Date: 2018
Type: Article
Human rights in the sky : weighing human rights against the law on international carriage by air
European journal of legal studies, 2018, Vol. 11, No. 1, pp. 39-66
KOVUDHIKULRUNGSRI, Lalin, Human rights in the sky : weighing human rights against the law on international carriage by air, European journal of legal studies, 2018, Vol. 11, No. 1, pp. 39-66
- https://hdl.handle.net/1814/60467
Retrieved from Cadmus, EUI Research Repository
In order to unify rules on the liability of air carriers, the Convention for the Unification of Certain Rules for International Carriage by Air of 1999 (Montreal Convention) and its predecessor, the Convention for the Unification of Certain Rules Relating to International Carriage by Air of 1929 (Warsaw Convention), embrace a core value known as the exclusivity principle. Under this principle, both Conventions are an exclusive cause of action and preclude other claims which fit in their scope of application. This paper questions how courts understand and interpret the values of human rights when interacting with the exclusivity principle. To answer this question, the paper examines and analyzes case law from three different jurisdictions, namely the United Kingdom, the United States, and Canada, by employing the rules of treaty interpretation under the Vienna Convention on the Law of Treaties. The paper argues that human rights are prone to being downgraded by the law on international carriage by air in these three jurisdictions. By utilizing the rules of treaty interpretation, this paper finds two common approaches which can be applied in these jurisdictions. First, the Warsaw Convention and the Montreal Convention appear to a certain extent to be self-contained because of their exclusivity principle. Second, courts construe the term 'bodily injury' so narrowly that purely emotional damage, which is usually claimed in cases concerning human rights violations, cannot be pursued. Because of these two factors, persons whose human rights were breached when they were on board an aircraft cannot receive any monetary compensation solely for moral damage. In short, it seems the exclusivity principle in private international air law carries a higher value than that of human rights law.
Additional information:
Published online 21 December 2018
Cadmus permanent link: https://hdl.handle.net/1814/60467
ISSN: 1973-2937
External link: https://ejls.eui.eu/
Publisher: European University Institute
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