Air Transportation Management,

[Link]. Programme

Air Law, Regulation and

Compliance Management

Course material:

Conventional and Customary International Aviation Law

Module 2

Excerpt from:

Paul Stephen Dempsey, Public International Air Law, (Montreal: McGill

University Institute and Centre for Research in Air and Space Law 2008)
 PUBLIC INTERNATIONAL AIR LAW

CHAPTER I

INTRODUCTION

L
aw establishes the perimeters of acceptable conduct. Law is a
product of public policy, and a means of substituting order for
chaos in social relations. The predictability and stability of law
facilitates economic growth. The uniformity of law across jurisdictions
promotes predictability and stability.

The first Air Law was enacted only a year after the first balloon
went aloft over Paris. An international conference was convened in Paris
only seven years after the Wright Brothers flew a heavier-than-air craft at
Kitty Hawk, and four years after Santos-Dumont flew over France.
From its inception, air transport has been recognized as a technology
inherently international, and thus in need of harmonious treatment by
nation States.

Like few other commercial activities, an airline embodies the

national symbol of the State whose flag it flies.1 Its existence, and its
routes and other commercial activities, are a product of national
oversight and regulation.2 For some nations, aviation is a symbol of
national aspirations of pride, prestige and global penetration.

Among the most important infrastructure industries is aviation—

important for purposes of facilitating commerce, communications and
national defense.3 The shrinking of distance and time made possible by
the spectacular technological breakthroughs of international aviation has

1 Under
" substantial ownership and effective control" requirements included in many
bilateral air transport agreements, an airline flies the flag of the State in which it is licensed.
This contrasts sharply with the "flags of convenience" principle dominant in international
maritime law. Paul Stephen Dempsey & Lisa Helling, Oil Pollution by Ocean Vessels - An
Environmental Tragedy: The Legal Regime of Flags of Convenience, Multilateral Conventions and
Coastal States, 10 DEN. J. INT'L L. & POL'Y 37 (1980); Paul Stephen Dempsey, Compliance and
Enforcement in International Law - Oil Pollution of the Marine Environment by Ocean Vessels 6
NW. J. INT'L L. & BUS. 459 (1984).
2
PAUL STEPHEN DEMPSEY, ROBERT HARDAWAY & WILLIAM THOMS, AVIATION LAW &
REGULATION (Butterworth1993).
3 OLIVER LISSITZYN, INTERNATIONAL AIR TRANSPORT AND POLICY 18-19, 38 (1942); PAUL

STEPHEN DEMPSEY & WILLIAM THOMS, LAW AND ECONOMIC REGULATION IN

TRANSPORTATION ix (Quorum 1986).

2
 INTRODUCTION

made the planet noticeably smaller, and brought homo sapiens and their
vastly different cultures closer. The speed and range of large commercial
aircraft also make aviation a predominantly international adventure.
Aviation contributes far more to the success of national economies and
global trade than it produces for investors.

From the outset, States have played an active role in the growth
and development of their airlines. Most governments recognize the
important role that their air carriers play in facilitating communications,
trade, tourism, and national pride, as they "show the flag" around the
world.4 Air transportation is an essential component of the infrastructure
of global trade. Airlines create wealth far beyond their facial value in the
wide array of industries and communities reliant upon it. As a
consequence, most airlines traditionally were viewed as "public utility"
types of enterprises, leading governments to impose public service
obligations beyond those which would be provided by companies in a
"free" market. Airlines cannot operate without airports and air
navigation services. Hence, airlines, airports, and air navigation services
have long been governmentally regulated, owned and/or subsidized,
though increasingly, they are becoming corporatized and privatized.

Because so much of aviation is inherently international in scope,

early in its development the world community assembled and drafted
major multilateral conventions attempting to unify international rules

4 Many factors have shaped the history of mankind. Among these factors have been
transportation and communications -- not causes, but certainly essential conditions of
human progress.
The existence of facilities for human migrations has made possible the expansion of
the more highly developed races, tribes and nationalities, and the submergence of
the less advanced ones. . . .
Improved means of world intercourse have also facilitated the dissemination and
migration of cultural, as distinguished from biological forms . . . . Adequate means
of communication and transportation are an essential condition of the progressive
economic and political integration of mankind.
OLIVER LISSITZYN, INTERNATIONAL AIR TRANSPORT AND NATIONAL POLICY 18-19 (1942).
Rapid communications and transportation facilitate commercial intercourse
between the various parts of a single nation and between the various parts of a
single nation and between nations. Hence, the possession of a rapid means of
communications such as air transport may prove an important competitive asset in
international trade.
Id. at 38.
Transportation is the most important industry in the United States so far as
employment, investment and impact on other industries is concerned. It is the
fundamental infrastructure which facilitates the free flow of commerce.
PAUL STEPHEN DEMPSEY & WILLIAM THOMS, LAW AND ECONOMIC REGULATION IN
TRANSPORTATION ix (Quorum 1986).
 PUBLIC INTERNATIONAL AIR LAW

governing safety and navigation and other aspects of civil aviation to

ensure protection of the public. From the inception of commercial
aviation, airlines have depended upon the economic, technological, and
infrastructure support of their governments. After World War I,
government subsidies and mail contracts sustained the economic
viability of commercial aviation, built the runways and air navigation
facilities, and provided the capital for technological research and
development.5 With Charles Lindberg’s flight across the Atlantic in
1927, interest in international aviation accelerated. The United States
preferred private ownership of airlines to State ownership, although for
four decades protected airlines from the ravages of destructive
competition through the mechanism of government regulation. With the
promulgation of the Civil Aeronautics Act of 1938, the U.S. government
would supervise rates, routes and mergers, acquisitions and other
business practices. Though economic regulation was the response of the
U.S. to the economic collapse of the airline industry precipitated by the
Great Depression, in Europe, governments would nationalize failing
airlines. In Europe, government ownership prevailed as the model for
managed competition.

As World War II was drawing to a close, the United States invited

the world community to a conference in Chicago to discuss to rules to
govern international civil aviation. In the Chicago Convention of 1944,
the world community reaffirmed a basic principle that had been the
foundation of its predecessor, the Paris Convention of 1919: “The
Contracting States recognize that every State has complete and exclusive

5 Anthony
Sampson observed:
[T]he pilots and entrepreneurs soon discovered that they could not fly without their
government's support, and that even within their own country they could not make
their airline pay without subsidies or the air mail contracts which governments
awarded. In every country the soaring ambitions of the aviators and their
financiers came up against the controls and military designs of their governments. .
. . [T]he European governments were determined from the beginning to harness
aviation to their own needs, and particularly to bind their colonies and overseas
settlements more closely to the home country. The new "airlines" could not avoid
being dependent on the governments which subsidized them, merged them or
controlled their routes.
ANTHONY SAMPSON, EMPIRES OF THE SKY: THE POLITICS, CONTESTS AND CARTELS OF WORLD
AIRLINES 24 (1984). International civil aviation enjoyed robust growth after the end of
World War I. The cessation of hostilities provided the impetus for the development of
aviation for transport purposes; large numbers of military aircraft and pilots were available
for conversion to civilian use, governments and businesses realized the potential of
aviation for expeditious transport and communications, and postwar conferences
generated a need for official travel. BETSY GIDWITZ, THE POLITICS OF INTERNATIONAL AIR
TRANSPORT 37 (1980). SEE GENERALLY, PAUL STEPHEN DEMPSEY & WILLIAM THOMS, LAW
AND ECONOMIC REGULATION IN TRANSPORTATION 26-27 (Quorum 1986).

