Book Reviews

AEROSPACE / MARCH 201944

Afterburner

It is heavily ironic that the aviation industry, by its nature one of the most global of industries, is hamstrung by a protectionist regulatory regime developed over 70 years ago

ECONOMIC AND ENVIRONMENTAL REGULATION OF INTERNATIONAL AVIATION

From Inter-national to Global GovernanceBy S Truxal

Routledge, Taylor & Francis Group, 2 Park Square, Milton Park, Abingdon OX14 4RN, UK. 2017. 221pp. £90. ISBN 978-1-1388-4345-5.

It is heavily ironic that the aviation industry, by its nature one of the most global of industries, is hamstrung by a protectionist regulatory regime developed over 70 years ago in a completely different world context. For decades now, many esteemed academics have queried – with greater or lesser degrees of vociferousness – if the current nations-based regulatory regime is at all fit for purpose. In his new book Dr Truxal joins this chorus but with an interesting spin which is a focus on what can be achieved pragmatically within the current regime, and what is being achieved to move aviation ‘from inter-national to global governance’.

Dr Truxal argues that future work on the global governance of aviation must focus on the more technical side of developing processes for effective decision making, as well as implementation of and adherence to decisions in areas of global concern that demand international co-operation, such as passenger protection and the environment. Dr Truxal deserves praise in his book for his focus on the possible rather than raging against a system that is unlikely to change in the foreseeable future.

Where some commentators may not follow Dr Truxal is his emphasis on what has in his view been achieved to create a more global-based international aviation governance. Dr Truxal argues that “the impetus for new forms of economic and environmental regulation of international aviation is giving way to an emerging global governance regime for civil aviation that in turn makes States and airlines stronger as global community partners” – perhaps but, in many respects, it is difficult to see, not just in economic and environmental regulation, but in other aspects such as liberalised traffic rights and ownership and control rules. Or perhaps an air of pessimism has crept in since the publication of Dr Truxal’s book as a result of the Brexit negotiations and President Trump’s increasingly protectionist stance.

Dr Truxal starts with the 1944 Chicago System, which, he argues (as many do), promulgates a national identity based on perceived connotations of state power – a version of ‘extreme’ sovereignty. One of the strengths of Dr Truxal’s book is his background material on various theories of globalisation, with which some aviation lawyers may not be familiar despite the importance of these to

their field and the contrast between the aviation sector and other globalising or globalised sectors. Dr Truxal makes it clear that he is a ‘transformationalist’, ie someone who holds that the nation state is (or should be?) no longer the only or major form of governance and is focused on ‘the emergence of powerful non non-territorial forms of economic and political organisation in the global domain, such as multinational corporations, transnational social movements, international regulatory agencies, etc’. To Dr Truxal the Chicago System is stuck in the Westphalian era of international relations and the key is to move ‘to a new evolutionary stage’. It is posited that the Chicago System challenges the ability of States to address problems that are of a transnational nature as it promulgates national regulation of these global areas of concern. In light of incoherent or lacking international economic and environmental regulation, impetus is provided for the introduction of a more transnational approach to global governance of aviation.

In practice, Dr Truxal stresses the importance of the distinction between sovereignty and competencies, a distinction drawn in particular by Professor Pablo Mendes de Leon, Head of the Institute of Air and Space Law at Leiden University, in a series of articles. States remain responsible for civil aviation and do not give up their sovereignty. What they do is transfer their competencies, especially in relation to technological matters which should be uncontroversial – for example, to ICAO in respect of aircraft safety. The remit of ICAO has recently moved into economic areas, with proposals to develop fair competition safeguards, common principles on consumer protection and a global market-based mechanism for international aviation emissions. The idea appears to be to allow states to retain the illusion of sovereign authority while, in practice, transferring actual governance to international organisations. Dr Truxal endorses this in many spheres of aviation while recognising the logical inconsistency that because ‘no-state and private actors remain heavily, if not entirely, dependent on sovereign states to negotiate, agree and enforce policy’ in a meaningful sense such an arrangement enhances or entrenches state power. Dr Truxal points out that while there are many examples of international organisations governing issues such as safety, to date there has been no transfer of national competences to the international level where economic matters are concerned, despite the expanding remit of ICAO referred to above.

