The View From LL2

A recent article from The New York Times demonstrates another way that understanding principles of jurisdiction and extraterritoriality can really pay off:  it might lead to free stuff.   The European Union passed a law in 2005 requiring airlines to provide certain compensation to their passengers when flights get delayed or seats get bumped.  But guess what?  It also applies outside the European Union!

[U]nlike the United States, where airlines make their own rules on how passengers are compensated when flights are delayed or canceled, the European Union requires airlines to pay penalties of up to 600 euros, or about $750, when the problem is the carrier’s fault, and cover hotel rooms and meals even when it is not.

The law, EC 261, in effect since 2005, applies to any European Union airline flying to or from a member state. But here’s a detail that American carriers would prefer their customers not know: it applies to all flights departing from the European Union, regardless of the passengers’ nationality.

Apparently, however, some airlines are questioning whether this law can apply once planes are outside the territorial borders of the EU, particularly if the airline in question is not an E.U. airline.  So “although the Transportation Department, the Air Transport Association, the European Commission and even the State Department say these rules apply to American carriers, it is not clear how willingly airlines actually pay compensation, and how effectively the rule can be enforced.”  The Times further explains:

“It’s not a level playing field,” Mr. Lott said. Because this issue gets into complex areas of international law, there are no easy answers.

“As a legal matter, we don’t challenge the authority of the European Union to regulate air transportation emanating from its territory,” said John Byerly, the deputy assistant secretary for transportation affairs at the State Department, who is involved in negotiating aviation treaties.

Although Mr. Byerly confirmed that Europe’s passenger rights regulations apply to American carriers leaving Europe, he conceded that there is no body that enforces them in the United States, creating a gap that has yet to be addressed.

Don’t these airlines know anything?  Of course Europe has jurisdiction to regulate American carriers, under the principle of . . . ummm . . . hmm.  Well, the EU can’t claim territorial jurisdiction once the planes are outside the EU.  Nationality might be a basis for jurisdiction for E.U. airlines, but not American ones.  This type of conduct probably isn’t the type contemplated by the protective principle of jurisdiction either.  And even though passive personality might be a valid basis for some customers, it won’t be for the Americans.  So what is the actual basis for jurisdiction here?  Of course!  Universal jurisdiction applies.  Bad airline services is most certainly a “crime against all, which any state is authorized to punish, as it is too serious to tolerate jurisdictional arbitrage.”

I look forward to the establishment of the International Criminal Tribunal for Heinous Airline Service.

-Michael