4
 INTRODUCTION

sovereignty over the airspace above its territory.”6 The Chicago

Convention established the International Civil Aviation Organization
[ICAO] to facilitate safety and navigation, and to provide uniformity of
standards across borders.7 As aviation evolved, additional issues came
within ICAO’s ambit – security and environmental protection, for
example. But the identification of the routes on which carriers would be
permitted to operate, how many carriers could be designated to serve
particular markets, and what level of capacity would be offered was left
outside the Chicago Convention, to the bilateral negotiations between
the involved States, many of which initially were modeled after the U.S.
– U.K. Bermuda air transport agreement of 1946. The issue of the
appropriate level of rates initially was left to the International Air
Transport Association [IATA], the trade association of the world’s
airlines.

As in all things economic, legal and political, differing cultural

perceptions and policy orientations have led to conflict and
confrontation between governments. Friction over aviation matters was
largely avoided during the first three decades following World War II,
when the United States regulated the domestic operations of its privately
owned carriers, and participated in an international regulatory regime
characterized by consensus and cooperation. But the stability that had
characterized the Bermuda-ICAO-IATA regime after World War II came
to an abrupt end in the late 1970s. In the U.S., the Carter administration,
encouraged by some initial successes with domestic airline deregulation,
embraced an “open skies” policy of trading foreign access to interior U.S.
markets for guarantees of greater pricing flexibility. With promulgation
of deregulation legislation (the Air Cargo Deregulation Act of 1977, the
Airline Deregulation Act of 1978, and the International Air
Transportation Competition Act of 1979), the role of the U.S. government
over commercial aviation was much reduced, and market forces came to
dominate the destiny of the industry. Beginning in the late 1970s, the
United States began to export its deregulation ideology abroad. By the
early 1990s, the European Union had created a free internal European
market in air services.8

A second wave of liberalization began in the early 1990s as the

United States began to exchange antitrust immunity and unlimited
access to interior U.S. cities for even more liberal “open skies” bilaterals.

6
Convention on International Civil Aviation, 61 Stat. 1180 (1944) [hereinafter cited as
Chicago Convention], Art. 1.
7 BRIAN F. HAVEL, IN SEARCH OF OPEN SKIES 123-24 (Kluwer 1997).
8 See PAUL STEPHEN DEMPSEY, EUROPEAN AVIATION LAW (Kluwer 2004).
 PUBLIC INTERNATIONAL AIR LAW

The antitrust immunity so conferred allowed the creation of global

airline alliances, free to engage in such traditionally prohibited
anticompetitive areas as pooling of revenue, and price-fixing.
Competition was now to be fostered via anticompetitive means.

Meanwhile, across the Atlantic, the European Union was

liberalizing with all deliberate speed.9 Privatization began to replace
government ownership, and competition began to supplant economic
regulation.

International aviation, where many of the carriers traditionally

have been owned or heavily subsidized by their governments, or at least
regulated in a regime of managed competition, and where strict
territorial sovereignty over a State’s airspace is universally recognized,
has always been subjected to a strong governmental presence. Many
international air carriers have been operated for purposes of prestige or
national security, rather than for economic reasons which inspire
capitalist efficiency and consumer welfare.

Governments remain heavily involved in aviation. Yet an

international organization – ICAO – also has been established to
harmonize domestic laws into a unified international approach to issues
important to safety, security and the environment. Airlines must
traverse quite a complex political and legal labyrinth before passengers
can step aboard the aircraft for an international flight.

Though commercial issues have been relatively tempestuous,

issues surrounding safety and security have been less controversial. This
has enabled ICAO to achieve impressive levels of global uniformity.
Moreover, this is an area where sovereignty has been relaxed in favor of
cooperation and harmonization of law across borders.

This book addresses Public International Air Law in its many

forms – from customary and conventional International Law to domestic
law. In fact, much of Air Law is domestic law that is required under the
Chicago Convention to be promulgated consistently with ICAO’s
Standards and Recommended Practices [SARPs]. Thus, the sources of
Public International Air Law are:

· Multilateral Conventions

9 See Paul Stephen Dempsey, Competition in the Air: European Union Regulation of Commercial

Aviation, 66 J. AIR L. & COM. 979 (2001).

6
 INTRODUCTION

· ICAO Standards and Recommended Practices

· Bilateral Agreements (e.g., Traffic Rights, Safety, Security)
· Customary International Law
· Intergovernmental decisions and regulations (e.g., those of the
European Union)
· National Legislation and Regulation
· Administrative Practice and Procedure
· Contracts (e.g., air carrier alliance agreements, airport agreements)
· Judicial Opinions; jurisprudence of courts interpreting all the
above in cases and controversies brought before them

There is some dispute in the academic literature as to whether the

proper term is “Air Law”, or “Aviation Law”. “Aeronautical Law”. This
author has used the terms Air Law and Aviation Law interchangeably.
The term Air Law apparently was coined by Professor Ernest Nys of the
University of Brussels a year before the Wright Brothers flew at Kitty
Hawk, North Carolina.10 Indeed, the concept of air has spawned a wide
range of terminology to describe various components of air transport –
airlines, airports, air freight, air traffic control, air navigation, and so
forth. Yet some commentators, such as Professor Ronald Bartsch, assert
that Air Law is too broad a term; that it might embrace the use of the
airwaves for broadcast communications, for example, and that therefore
the term Aviation Law would be preferable. 11 But Professor Milde
disagrees: “From the beginning of the legal thinking relating to ‘air law’
it was obvious that the term was to be used exclusively for the regulation
of such social relations in the air space that are related to or generated by
the aeronautical uses of that space. None of the early authors thought to
include under the term ‘air law’ also the regulation of wireless
transmissions or any other aspects of the propogation of electromagnetic
waves through the space; neither did they consider the issues of the use
of wind power to generate electricity.” 12 The Chicago Convention, which
created the International Civil Aviation Organization is, after all, the
Convention on International Civil Aviation. Noneheless, we find the
debate highly academic and, ultimately, of little consequence, and use
both phrases interchangeably.