To take one example from the economic sphere of aviation: the current structure of bilateral regulation of ‘fair competition’ is the inclusion by some States of ‘fair competition’ clauses in Air

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Services Agreements, in addition to provisions for ‘settlement of disputes’ and ‘fair and equal opportunity’. It is argued by Dr Truxal that these provisions require a shared understanding of core, objective principles on fairness and a willingness to follow through with enforcement and that the onus to ensure that every State has ‘a fair opportunity’ should be on ICAO. To enhance the Chicago Convention’s core principles, ICAO Assembly adopted Resolution A38-14 ‘Consolidated statement of ICAO continuing policies in the air transport field’ in 2013. It is, however, a ‘soft law’ instrument. As such, it does not impose binding obligations on the ICAO member states and therefore cannot be legally enforced. However, it does put pressure on states to address the fair competition issue and deliver this via national legislation: the onus circles back to action by states.

Perhaps the limits of liberalisation within the current system have been reached. As Dr Truxal notes: ‘attempts to liberalise civil aviation further seem to have slowed or even ground to a halt; some suggest liberalisation is actually rolling back’. The issue is ‘the reality of territorial enforcement’. Professor Brian Havel, Director of the Institute of Air and Space Law at McGill University, advocates discontinuing attempts to work within the constraints of the 1944 Chicago System. Professor Havel advocates that a plurilateral agreement may be the only means truly to globalise the sector: ‘Until the restrictive precepts of the Chicago Convention are rolled back, in the United States and among America’s aviation trading partners, no authentic globalisation of the international aviation system will be possible’. But is this on the cards? Can the industry afford to wait?

Within its own market, the European Union has certainly acted, as Dr Truxal notes (noting its ‘high standards’), though arguably as a supra-state of its own and within the system. Dr Truxal identifies areas that are severely restrictive such as the Regulation 1008/2008 ownership and control rules, but also analyses areas where – at least within the European context – international governance is developing. One example is market regulation and state aid. The

European Commission has identified that, within this ‘new commercial context, it is both important and legitimate that the EU is able to act effectively internationally to safeguard the competitiveness of EU airlines against unfair competition and/or practices wherever they may come from’. For this reason, Regulation 868/2004 was adopted, which provides a framework for prohibiting subsidies to, or unfair pricing by, third country air carriers insofar as those activities cause or threaten to cause a material injury to the Community air transport industry by allowing the investigation of actual or potential injury following a complaint issued on behalf of the EU air transport industry or on the Commission’s own initiative. Another example is passenger protection or compensation, in particular Regulation 261.

As well as the efforts of the EU, Dr Truxal argues that there is ‘far greater awareness of the transnational implications of national laws and of the potential value of transnational co-operation in law’. He follows David J Gerber (Global Competition: Law, Markets, and Globalization [Oxford University Press. 2010]) in identifying three patterns as regards global competition on the international level: (1) greater co-operation between competition regulators, particularly the EU and the US; (2) an increasing role of transnational institutions, such as the OECD and UNCTAD, and (3) a permeating, transnational influence of US antitrust law.

While this sounds encouraging, the issue is that the examples of international co-operation in practice cited by Dr Truxal fall short of this aspiration and there are many significant areas where international civil aviation relations have been fractious, sometimes fractious in the extreme (such as the ongoing Gulf carriers/US dispute). Dr Truxal cites, for example, the recently developed ICAO CORSIA as a high watermark of international co-operation with the potential to displace state action in respect of aviation’s impact on the environment. Other commentators might want to argue that, to the contrary, CORSIA is a compromise with very limited objectives imposed on it precisely by the need to obtain international support. To an extent CORSIA was itself developed as a response to a paradigm case of national (or, at least, regional economic group) legislation attempting to be of international effect and finding itself strongly opposed both on legal grounds and in the political sphere, namely the EU’s attempt to impose the EU ETS on traffic to and from the EU (as opposed to just intra-EU traffic). Dr Truxal holds up the environment as an example of where progress has been made by the global aviation industry but others could equally use the same example as a demonstration of the severe difficulties of achieving anything at international level and the limitations of state power outside the realm of their own sovereignty.

