The Conflict of International Agreements in Air Law: A Reasonable Plea for Conventional Uniform Rules

• Autore: Mohammed El Hadi El Maknouzi, Iyad Mohammad Jadalhaq
• Carica: Abu Dhabi University/Zayed University
• Pagine: 239-260

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hps://doi.org/10.6092/issn.2531‐6133/14144

Received: 18 Jan. 2021 | Accepted: 12 Mar. 2021 | Published: 27 Dec. 2021

A

The Conict of Internaonal Agreements in Air Law: A

Reasonable Plea for Convenonal Uniform Rules

M

OHAMMED

E

L

H

ADI

E

L

M

AKNOUZI

* & I

YAD

M

OHAMMAD

J

ADALHAQ

**

*Mohammed El Hadi El Maknouzi is Associate Professor in Commercial Lawat Abu Dhabi University

(United Arab Emirates). He holds a PhD in Commercial and Business Law and a Diplôme d’Études

Supérieures Approfondies (DESA) from Mohammed V University in Rabat (Morocco). He was also

awarded a joint LL.M. in Company Law from the University of Toulouse (France) and the Institut

Supérieur de Commerce et d’Administration des Entreprises (ISC.A.E) (Morocco).

**Iyad Mohammad Jadalhaq is Full Professor of Civil Law at Zayed University in Abu Dhabi

(United Arab Emirates). He holds a Ph.D. in Law from the National and Kapodistrian University of

Athens (Greece).

The authors would like to thank Luigi Russi, Ph.D., from Peerwith, for the English language

editing.

@*mohammed.maknouzi@adu.ac.ae **iyad.jadalhaq@zu.ac.ae

ID *0000-0003-3396-8985 **0000-0002-6174-1895

ABSTRACT

This note surveys the roots of a phenomenon called “conflict of international agreements”, which

forms a distinctive source of legal uncertainty in trans-border disputes, with a particularly high

incidence in the field of air law. The authors suggest that the conflict of international agreements

should be understood as an added layer of legal complexity in trans-border air law disputes,

beyond the customary questions around applicable law and jurisdictional competence that are

commonplace in private international law. The first part of this study maps the main factors that

have led to the emergence of this peculiar conflict in the domain of air law. Among them are the

following: the fact that national air law legislations have typically been developed by catching up

with prior international regulatory initiatives (to the point of inserting, in national provisions,

named references to specific treaties); the development of international air law through different

generations of treaties with non-overlapping memberships; the possibility for different degrees

of membership within the same treaty, and the succession of states. All these factors contribute

to the possibility that a judge, tasked with a trans-border air law dispute, might first need to

determine the international agreement under which the dispute falls, to settle preliminary

questions of applicable law or jurisdiction. Or that he or she might end up—after following the

trail of foreign legislation when settling a conflict of laws—having to apply treaties that might

not be compatible with the international obligations of his or her jurisdiction of belonging.

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The second part of this study then looks at a sample of existing strategies for resolving such

uncertainty,by looking at the Vienna Convention on the Law of Treaties, the jurisprudence of the

French Conseil d’État, and doctrinal commentary. As a result, the study finds that the

horizontality of international law and the difficulty posed by non-overlapping treaty

memberships (so that different rules apply to different sets of states) is, at present,

insurmountable. This leaves the possibility open, for instance, that a competent court might have

to choose between (i) deferring to private international law norms that might lead to the

application of incompatible treaties binding in a foreign legal system, and (ii) applying the

different treaties ratified by the state of the competent court. This is what case-by-case

decision-making at the point of adjudication might entail, in the absence of a renewed impetus

for harmonisation. It is on this basis that the authors conclude with a reasoned plea for new

initiatives aiming at greater uniformity in international air law.

KEYWORDS

Air law; Conflict of International Agreements; Conflict of Laws; Legal Harmonisation; Uniform Rules

TABLE OF CONTENTS

Introduction ............................................ 241

1. Conflict of International AgreementsVersus Conflict of Laws . . . . . . . . . . . . . . . . 244

1.1. Deference of National Air Laws to International Agreements . . . . . . . . . . . 244

1.2. Proliferationof International Civil Aviation Agreements . . . . . . . . . . . . . 246

1.3 Conflicts of International Agreements on Air Law: Examples from the French

CourdeCassation.................................... 249

2. PatchworkSolutions for Addressing the Absence of Uniform Rules . . . . . . . . . . . . . 251

2.1. The Conflict of International Agreements in the Vienna Convention on the Law

ofTreaties........................................ 252

2.2 The Conflict of International Agreements in the Jurisprudence of the Conseil d’État 252

2.3. Doctrinal Proposals on the Conflict of International Agreements in Air Law . . . 254

Conclusion ............................................. 259

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