One final issue is whether Air Law (or Aviation Law, if you prefer)
is a sufficiently different subject from other areas of the law to warrant

10 MICHAEL MILDE, INTERNATIONAL AIR LAW AND ICAO 1 (Eleven 2008).

11
See e.g., RONALD I.C. BARTSCH, AVIATION LAW IN AUSTRALIA 22-25 (Thompson Reuters 4th
ed. 2013).
12 MICHAEL MILDE, INTERNATIONAL AIR LAW AND ICAO 1 (Eleven 2008).
 PUBLIC INTERNATIONAL AIR LAW

categorization as a separate discipline. True, much of Air Law is a part

of other areas of law, and exists in a broader legal normative framework.
Air Law can be found in various areas of public law (e.g., Constitutional
Law, Administrative Law, Criminal Law, Antitrust, and Labor Law) and
private law (e.g., Torts, Contracts, and Property).13 It is true, to be an
aviation (or air) lawyer, one needs to have a command of many of the
established disciplines of law.

Legal historian Professor Stuart Banner declares Air Law dead,

observing the declining number of U.S. programs in Aviation Law, or
Law Professors teaching it: “Air law ceased to be a useful category when
the airplane was no longer a novelty.” 14 Nonetheless, there are volumes
of treaties, statutes, regulations, and jurisprudence which is unique to
aviation in all its forms. This is particularly true in Public International
Air Law. On this issue, your author sides with Professors Havel and
Sanchez, who write: “[T]o legal conservatives who may be suspicious of
sui generis bodies of law that depart from the ideal of a set of
foundational principles covering all of international commercial aviation
offers a compelling resonse as to why it can and should support a
separate body of law: it is a massive industry, heavily regulated,
structurally borderless, and treated by governments (e.g., through
creaetion of a separate United Nations (U.N.) organ to frame common
global aviation rules) not as an ordinary part of international trade but as
singular and exceptional.”15

As the ensuing Chapters reveal, there is much about Public

International Air Law that is unique to aviation. The early portions of
this book are devoted to a review of the historical evolution of Public
International Air Law. Chapter II provides a historical overview of the
development of customary International Air Law. Chapter III examines
the Chicago Convention’s major codifications of substantive law, and the
administrative powers and jurisdiction of ICAO. Chapters IV through
VII review issues of safety, navigation, security, and airports,
respectively. The latter Chapters of this book address issues over which
there is relatively less consensus – environmental regulation (in Chapter
VIII) and commercial airline traffic rights (in Chapters IX and X). We
then (in Chapter XI) examine mechanisms for the resolution of
international aviation disputes. We conclude (in Chapter XII) with a

13 RONALD I.C. BARTSCH, AVIATION LAW IN AUSTRALIA 25-30 (Thompson Reuters 4th ed.
2013).
14
STUART BANNER, WHO OWNS THE SKY? 224 (Harvard 2008).
15 BRIAN F. HAVEL & GABRIEL S. SANCHEZ, THE PRINCIPLES AND PRACTICE OF
INTERNATIONAL AVIATION LAW 5(Cambridge 2014).

8
 INTRODUCTION

look at the intersection of Air Law and Space Law. We begin our
examination of this complex process with a chronology and explanation
of the international regulation of air transport, its origin, history and
development.
 PUBLIC INTERNATIONAL AIR LAW

CHAPTER II

MULTILATERAL CONVENTIONS

SYNOPSIS

I. INTRODUCTION
II. AVIATION TECHNOLOGY: WAR & PEACE
III. EARLY ATTEMPTS AT AIR TRANSPORT REGULATION
IV. THE EVOLUTION OF INTERNATIONAL AIR LAW
A. CUSTOMARY INTERNATIONAL LAW
B. THE TREATY OF VERSAILLES
C. THE CONVENTION RELATING TO THE REGULATION
OF AERIAL NAVIATION (PARIS CONVENTION OF 1919)
D. THE MADRID AND HAVANA CONVENTIONS
E. THE CONVENTION ON INTERNATIONAL CIVIL
AVIATION (THE CHICAGO CONVENTION OF 1944)
F. THE ANTARTIC TREATY OF 1959
G. THE OUTER SPACE TREATY OF 1967
H. THE LAW OF THE SEA CONVENTION OF 1982
V. AIR LAW IN THE 21st CENTURY
VI. SUMMARY & CONCLUSIONS

I. INTRODUCTION §

§ The author would like to thank Andrea J. DiPaolo, Doctoral candidate, McGill University
Institute of Air & Space Law, for her assistance in the preparation of this chapter.

10
 INDEX

T
he landscape of aviation is inherently international. Thus, it is
not at all surprising that nations would attempt to establish
universal and uniform laws governing air transport. Aviation
therefore has been the subject of a number of international legal
conferences, which has resulted in multilateral agreements in both Public
and Private International Law governing such issues as air safety and
navigation, security, sovereignty, transit and commercial traffic rights,
and liability. The following is a list of the major international aviation
conventions (with the Public International Air Law agreements in bold):

· Paris Convention of 1919 (addressing safety and

navigation)
· Warsaw Convention of 1929 (addressing carrier liability to
passengers and shippers)
· Rome Convention of 1933 (addressing aircraft operator
liability for surface damage)
· Chicago Convention of 1944 (addressing safety and
navigation)
· Geneva Convention of 1948 (addressing aircraft
registration)
· Rome Convention of 1952 (addressing aircraft operator
liability for surface damage)
· Tokyo Convention of 1963 (addressing offenses on
board aircraft)
· Hague Convention of 1970 (addressing aircraft
hijacking)
· Montreal Convention of 1971 (addressing aircraft and
air navigation security)
· Montreal Protocols of 1975 (amending the Warsaw
Convention)
· Montreal Convention of 1999 (addressing carrier liability
to passengers and cargo)
· Cape Town Convention of 2001 (addressing financial
interests in aircraft)
· Montreal Conventions of 2009 (addressing aircraft
operator liability for surface damage)
· Beijing Convention and Protocol of 2010 (addressing
aviation security)
· Montreal Protocols of 2014 (amending the Tokyo
Convention)1

1 Theseand other Public and Private International Air Law agreements are compiled in
XXX(1) Annals of Air & Space L. (2005).
 PUBLIC INTERNATIONAL AIR LAW

The World Wars have been catalysts for multilateral aviation

agreements. At the end of the First World War, the major aviation
powers drafted the first multilateral air transport agreement – the
Convention for the Regulation of Aerial Navigation of 1919 [the Paris
Convention], which, inter alia, confirmed State sovereignty over their
airspace.

As World War II was drawing to a close, the United States invited

the world community (absent the Axis powers) to attend a conference in
Chicago. Fifty-two of the world's nations met in Chicago from
November 1 to December 7, 1944, and drafted the Convention on
International Civil Aviation of 1944 [the Chicago Convention]. The
Chicago Convention established the International Civil Aviation
Organization [ICAO], a specialized agency which became part of the
United Nations family, headquartered in Montreal. Virtually the entire
global aviation community of States has become ICAO members.