The desire to find examples of states dancing to the suggested mood music of greater international

Dubai International Airport. Dubai International Airport.

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Book ReviewsAfterburner

AEROSPACE / MARCH 2019

A stunning work of encyclopaedic reference un-emotively side-stepping any sense of the Tu-95’s incomparable concept in the death dance of the Cold War which spawned it

possibility was some form of turboprop.At the end of WW2 the Soviet Union had

decamped the development department of the Junkers company into the Nikolay Kuznetsov Design Bureau. This team – said to number 5,000 – had made the greatest progress with such an engine. True, when one of four times the power eventually appeared it carried the designation NK-12 but we are left to imagine how this was ‘magicked’ out of the Junkers Jumo 022.

It is the choice of emphasis in this scholarly work which ultimately arrests the reader. While we are given the thickness of the perspex in the rear-gunner’s cabin, the civilian version which Soviet Premier Khruschev used to such East-West propaganda effect is omitted. While the innumerable sub-types are listed in every detail, the historic impact of the world’s most powerful turboprops and their designer Dr Ferdinand Brandner receive only a brief mention. And the noise level – historically reported as 110dB in the passenger cabin of the Tu-114 – receives little more than a whisper.

A stunning work of encyclopaedic reference un-emotively side-stepping any sense of the Tu-95’s incomparable concept in the death dance of the Cold War which spawned it.

Philip Styles

TUPOLEV Tu-95 and Tu-142By Y Gordon and D Komissarov

Crecy Publishing, 1a Ringway Trading Estate, Shawdowmoss Road, Manchester M22 5LH, UK. 2017. 560pp. Illustrated. £44.95. ISBN 978-1-857803785.

In its provision of photographs by the hundreds, complemented by dozens of the highest quality coloured drawings, of which the ardent aerophile can normally only dream, this volume must rate as exceptional. Revealed are the construction, weapons systems, radars, electronics, spheres of operation of the Tu-95 over land and of its sibling Tu-142 over sea, extensive factual tabulations, Ministry Requirement numbers, even down to who headed the Ministry. This level of often revealing detail continues into the later chapters of operational deployments.

At the outset the Tu-95 had only a single parameter, namely the ability to deliver a nuclear weapon to New York or Washington and return – range was the challenge. It was meeting this overriding parameter which predicated the Tu-95’s uniqueness and it was this parameter which ultimately eliminated the Tu-95’s early competitor, the pure jet Myasishchev Ma-4 ‘Bison’. While subsonic would be a minimum requirement for survival, specific fuel consumption would be dominant. The only

co-operation, or at least following some sort of ideal regulatory regime promulgated by the EU and the US, leads Dr Truxal to some strange and digressive examples, for example a long discussion of competition legislation enacted by the State of Qatar (an ironic choice of example, given developments since the book was published) which is to be lauded because it ‘prohibits anti-competitive business practices in a similar way to European and US jurisdictions’. Incidentally, Dr Truxal doesn’t follow the point but surely it is questionable whether a globalised aviation world will be in a better place if it simply follows US and EU legislation (even if it could bring itself to do that in practice – Brexit is but one example of popular reaction to encroachment on state sovereignty by external agencies).

Does the Chicago Convention adequately reflect the 21st century, global nature of the airline business and transnational nature of the challenges facing it? Probably not. Should it be amended to provide a legal framework that is more open and inclusive, and strengthens ICAO governance? In an ideal world, yes. But the changed conditions of the 21st century have led to the agreement of strategic objectives for ICAO very different from those envisaged over 60 years ago and ICAO governance itself will need to change as its role develops. These are Dr Truxal’s conclusions and surely few

would disagree with him. The problem for ICAO in particular is ‘the difficulty in balancing between maintaining the powers of consent that sovereign States have in the creation of principles and rules of international law – and the need to increase the efficiency of international decision-making, including standard-setting, monitoring compliance, dispute settlement, and enforcement’.

