Implementation of the Cape Town Convention into and Its Relationship with National Law
The Cape Town Convention and its Aircraft Protocol (read together, the ‘convention’) is a groundbreaking substantive law instrument designed to facilitate a transaction type. It does so by setting out risk-reducing rules, which, if effectively implemented into national law and complied with by national authorities, produces substantial economic benefit.
Early in the developmental process, there were proposals for a short conflict-of- law-type instrument, which would help determine which state’s substantive law applies to the transaction. The aviation industry already had such an instrument: the Geneva Convention of 1948. Beyond that, at a conception level, although such an instrument would simplify conflicts analysis (thus lightly reducing information- related transaction costs), it would not have delivered the best practice, risk-reducing legal predictability that creditors and debtors maximize economic benefit.
To deliver that level of predictability and risk-reduction, the convention needed to deal with substantive legal issues that had previously been considered beyond the scope of what was politically feasible in earlier commercial law harmonization attempts. More specifically, at the core of the transactions the convention governs are legal subjects that were long considered inherently domestic: fundamental concepts of property law and insolvency. To complicate matters further, the international nature of the transactions necessitated a registry which could be used instantly and universally, all at a time when modern electronic systems were still in their infancy. These items were boldly addressed, leading to the success of the instrument. The use of an innovative declaration structure, permitting states to opt into
J. Wool (*)
School of Law, University of Washington, Seattle, WA, USA
Aviation Working Group, 65 Fleet Street, London EC4Y 1HS, UK
© Springer International Publishing AG 2017 9
S. Kozuka (ed.), Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions, Ius Comparatum - Global Studies in Comparative Law 22, DOI 10.1007/978-3-319-46470-1_1
and out of some of the further reaching provisions, greatly assisted in the politics needed to address these topics.
The approach of dealing with core notions of property and insolvency law, together with the wide scope of sub-topics addressed (creation, registration, priority, enforcement, and dispute resolution), however, entailed intimate interaction between the convention and national law. While a contracting state’s international obligations, supported by the (Vienna Treaty on Treaties) rule that national law may not excuse non-compliance with such obligations, are helpful and signal the applicability and reliability of the convention’s rules, transacting parties need to know that such rules have the effect of national law in a contracting state with priority over other national law in the case of conflict. Both de jure and de facto. This ‘primacy criterion' has driven, and will continue to drive, the analysis and utility of the convention over the years.
The threshold question, now addressed at length in the literature, is whether the convention’s rules have been ‘implemented’ into, and, thus, have the force of national law. In another words, will the convention’s provisions apply to transactions within its scope. The exact process of implementation (noting that the term used for this legal process and its effect differs by legal system) varies from state to state. At the most basic level, the starting point is whether the state has a monist legal system—which views the international and domestic legal spheres as one—or a dualist legal system—which views international law as a separate plane from domestic law with international law governing the relations between states rather than relations between individuals. In dualistic states, the convention has limited or no direct effect on the legal relationships between transacting parties; rather, those relationships will be governed by a domestic law passed to give the convention the force of law within that state. In reality, most legal systems have aspects of monism and dualism, and, accordingly, these concepts should be viewed as setting out a continuum. For example, many states with monist legal systems must pass publicityensuring basic legislation and may need to amend conflicting laws. Without exception, they also need to provide practical rules dealing with changes to aviation regulations (on de-registration of aircraft, a core concept in the instrument).
The second feature of the primacy criterion, while receiving less attention, is much more important: does the convention prevail in the case of conflict with other national law. The answer to that question implicates, depending on the subject legal system, fundamental questions of treaty implementation, interpretation, and legislative and regulatory technique. The assumption that the convention has primacy— that is, that the international obligation aligns with the effect under national law—may be false. That depends on whether such primacy has been established and remains effective based on one of four legal principles. Does the convention prevail in the case of conflict with other national law: (1) as a higher legal norm (based on the role of treaties in the constitutional or hierarchical system), (2) based on express legislation to that effect, (3) based on the principle of lex specialis, or (4) based on the principle of lex posteriori. A summary of the position on this critical question can be found on www.awg.aero (summary of national implementation).
This book—arising out of Prof. Kozuka’s presentation to the 19th International Congress of Comparative Law—offers an important comparative look at the convention from the vantage point of major jurisdictions around the world. A close reading of these chapters gives much detailed information about, highlights and shows the importance of, and suggests points requiring further assessment and work on, the main implementation themes, including the primacy criterion, outlined above. It also sets the stage for, and provides elements relating to, the analysis of treaty compliance: will the convention’s rule actually and accurately be applied, assuming threshold implementation in countries around the world.
Finally, this book serves an important educational function with links to implementation features. This educational function is especially needed now. As states consider ratifying the rail and space protocols and work on developing other protocols continues, these issues of implementation will remain central to their success. All states, whether monist or dualist and regardless of the applicable primacy technique, must work to educate their judges and administrative officials on the convention and protocols. When applying new international norms to areas of law that were previously domestic, there is a risk (as Prof Brian Havel and others have said) of ‘re-nationalization.’ This process is often unintentional; legislators, judges, and officials are more familiar with their domestic law than with an international instrument like the convention, and, thus, have a natural tendency to implement, interpret, and apply treaties in a way that makes them accord with their prior national law. That would fail to reflect the international character of the convention, an objective expressly set out in the text.
Jeffrey Wool is professor of global business law, University of Washington and an associate faculty member, University of Oxford. He is secretary general, Aviation Working Group, and head of aerospace law and policy, Freshfields Bruckhaus Deringer. Professor Wool is also the executive director of the Cape Town Convention Academic Project, the general editor of the Cape Town Convention Journal, and the chair of the Advisory Board to the International Registry (Aircraft Protocol).