ICAO has been highly successful in promulgating "International

Standards and Recommended Practices", harmonizing safety and
navigation in air transportation. Areas addressed by ICAO include
personnel licensing, rules of the air, aeronautical meteorology, charts,
units of measurement, operation of aircraft, airworthiness, aeronautical
telecommunications, air traffic services, search and rescue, accident
investigation, aircraft noise and emissions, security, and satellite
navigation.2 ICAO also has been the forum for negotiation of most of the
world's major multilateral aviation conventions, in areas such as carrier
liability for death, injury, loss and damage, and aviation security,
hijacking and terrorism.3

II. AVIATION TECHNOLOGY: WAR & PEACE

George Orwell wrote, "We were once told that the aeroplane had
'abolished frontiers.' Actually it is only since the aeroplane became a
serious weapon that frontiers have become definitely impassable."4 War
was very much in the minds of the delegates at the Paris Convention of
1919 and the Chicago Convention of 1944, which produced the two
organic conventional international law documents of civil aviation in the

2
See PAUL STEPHEN DEMPSEY, LAW & FOREIGN POLICY IN INTERNATIONAL AVIATION 273-95
(Transnational 1987).
3
See Paul Stephen Dempsey, Aviation Security: The Role of Law in the War Against Terrorism,
41 COLUM. J. TRANSNAT'L L. 649 (2003).
4 George Orwell, You and the Atomic Bomb, Tribune, Oct. 15, 1945; reproduced at

12
 INDEX

20th century.

The military applications of aviation technology were identified in

the earliest days of flight. The use of aircraft as instruments of war has
been a catalyst for international legal prescriptions on their deployment.
In 1784, a year after the first recorded manned free flight in a hot-air
balloon over Paris, the French army made the first military application of
aviation, observing their Austrian adversaries from a balloon.5 In the
1860s, balloons also became a medium of military reconnaissance during
the American War Between the States. In 1870-71, as Prussians besieged
Paris, the French used balloons to ferry passengers and mail out of the
city.6 The British army developed its own balloon in 1878. The French
army attached an electric motor to an airship in 1884.7

The first multilateral effort to regulate military uses of airspace

was an agreement concluded in 1898 between Germany, Italy and
Austria-Hungary which specified the conditions under which military
balloons and dirigibles could cross their national boundaries. The
following year, the Hague Convention of Land Warfare prohibited the
launching of explosives from the air for five years.8 This prohibition was
reaffirmed in the Hague Convention on Land and Naval Warfare of
1910, though widely ignored during the ensuing Great War.9

The first heavier-than-air craft was a glider, flown in England in

1853.10 Nonetheless, the inauguration of modern aviation is usually
attributed to a 20-second 120 foot flight by the Wright Brothers at Kitty
Hawk, North Carolina, at 10:35 on the morning of December 17, 1903.11
The Wright Brothers proceeded to carry the first air freight (a bolt of

5
The first manned free flight was by Pilatre de Rozier and the Marquis d'Arlandes from a
seven-story blue-and-gold hot-air balloon which rose 3,000 feet above Paris and flew some
five miles, on November 21, 1783. The balloon was designed by Joseph and Etienne
Montgolfier. The first hydrogen balloon was also flown in 1783. PAUL STEPHEN DEMPSEY &
LAURENCE GESELL, AIR TRANSPORTATION: FOUNDATIONS FOR THE 21ST CENTURY 43 (Coast
Aire 3rd ed. 2010).
6 PAUL LARSEN, JOSEPH SWEENEY & JOHN GILLICK, AVIATION LAW 2 (Transnational 2006).
7 PAUL STEPHEN DEMPSEY & LAURENCE GESELL, AIR TRANSPORTATION: FOUNDATIONS FOR

THE 21ST CENTURY 23-31 (Quorum 3rd ed. 2010).

8M
ICHAEL MILDE, INTERNATIONAL AIR LAW AND ICAO 7 (Eleven 2008).
9 PAUL LARSEN, JOSEPH SWEENEY & JOHN GILLICK, AVIATION LAW 35 (Transnational 2006).
10 Gliders crashed and killed their pilots in Germany in 1896, and in England in 1899. PAUL

STEPHEN DEMPSEY & LAURENCE GESELL, AIR TRANSPORTATION: FOUNDATIONS FOR THE 21ST
CENTURY 31-33 (Quorum 3rd ed. 2010).
11 In 1905, Wilbur Wright flew his aircraft for 38 minutes and more than 24 miles. PAUL

STEPHEN DEMPSEY & LAURENCE GESELL, AIR TRANSPORTATION: FOUNDATIONS FOR THE 21ST
CENTURY 33-35 (Quorum 3rd ed. 2010).
 PUBLIC INTERNATIONAL AIR LAW

silk), from Dayton to Columbus, Ohio, in 1908. 12 The first flight across
the English Channel followed the next year.13

The U.S. army invited bids for a military bi-plane in 1908.14 The
British army formed its first battalion for conducting air war in 1911. 15
By 1914, Germany had the largest number of military aircraft of any
nation.16 In 1918, the U.K. became the first nation to create an air force,
the Royal Air Force.17 William Boeing formed an aircraft company in
1916, which in 1921 won a $1.5 million contract for military aircraft, the
largest awarded up to that time. 18 U.S. involvement in World War II
began and ended in aviation, from the Japanese attack on Pearl Harbor
in December 7, 1941, until a U.S. B-29 aircraft dropped an atomic bomb
on Nagasaki, Japan, on August 9, 1945. Investment by the military in
research and development has been a catalyst for many of the
technological breakthroughs in aircraft design and engineering.

III. EARLY ATTEMPTS AT AIR TRANSPORT

REGULATION

The French have always claimed aviation as theirs. Observing that

paper would rise in a chimney, two papermakers from Lyon - the
Montgolfier Brothers - constructed the first hot air balloons. The first
recorded manned free flight was by Jean de Rozier from a balloon which
rose 1,000 feet above Paris and flew some five miles in 25 minutes, on
November 21, 1783.19 The law was soon to follow.20 On April 23, 1784,

12
Tony Janus was the first to fly passengers in the United States, a twenty minute trip
across the 19 miles of Tampa Bay in 1914. NAT'L COMM'N TO ENSURE A STRONG
COMPETITIVE AIRLINE INDUSTRY, CHANGE, CHALLENGE AND COMPETITION 4 (1993). The fare
was $5 one-way for a gross weight, including baggage, up to 200 pounds, with a charge of
six cents for each additional pound. CHRONICLE OF AVIATION 114 (Bill Gunston ed. 1992).
Regular commercial service did not begin in the United States until 1918, when the mail
began to fly from Washington, D.C., to Philadelphia to New York. America's first
international service began in 1919, with a flight from Key West, Florida, to Havana, Cuba.
Chronicle of Aviation 173 (Bill Gunston ed. 1992). The first nonstop transatlantic flight was
flown by Charles Lindbergh in 1927. Id. at 241. After that, international aviation grew
robustly. U.S. traffic grew from 6,000 passengers in 1926, to 1.5 million in 1938, to 49
million in 1958, to 275 million in 1978, to 466 million in 1990. NAT'L COMM'N TO ENSURE A
STRONG COMPETITIVE AIRLINE INDUSTRY, CHANGE, CHALLENGE AND COMPETITION 4 (1993).
13 Louis Bleriot was the pilot. CHRONICLE OF AVIATION 71 (Bill Gunston ed. 1992).
14
CHRONICLE OF AVIATION 60 (Bill Gunston ed. 1992).
15 Id. at 89.
16
Id. at 116.
17 Id. at 156.
18
Id. at 136, 187.
19 ROBERT KANE, AIR TRANSPORTATION 2-9 (12th ed. 1996).
20Elmar M. Giemulla, Chicago System: Genesis and Main Characteristics, in INTERNATIONAL