Dr Truxal’s book is an excellent discussion of the challenges facing international aviation as a result of the constraints imposed on it by the Chicago System. His hope – in the absence of any possibility of a completely new system as advocated by Professor Havel – that development of ICAO’s governance may be part of the solution may be sanguine but it is well put and practical. His examples of areas where progress has been made may be overstating the case and in these sections of the book Dr Truxal appears to be working hard to find achievement where others may only see aspiration. However, this is a minor quibble: a regulatory regime that is not fit for purpose is one of the biggest issues facing international aviation today and Dr Truxal’s book will be a valued contribution to the debate as how best to fix it.

Mark Bisset, PartnerClyde & Co LLP

Dr Truxal’s book is an excellent discussion of the challenges facing international aviation as a result of the constraints imposed on it by the Chicago System

Tupolev Tu-142MR ‘Oryol’ (‘Bear J’). DoD.

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AN UNTAKEN ROAD

Small ICBM Hard Mobile Launcher at the National Museum of the United States Air Force. USAF.

Strategy, Technology and the Hidden History of America’s Mobile ICBMsBy S A Pomeroy

Naval Institute Press, 291 Wood Road, Annapolis, MD 21402, USA. 2016. xiv; 287pp. Illustrated. $44.95. ISBN 978-161251-973-9.

When asked to review what is essentially an historical record of a proposed, but not implemented system, I was expecting a somewhat dry and uninteresting book. How wrong could I have been? The book’s unusual starting point is to concentrate on a particular ‘basing mode’ for strategic missiles that was considered and analysed in great depth but never implemented. The book contrasts this ‘basing mode’ against other contemporaneous systems and explores the concurrent technological advances applicable to all the systems and the strategic implications resulting. Yet this approach perhaps provides more insight into the early years of the American nuclear deterrent than many books that concentrate in detail on the various systems fielded during the period.

The book comprises an 11-page introduction followed by ten chapters covering 196 pages, 46 pages of reference notes and a 26-page bibliography, completed by an index. The chapters, closely linked to the reference notes, provide a structure that lends itself to further investigation and research enabling what is an historical narrative to unlock much deeper technical detail. Chapter 1 outlines the framework for the historical narrative that the book will use. It places this framework in the context of American nuclear strategy alongside the technological innovations occurring over the period. All these points are viewed in the light of the basic thesis of the book in concentrating on an unimplemented technology (mobile ICBMs) called by the author “an untaken road”. The next five chapters, 2 to 6, examine mobile ICBM development from the mid 1950s to the end of the 1960s. Chapters 7, 8 and 9 extend this narrative from the 1970s to the 1980s with emphasis on the perceived changes to the nuclear threat, as well as the effect of the Strategic Arms Limitation Talks in reducing the proposals for a gargantuan array of tunnels which would have housed moving, buried missiles. The book’s conclusion is Chapter 10.

A recurring theme throughout the book is the need for a strategic nuclear deterrent to be able to survive a first strike from an aggressor, so as to ensure a sufficiently destructive retaliatory response, to provide a more than credible deterrent. This strategic imperative provides the impetus and goal for the supporting technologies. Yet developments

and breakthroughs within those technologies can themselves influence strategic military decisions. Four general areas result with various technologies interacting and competing within each. These areas are; means of delivery, warhead yield versus weight, delivery navigation and accuracy, and system survivability.

Means of delivery – this is the most obvious and visible change to strategic nuclear systems and all the competing types are chronicled in the book. Initially, long-range bombers were a natural continuation from the bombers of WW2 but evolved to be turbo-jet powered. However, they still retained many of the disadvantages of such systems: slow reaction times (unless constantly kept airborne), long flight times for intercontinental use with air bases impossible to hide and open to attack. Next came early cruise missiles; essentially aircraft without pilots. Still susceptible to the problems of long-range bombers but with greater problems of navigation and control, these quickly became obsolete. Nevertheless, the technology progressed into air launched stand-off missiles systems with much potential but within the time frame covered by the book were never fully developed for strategic use.

