The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

2 The four scenarios are based upon the historical development of the laws, regulations and policies affecting the aviation industry. So, to grasp why one or more of these scenarios is more likely than others to prevail, we first look to the evolution of international air transport to identify the bedrock and, perhaps unfortunately, immutable the principles around which the new normal will be built. 2. Legal Foundations of Aviation From the earliest days of aviation – even before the invention of the airplane –, law and policy for aviation have been circumscribed by national security and sovereignty. The Hague Conventions of 1899 and 1907 addressed conduct during warfare and contained provisions, dealing with the discharge of projectiles from balloons. The first multilateral conference concerning international aviation, held in Paris in 1910, featured debates over national sovereignty 4 – should national airspace be treated like the high seas, open to all, or should States be permitted to control who enters their airspaces? That question was settled during World War I, during which national laws appeared in Britain, France and Germany, limiting access to their sovereign airspace 5 . The Paris Convention of 1919, the first multilateral convention on international civil aviation, recognised that all States have sovereignty over their national airspace, a concept embraced by the US in the Air Commerce Act of 1926. In the wake of the Great War, and in the span of less than ten years, closed skies became the new normal. The Paris Convention of 1919 was largely a regional instrument guiding European aviation – the first transcontinental flight would not occur until almost a decade later. Most countries in the American continent did not join the Paris Convention, opting instead to join the Havana Convention of 1928, which took a more liberalised approach to economic aspects of air carriage 6 . Differences between the Paris and Havana Conventions forecasted an impasse between the US and British governments that would occur during negotiations at the Chicago Conference of 1944 7 . What was that impasse? During World War II, Europe’s aviation manufacturing industry had been bombed to ruins. In the US, on the other hand, Boeing, Douglas, Hughes and Lockheed were making huge bombers and transport aircraft that could be turned into civilian aircraft with little additional effort. Great Britain feared being swamped by America’s airlines, so it marshalled the delegations of the Commonwealth and imposed, on the Conference, a system 4 John Cobb Cooper, “The International Air Navigation Conference, Paris 1910” in Ivan A. Vlasic, ed., Explorations in Aerospace Law: Selected Essays by John Cobb Cooper, 1946-1966 (Montreal: McGill University Press, 1968), 106-109. 5 Malgorzata Polkowska, “From the Paris Conference of 1910 to the Chicago Convention of 1944” (2008) XXXIII Annals Air & Space L 59, 62. 6 Michael Milde, International Air Law and ICAO, (Utrecht, The Netherlands: Eleven International Publishing, 2008), 13. 7 The following history of the Chicago Conference and Bermuda Agreement is from: L. Welch Pogue, “The International Civil Aviation Conference (1944) and Its Sequel, the Anglo-American Bermuda Air Transport Agreement (1946)” (1994) XIX(1) Annals Air & Space L. 1; Jeffrey N. Shane, “Diplomacy and Drama: The Making of the Chicago Convention” 32(4) The Air & Space Lawyer 1 (American Bar Association, 2019).