14
 INDEX

the first Air Law was promulgated when the Paris police issued a
directive prohibiting balloon flights without prior authorization. 21 In
1852, Henri Giffard installed a steam engine on a balloon to move a
propeller with a directed arm, creating the first dirigible airship, and
began moving passengers over France.22

The French were dubious of the Wright Brothers' claim that they
had flown a heavier-than-air aircraft in 1903, for they were unwilling to
demonstrate their invention publicly, ostensibly in order to first perfect
their patents. Even before Alberto Santos-Dumont's flight of a dirigible
airship at Paris in 1903, or a heavier-than-air aircraft in 1906, the French
jurist Paul Fauchille in 1901 urged adoption of a code of air navigation
by the Institut de Droit International. But he argued against airspace
sovereignty, contending that the "air is free."23 Because the air cannot be
appropriated, he argued, real property of the air is impossible, and the
same principle prescribes State assertions of dominance over it; airspace
therefore is res communes, and l'air est libre. He argued that the right of
States to control flights over their sovereign territory was proper only if
necessary to advance their inherent "right of self preservation."24

Earlier scholars also had argued for open skies. In 1532, Spain's
Francisco de Vitoria advocated a general right of trade and commerce
between nations; territorial sovereignty, he argued, was limited by the
general right of transit and commerce for the benefit of all nations. In
1609, Holland's Hugo Grotius advocated a general right to commerce,
claiming that "every nation is free to travel to every other nation and to
trade with it."25 In the late 17th century, Germany's Samuel von
Pufendorf argued that "man's sovereignty in the air was limited by the
ability for effective control."26

The contrary view was articulated by the Swiss jurist Emeric de

Vattel in 1757, that nations are free and independent, and enjoy the
exclusive right to sovereignty over their territory, and may "prohibit

AND EU AVIATION LAW 6 (Wolters Kluwer 2011).

21
I. H. PH. DIEDERIKS-VERSCHOOR, AN INTRODUCTION TO AIR LAW 2 (6th ed. 1997).
22 PAUL LARSEN, JOSEPH SWEENEY & JOHN GILLICK, AVIATION LAW 2 (Transnational 2006).
23 Elmar M. Giemulla, Chicago System: Genesis and Main Characteristics, in
INTERNATIONAL AND EU AVIATION LAW 4 (Wolters Kluwer 2011).
24
John Cobb Cooper, Backgrounds of International Public Air Law, 1 YEARBOOK OF AIR AND
SPACE LAW 3, 11 (1967).
25 John Cobb Cooper, Backgrounds of International Public Air Law, 1 YEARBOOK OF AIR AND

SPACE LAW 3, 4-6 (1967).

26 Quoted in Stephen Schrewsbury, September 11th and the Single European Sky: Developing

Concepts of Airspace Sovereignty, 68 J. AIR L. & COM. 115, 126 (2003).

 PUBLIC INTERNATIONAL AIR LAW

entrance into his territory either of all foreigners in general or to certain

persons . . . according as the welfare of the State may require." 27 Vattel's
view would prevail at Paris, and later, at Chicago, ultimately
crystallizing as a norm of customary international air law.

The first international aviation agreements were concluded in late

in the 19th century. As noted above, in 1898, Germany, Italy and Austria-
Hungary concluded an agreement addressing the crossing of borders
with military balloons. The following year, the multilateral Hague
Declaration prohibited the “launching of projectiles and explosives from
balloons, and other methods of similar nature.” 28

In 1908, the French government protested to the German

government about the number of German balloons drifting over the
French border. At least ten German balloons landed in France carrying
more than 25 Germans, at least half of whom were military officers. 29 In
December of that year, the French invited the European powers to Paris
to address the regulation of air navigation. Despite the French protests,
German balloons continued to drift over French soil in 1909. The French
government responded by directing local authorities to hold balloons for
the collection of import duties and to obtain information concerning the
purpose of the flight.30 The violation of French air space led France to
call for an international conference to address the problem.

The first major multilateral effort at lawmaking in international

aviation was the Paris Conference of 1910. The conferees met from May
10 until June 29, 1910. Though it concluded without adopting a
Convention, the conference laid the foundation for the Paris Convention
of 1919. In particular, the 1910 Conference produced a draft convention
addressing aircraft nationality and registration, navigation, crew
licenses, logbooks, radio equipment, prohibited zones and cabotage.
Though the conference derailed over a dispute between the Germans
and French over whether the same standards should be applied both to
domestic and international aircraft, the 1910 Paris conference produced
the international agreement that usable air space above the land and

27 John Cobb Cooper, Backgrounds of International Public Air Law, 1 YEARBOOK OF AIR AND
SPACE LAW 3, 6-7 (1967).
28 Elmar M. Giemulla, Chicago System: Genesis and Main Characteristics, in INTERNATIONAL
AND EU AVIATION LAW 6 (Wolters Kluwer 2011).
29 MICHAEL MILDE, INTERNATIONAL AIR LAW AND ICAO 8 (Eleven 2008).
30 John Cobb Cooper, Backgrounds of International Public Air Law, 1 YEARBOOK OF AIR AND

SPACE LAW 3, 12 (1967).

16
 INDEX

water of a State is part of its territory. 31 There was clear consensus that
territorial airspace extended upward as high as then practical for flight,
and there was no general right of innocent passage through such
airspace by foreign aircraft. Hence, national sovereignty over the
airspace above a State's territory was a recognized legal principle well
before the outbreak of World War I.32

The legal and diplomatic framework within which international

air transport has since developed is based upon three simple, yet
fundamental, principles:

1. each State has sovereignty and jurisdiction over the air space
directly above its territory (including territorial waters);
2. each State has complete discretion as to the admission or non-
admission of any aircraft to the air space under its sovereignty;
and
3. air space over the high seas, and over other parts of the earth's
surface not subject to any State's jurisdiction, is free to the
aircraft of all States.