Building upon the rocket developments of WW2, the inter continental ballistic missile (ICBM) became the desired means of delivery resulting in the first long-range missiles with liquid-fuelled rocket engines. These weapons provided the shortest possible flight times but rapid response and navigation were still problematic. Although never fully deployed they provided a legacy for the exploration and exploitation of space: manned space flight leading to Apollo and the Moon landings, satellites for communications/Earth surveillance/GPS etc. The next development was long-range ballistic missiles with solid-fuelled rocket engines; they were able to provide the shortest flight times together with rapid response and little or no 24-hour support. Navigation was initially still problematic but solved as the designs evolved. The move to

A recurring theme throughout the book is the need for a strategic nuclear deterrent to be able to survive a first strike from an aggressor

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Book Reviews

AEROSPACE / MARCH 2019

Afterburner

An unarmed Trident II D5 missile launches from the Ohio-class fleet ballistic-missile submarine USS Maryland (SSBN 738) off the coast of Florida. US Navy.

solid propellant rocket motors was also assisted by the development of lighter weight warheads which reduced missile payload. This use of solid propellants was also applicable to submarine launched missiles – initially short-range ballistic missiles that could be launched from oceans nearer to the aggressor. As the technology further evolved, ICBMs could be launched from submarines – is this a re-joining of the untaken road?

Warhead yield versus weight – another fundamental yet hidden technology whose progress can be seen throughout the book, is the development of nuclear warheads. The trail starts with the massive fission warheads available at the end of WW2. As these were developed into smaller, more practical payloads, so the drive to thermonuclear (fission/fusion) warheads once again resulted in large payloads requiring large bombers and missiles. As thermonuclear warheads were themselves optimised and reduced in size, so the delivery means could be reduced in size, ultimately leading to the ability to carry multiple warheads on one missile (‘MIRVing’ progressing naturally from this). Concomitant increases in warhead yield also reduced the need for high accuracy on the target.

Delivery navigation and accuracy – one of the more ‘hidden’ technologies developed during the Cold War was the guidance and navigation of long-range missiles. This culminated in two major systems: the now ubiquitous Global Positioning System (GPS) and, less well-known, inertial guidance systems. The extensive and enthralling

history of this science, primarily of inertial guidance, has been well described in Inventing Accuracy: a Historical Sociology of Nuclear Missile Guidance (The MIT Press. 1990) by Donald MacKenzie, a book heavily referenced in An Untaken Road and one that should be in the library of anyone interested in the history and technology of the nuclear deterrent.

System survivability – whatever systems are deployed, if they are to provide a credible deterrent, they must have the capacity to survive a ‘first strike’. While placing ICBMs in underground silos was an obvious first step, progression in delivery accuracy and warhead yield obviously reduced their survivability. Increased hardening of individual silos or increased numbers of silos helped to counter this (especially in a large country like the US – a luxury never available to the UK) although the eventual outcome would have been land-based mobility – a road not taken.

These dependencies and their interplay over time weave the fabric of this book, on which the author manages to generate an intriguing and enthralling pattern. As an historical narrative the book also covers the people involved, their names and characters together with their positions and interests, this giving an added dimension to readers with a mainly technological background. An essential read for anyone interested in both the history and technology of the nuclear deterrent.

John R PearceCEng FIMechE MRAeS

AEROSPACE GOLF DAYFOR INDIVIDUAL AND CORPORATE MEMBERS

FRILFORD HEATH GOLF CLUB, OXFORDSHIRE / TUESDAY 4 JUNE 2019

Championship heathland golf in the South Oxfordshire countryside

18 hole texas scramble competition

9 hole stableford points competition

Individual and corporate team prizes

Breakfast, lunch, refreshments and afternoon tea

Join us at our 2019 Aerospace Golf Day for some healthy competition with fellow golfers in the aerospace and aviation community.

This event is ideal for networking in a relaxed and informal setting.

Enter a corporate 4-ball team or opt to be teamed up with other individual players.

For further details please apply to:Gail Ward Events ManagerRoyal Aeronautical SocietyT +44 (0)1491 629912E gail.ward@aerosociety.com

An essential read for anyone interested in both the history and technology of the nuclear deterrent