (at the behest of lobbyists for USA-based airlines) keeps moving the goalposts and withholding Virgin America’s operating license. So the planes sit idle on the ramp, the old international terminal (now “Terminal 2”) at SFO sits vacant instead of being used as the Virgin America hub, and travellers within the USA continue to be denied the chance to see what Virgin has to offer.

But that’s not the worst of the proposed “Open Skies” treaty. As I described them in my statement in Brussels last month, the key clauses are buried deep in the document in Article 8 on “security”. All of Article 8 is problematic, but the worst parts are sections 3 and 4:

Article 8


… 3. The Parties shall, in their mutual relations, act in conformity with the aviation security standards and appropriate recommended practices established by the International Civil Aviation Organization and designated as Annexes to the Convention; they shall require that operators of aircraft of their registries; operators of aircraft who have their principal place of business or permanent residence in their territory; and the operators of airports in their territory act in conformity with such aviation security provisions.

4. … Each Party agrees that the security provisions required by the other Party for departure from and while within the territory of that other Party must be observed….

As I described it in my statement in Brussels last month,

The latest draft of the so-called “Open Skies” agreement on air transport between the E.U. and the U.S. fails to respect the rights of travellers. It would override portions of the PNR agreement [between the EU and the USA] and create new mechanisms by which other provisions could be overturned without adequate public participation in those future decisions.

The “Open Skies” agreement incorporates obligations under law enforcement treaties [Article 8, Section 1], but fails to mention any of those treaties limiting the powers of law enforcement or protecting the rights of travellers. In particular, it fails to mention the International Covenant on Civil and Political Rights, which guarantees freedom of movement — including international movement — under its Article 12. The “Open Skies” agreement thus might be interpreted to take precedence over the ICCPR or any restrictions in the PNR agreement, especially if the “Open Skies” agreement is ratified as a treaty, while the PNR agreement is not, but remains a non-binding undertaking not enforceable through any judicial process in the U.S.

The “Open Skies” agreement [Article 8, Section 3] requires compliance with all “recommended practices” of the International Civil Aviation Organization (ICAO). By making ICAO recommendations mandatory, the “Open Skies” agreement effectively delegates to ICAO the legislative power of the E.U. and the US. This is especially problematic because national delegations to ICAO have never included data protection, civil liberties, or human rights authorities.

The “Open Skies” agreement requires compliance with “security measures” adopted by the parties to the agreement, but sets no standards for the manner in which they should be adopted, or can be reviewed. The “Open Skies” agreement thus requires compliance with even secret, unreviewable, orders adopted without due process or democratic decision-making procedures.

It’s not just that ICAO makes no attempt to consider human rights, or that the USA and some of its allies such as the UK have a track record of using ICAO for policy laundering . Worse, because the U.S. Constitution makes treaties part of the “supreme law of the land”, below the Constitution itself but higher than any state or Federal laws, the requirement for compliance with ICAO recommendations, once agreed to and ratified as part of a treaty, would tie the hands of Congress and could only be modified or repealed by a new treaty. And as a more recent treaty, it could be held to take precedence over any earlier treaty such as the ICCPR.

This clause of the proposed “Open Skies” treaty should be recognized, and denounced, for what it is: a surreptitious back-door attempt, bundled with a treaty that would otherwise face little opposition, to remove air travel from the protection of the most fundamental international principles of human rights.

Open skies? Or closed? Tell your Senators, now, not to ratify the proposed “Open Skies” treaty with the EU, and to hold hearings and debate on the proposed treaty that specifically include witnesses on the implications of these provisions for the human rights of travellers.

Link | Posted by Edward on Thursday, 19 April 2007, 15:09 ( 3:09 PM)

Great entry; I wouldn't have had any idea how terrible this legislation is going by the news reports I've heard.

There seems to be problem with your blog software or something though. After the closing paragraph, the entire text is repeated, with the addition of "blog/archives/001197.html" in one of the quotations.

Posted by: Austin, 20 April 2007, 14:17 ( 2:17 PM)

Thanks, Austin. My mistake. I think it should be fixed now.

Posted by: Edward Hasbrouck, 20 April 2007, 16:41 ( 4:41 PM)

Good day

I read your article and you mentinoned that open skies agreement had negative impacts on the consumer/traveller. Can you please specify, with examples

Thank you

Posted by: svetlana, 30 March 2008, 11:01 (11:01 AM)
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