Although of relatively recent origin, these principles are now

among the least disputed in international law. 33 These principles of air
sovereignty insured that national governments would play a dominant
role in the development of international civil aviation. 34

After the Paris conference of 1910, the United Kingdom enacted

the Aerial Navigation Acts, which declared prohibited zones along
British coasts. Regulations addressing aircraft were imposed by Berlin
and the province of Brandenburg, Germany. In 1912, Russia decreed an
absolute prohibition against flying over its western borders. In 1913,
France and Germany concluded the first bilateral air transport

31 John
Cobb Cooper, Backgrounds of International Public Air Law, 1 YEARBOOK OF AIR AND
SPACE LAW 3, 13 (1967).
32 [Link]. DIEDERIKS-VERSCHOOR, HISTORY AND DEVELOPMENT OF AIR LAW 9-10 (1997).
33 OLIVER LISSITZYN, INTERNATIONAL AIR TRANSPORT AND NATIONAL POLICY 365 (1942).
34 Salacuse, The Little Prince and the Businessman: Conflicts and Tensions in Public International

Law, 45 J. AIR L. & COM. 807, 814 (1980). Professor Lowenfeld points out that, unlike most
other industries, "aviation directly engages the prestige, the fascination, and the national
interest of almost all countries … [and] is a serious problem in international relations."
Andreas Lowenfeld, A New Take-Off for International Air Transport, 54 FOREIGN AFF. 36
(1975). Another commentator concurred: "We shall have a false idea of air transport
history. . . if we think of it as purely a commercial enterprise, or neglect the extent to which
political considerations have been controlling in shaping its course." OLIVER LISSITZYN,
INTERNATIONAL AIR TRANSPORT AND NATIONAL POLICY vi (1942).
 PUBLIC INTERNATIONAL AIR LAW

agreement.35 As World War I began, in 1914, the United States forbade

flights over the Panama Canal, and Switzerland became the first state to
prohibit all foreign aircraft from its skies, with Sweden following suit in
1916.36

III. THE EVOLUTION OF INTERNATIONAL AIR LAW

A. CUSTOMARY INTERNATIONAL LAW

Customary international law is a component of international law

recognized under Article 38(c) of the Statute of the International Court of
Justice. In order to constitute binding customary international law, both
elements of State practice and opinio juris must be satisfied.37 To satisfy
the element of State practice, a generality of States must comply with the
practice (compliance by all States is not necessary).38 As stated by
Professor Bin Cheng, “[O]pinio juris is the view that is held by, or that
may be said, with effect opposable to that state, to be held by, a state as
to what the law is at any given moment.”39 This holds true of customary
public international air law as a subset of customary international law
generally.

The International Court of Justice has recognized that a treaty

provision can accurately reflect customary international law under two
circumstances: when it codifies existing customary international law, or
when such provision crystalizes emerging customary law.40 For
example, the principle of sovereignty over airspace is an accepted
principle of customary international law that is also embodied in the
Chicago Convention. By the time the Chicago Convention was drafted,
this concept was already recognized by customary international law.41
Subsequent adherence to the rule has only served to strengthen its

35 Elmar M. Giemulla, Chicago System: Genesis and Main Characteristics, in INTERNATIONAL

AND EU AVIATION LAW 8 (Wolters Kluwer 2011).
36 WYBO P. HEERE, PROBLEMS OF JURISDICTION IN AIR AND OUTER SPACE (1999).
37 Statute of the International Court of Justice, 18 April 1946, 59 Stat. 1031, art 38(c).
38 Bin Cheng, Custom: The Future of General State Practice in a Divided World, in R. ST.J.
MACDONALD & DOUGLAS M. JOHNSTON, EDS, THE STRUCTURE AND PROCESS OF
INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY DOCTRINE AND THEORY 485, at 549
(Dordrecht: Martinus Nijhoff Publishers, 1986).
39
Id. at 548.
40
North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of
Germany v Netherlands), [1969] ICJ Rep. 3 at 25; VAUGHN LOWE, INTERNATIONAL LAW 83
(Oxford: Oxford University Press, 2007).
41 BIN CHENG, THE LAW OF INTERNATIONAL AIR TRANSPORT 120 (Stevens, 1962). The broad
acceptance of this rule is recognizable in its inclusion in a series of prior international
instruments (Paris Convention, Havana Convention, Madrid Convention), as well as
domestic legislation.

18
 INDEX

status.42

Unlike Maritime Law, which had a long evolutionary history of

customary international law dating from the Phoenicians, the Greeks
and the Romans, and subsequently codified into conventional
international law, Air Law was formulated into conventional
international law at its infancy, without the gradual step-by-step
evolutionary growth of customary international law. Professor
Diederiks-Verschoor observed, "Due to the rapid developments in
aviation and with the law-makers attempting to keep pace, custom has
largely been bypassed as a source of law, the result being that air law
today consists mainly of written [conventional international] law."43

Other scholars, however, have pointed to areas where customary

international law appears present in full glory in aviation. Professors
Brian Havel and Gabriel Sanchez argue that airspace sovereignty is such
a principle, with sovereignty as a dominant principle among States
dating back at least as far as the Treaty of Westphalia (1648). Further,
they point to the nationality rule, whereby airlines are expected to be
owned and controlled by citizens of their home State, as yet another
such customary principle. Prohibitions against piracy also be customary
international law rule, though in aviation an elaborate conventional
regime has been developed since the Tokyo Convention of 1961.44

Although, as we shall see, both the Paris Convention of 1919 and

the Chicago Convention of 1944 recognize that States enjoy complete and
exclusive sovereignty in the airspace above their territory, the remainder
of those multilateral agreements dilute that sovereignty as they oblige
States to comply with the treatys’ provisions, to comply “to the extent
practicable” (as the Chicago Convention provides) with the SARPs as
promulgated by the ICAO Council. Moreover, at least since the
Nuremburg Trials, limitations have been placed on what a sovereign
may do, even to its own citizens. Today, for example, sovereigns may be
prosecuted for war crimes and crimes against humanity, suggesting in
fact, that law has evolved in a direction in which international limitations
are increasingly, and with broader scope, imposed upon State
sovereignty.

42
R.R. Baxter, Multilateral Treaties as Customary International Law, 41 BRIT YB INT’L L 275,
278-79 (1965-1966).
43 [Link]. DIEDERIKS-VERSCHOOR, HISTORY AND DEVELOPMENT OF AIR LAW 9-10 (1997).
44 BRIAN F. HAVEL & GABRIEL S. SANCHEZ, THE PRINCIPLES AND PRACTICE OF
INTERNATIONAL AVIATION LAW 18 (Cambridge 2014).
 PUBLIC INTERNATIONAL AIR LAW

B. THE TREATY OF VERSAILLES

From its inception, commercial air transport has relied on the

support of national governments; in the years following World War I,
only government subsidies and mail contracts sustained the economic
viability of commercial aviation. International civil aviation enjoyed
robust growth after the end of World War I. The cessation of hostilities
provided the impetus for the development of aviation for transport
purposes. Large numbers of military aircraft and pilots were available
for conversion to civilian use, governments and business realized the
potential of aviation for expeditious transport and communications, and
postwar conferences generated a need for official travel. 45

The victors in the Great War – touted as the "war to end all wars" –
imposed conditions in the Versailles Treaty upon Germany addressing
aerial navigation. The victors gave their aircraft "full liberty of passage
and landing over and in the territory and territorial waters of Germany .
. .",46 and access to all German airports,47 while requiring Germany to
recognize their certificates of nationality and airworthiness and
licenses,48 and to give them most favored nation treatment. 49 The
Versailles Treaty also established the League of Nations, which the
United States, consumed by post-war isolationism, never joined.

B. THE CONVENTION RELATING TO THE REGULATION OF

AERIAL NAVIATION (PARIS CONVENTION OF 1919)

Both commercial and military issues were the driving forces

behind the development of conventional international air law at the end
of the Great War. Aviation had demonstrated its military capability
during the war, and at war's end, there were fleets of available aircraft
and scores of trained pilots eager to take up commercial aviation. On
February 8, 1919, the first scheduled air service was inaugurated
between Paris and London.50 Professor Manley Hudson observed:

45 BETSY GIDWITZ, THE POLITICS OF INTERNATIONAL AIR TRANSPORT 37 (1980). See generally,
PAUL STEPHEN DEMPSEY & WILLIAM THOMS, LAW AND ECONOMIC REGULATION IN
TRANSPORTATION 26-27 (1986).
46
The Convention of the League of Nations, Art. 313, 1 League of Nations O.J. 3 (1920).
47 Id. Art. 315.
48 Id. Art. 317
49
Id. Art. 318.
50 I. H. PH. DIEDERIKS-VERSCHOOR, AN INTRODUCTION TO AIR LAW 2 (6th ed. 1997).

20
 INDEX

It was the very rapid development of aviation during

the course of the War which made international legislation
inevitable. At the conclusion of the hostilities, various
belligerents found themselves with a large number of
aircraft and trained pilots, and in 1919 they were faced with
the necessity of regularizing the conditions under which
these aircraft might be employed in international
commerce.51

In order to establish and define a basic legal framework for

international aviation, the Paris Conference of 1919 produced the
Convention Relating to the Regulation of Aerial Navigation, more
commonly known as the Paris Convention. 52 The first article of the Paris
Convention recognized that each State enjoyed "complete and exclusive
sovereignty over the airspace above its territory."53 The use of the verb
"recognize" suggests that prevailing customary international law at the
time embraced the fundamental principle of State sovereignty over air
space.54 With the taste of war fresh in the mouths of the delegates at
Paris, they rejected the tradition of Hugo Grotius and his notion of
"freedom of the seas." Homo sapiens is a territorial beast, and this notion
of supremacy and exclusivity seemed to satisfy a powerful primordial
imperative. In recognizing the exclusivity of national territorial rights,
the world community rejected the older concept of international
Maritime Law which allowed unencumbered commercial use of the
oceans during peacetime by vessels flying the flag of any nation and
owned by citizens of any country to visit the ports of any nonbelligerent

51
Manley Hudson, Aviation and International Law, 1 Air L. Rev. 183, 186 (Apr. 1930).
52
Convention Relating to the Regulation of Aerial Navigation, signed, Oct. 13, 1919, 11
L.N.T.S. 173 (hereinafter cited as Paris Convention). See generally, NICHOLAS MATEESCO.
MATTE, TREATISE ON AIR-AERONAUTICAL LAW 125-127 (1981); OLIVER LISSITZYN,
INTERNATIONAL AIR TRANSPORT AND NATIONAL POLICY 366-73 (1942); WENCESLAS J.
WAGNER, INTERNATIONAL AIR TRANSPORTATION AS AFFECTED BY STATE SOVEREIGNTY 39-61
(1970).
53 Id., art. 1. See generally, LORD MCNAIR, THE LAW OF THE AIR 407 (3rd ed. 1964).

[The Paris Convention] repudiated the notion of freedom of the air and jealously
guarded the new notion of air sovereignty which limited planes more than ships;
for nations were naturally far more worried by aircraft flying over their territory—
whence they could spy, bomb, or secretly land—than by ships which under the law
of the sea were allowed in theory to call at any port they wished.
ANTHONY SAMPSON, EMPIRES OF THE SKY: THE POLITICS, CONTESTS AND CARTELS OF WORLD
AIRLINES 24, 91 (1984).
54 Stephen Shrewsbury, September 11th and the Single European Sky: Developing Concepts of

Airspace Sovereignty, 68 J. AIR L. & COM. 115, 130 (2003); MICHAEL MILDE, INTERNATIONAL
AIR LAW AND ICAO 11 (Eleven 2008).
 PUBLIC INTERNATIONAL AIR LAW

State and there participate in international trade and commerce. 55

The Paris Convention confirmed that transit and landing rights for
airlines would be largely defined by the explicit or tacit approval of the
national governments in or above whose territory they would operate,
though the right of innocent passage during peacetime was embraced.56
But this right, too, was circumscribed by the right to impose
nondiscriminatory "prohibited areas", restricting flying for military or
safety reasons.57 Aircraft straying over these areas were required to give
a signal of distress and land expeditiously at an airport outside the
prohibited area.58 The Convention also established the Commission
Internationale de la Navigation Aerienne [CINA]59 (or in English, the
International Commission on Air Navigation) under the direction of the
League of Nations, and granted it regulatory power over technical
issues.60 CINA could amend the Annexes to the Paris Convention via a
qualified majority, making them binding on all contracting States, even
those opposing the change.61

55 ANDREAS LOWENFELD, AVIATION LAW § II-3 (1972). Professor Lowenfeld predicted in

1975 that "Airlines would not be multilateral corporations . . . in terms of ownership and
organization, but would be owned by the States or citizens of the State whose flag they
flew." Andreas Lowenfeld, A New Take-Off for International Air Transport, 54 FOREIGN AFF.
36 (1975). The notion that an ocean vessel may be owned by citizens other than those of the
flag it flies has not been without controversy. See Paul Stephen Dempsey & Lisa Helling,
Oil Pollution by Ocean Vessels—An Environmental Tragedy: The Legal Regime of Flags of
Convenience, Multilateral Conventions and Coastal States, 10 DEN. J. INT'L L.& POL'Y 37, 50-65
(1980); Herman, Flags of Convenience—New Dimension of an Old Problem, 24 MCGILL L.J. 1
(1978); McDougal, Burke & Vlassic, The Maintenance of Public Order at Sea and the Nationality
of Ships, 54 AM. J .INT'L L. 25 (1960); PAUL STEPHEN DEMPSEY & WILLIAM THOMS, LAW AND
ECONOMIC REGULATION IN TRANSPORTATION 29, 33 (1986); WENCESLAS J. WAGNER,
INTERNATIONAL AIR TRANSPORTATION AS AFFECTED BY STATE SOVEREIGNTY 1-8 (1970);
Andreas Lowenfeld, A New Take-Off for International Air Transport, 54 FOREIGN AFF. 36
(1975).
Professor Bin Cheng has pointed out that the requirement of "substantial
ownership of effective control" of an airline by nationals of the State whose flag it flies,
widely incorporated into bilateral air transport agreements, has essentially banned the
notion of flags of convenience from international air transport. However, Dr. Gertler has
pointed out three examples of multilateral airline ownership: SAS, Air Afrique, and the
failed East Africa Airways. Joseph Gertler, Nationality of Airlines: A Hidden Force in the
International Air Regulation Equation, 48 J. AIR L. & COM. 51, 65-66 (1982). He also
emphasizes that the Chicago Convention does not impose such a "genuine link"
requirement. Id. at 59, 66.
56
Paris Convention, Art. 2.
57 Paris Convention, Art. 3.
58 Paris Convention, Art. 4.
59
CINA was established under Chapter VIII of the Paris Convention. It is, in effect, the
predecessor agency of ICAO.
60 I. H. PH. DIEDERIKS-VERSCHOOR, AN INTRODUCTION TO AIR LAW 4-5 (6th ed. 1997).
61 Elmar M. Giemulla, Chicago System: Genesis and Main Characteristics, in INTERNATIONAL

22
 INDEX

Thirty-three (mostly European) nations became subject to the Paris

Convention. Though the U.S. helped draft it, the United States never
ratified the Paris Convention, on grounds that CINA was under the
direction of the League of Nations (which the U.S. also never joined), and
CINA held authority to adopt Annexes as amendments the
Convention,62 without U.S. Senate review or approval.63 The United
States was unwilling to confer lawmaking power to an international
organization. Many of the substantive law provisions set forth in the
Paris Convention subsequently would be embraced by the Chicago
Convention of 1944, which replaced the Paris Convention.64

C. THE MADRID AND HAVANA CONVENTIONS

During the interwar period, several attempts were made to

achieve a multilateral agreement on international aviation services. In
addition to the Paris Conference of 1919, similar conventions were
signed in Madrid65 in 1926, and Havana66 in 1928. At the time these
agreements were concluded, there still remained the possibility that
States would collectively adopt an "open port" policy analogous to that
which existed for maritime shipping. 67 Despite optimism for a
comprehensive multilateral resolution of these issues, however, bilateral
air transport agreements gradually proliferated between the signatory
States of the Paris, Madrid and Havana Conventions, and States
increasingly exchanged aviation traffic rights on the basis of bilateral
reciprocity.68 Cabotage restrictions also were defined differently from
those of the subsequent Chicago Convention, allowing a contracting
State to discriminate in favor of its national aircraft for the provision of
domestic air transport services,69 but allowing other States to impose the
same restrictions upon such aircraft in their territory. 70 However, unlike

AND EU AVIATION LAW 10 (Wolters Kluwer 2011).

62
Paris Convention, Art. 39.
63 John Cobb Cooper, Backgrounds of International Public Air Law, 1 YEARBOOK OF AIR AND

SPACE LAW 3, 19 (1967).

64 Among those that were not included a provision that aircraft be registered by a State

only if owned by its nationals, or a local company. Paris Convention, Art. 7.

65 Ibero-American Convention Relating to Aerial Navigation (Madrid, 1926).
66 Convention on Commercial Aviation (Havana, 1928).
67 Peter Haanappel, Bilateral Air Transport Agreements – 1913-1980, 5 INT'L TRADE L.J. 241

(1980).
68
Id.
69 Paris Convention, Art. 16.
70 Paris Convention, Art. 17. Another provision not found in the subsequent Chicago

Convention was Art. 23, which provided that maritime law would apply to salvaged
aircraft.
 PUBLIC INTERNATIONAL AIR LAW

the Paris and Madrid Conventions, the Havana Convention addressed

traffic rights in a more liberal manner, permitting the discharge of
passengers and air freight at any airport in the 16 ratifying Latin
American States.71

Articles 1 and 2 of the Madrid Convention repeated verbatim the

first two articles of the Paris Convention, while the Havana Convention
repeated them in substance.72 According to Professor John Cobb Cooper,
these developments between the two world wars reveal "a universally
accepted rule of international law that the airspace above national lands,
waters, and territorial waters is part of the territory of the subjacent
State, and that each sovereign State has the same right to control all
movement in its national airspace as it had on national lands and waters,
and that the traditional rights of innocent passage enjoyed by surface
vessels through territorial waters did not exist for the benefit of foreign
aircraft above such territorial waters."73

D. THE CONVENTION ON INTERNATIONAL CIVIL AVIATION

(THE CHICAGO CONVENTION OF 1944)

In the 1920s and early 1930s, the European governments realized

the potential of international air transport in linking their overseas
colonies to the home country. A number of colonial powers, including
France, the United Kingdom, Germany, Belgium, and the Netherlands,
opted to concentrate their respective resources in the development of a
single national carrier. These national carriers, owned and/or heavily
subsidized by their respective governments, provided a sense of security
in a rapidly changing international environment, and helped link their
colonial territories to the homeland.

Across the Atlantic, a number of private airlines were growing.

Like their European counterparts, many were initially dependent upon
government subsidies and mail contracts for their survival. The
government of the United States, however, was not interested in the
development of a single national carrier; by 1930, the "Big Four" private
carriers—United Air Lines, Eastern Airlines, American Airlines, and
Trans World Airlines—were flying transcontinental routes. Another U.S.
carrier, Pan American World Airways, had no domestic routes, but as

71 MICHAEL MILDE, INTERNATIONAL AIR LAW AND ICAO 13 (Eleven 2008).

72 John Cobb Cooper, Backgrounds of International Public Air Law, 1 YEARBOOK OF AIR AND
SPACE LAW 3, 21-22 (1967).
73 John Cobb Cooper, Backgrounds of International Public Air Law, 1 YEARBOOK OF AIR AND

SPACE LAW 3, 23 (1967).

24
 INDEX

the "chosen instrument" of U.S. international aviation, developed

international routes.

By the mid-1930s, passenger traffic on the world's commercial

airlines had grown substantially, replacing mail contracts as the primary
source of carrier revenue. In Europe, however, the major civil aviation
powers had repeatedly failed in their attempts to formulate a uniform
aviation economic policy, which might have increased the efficiency of
air travel on the continent. The emergence of the Nazis in Germany in
1933 and Germany's invasion of Austria, Czechoslovakia and Poland
sent shock waves through the civil aviation industries of Europe as
governments once again began to give priority to the production of
military aircraft.

In 1938, the Roosevelt administration created a Civil Aeronautics

Authority—later re-formed as the Civil Aeronautics Board [CAB]—to
allocate and supervise air routes and rates. The U.S. approach was one
of "managed competition," in which the airlines, while remaining
privately owned, were nonetheless dependent on the government for
approval of new routes (which would be authorized under the Civil
Aeronautics Act of 1938 if the proposed service was consistent with "the
public convenience and necessity"), and rates. The Big Four domestic
airlines were awarded certificates or "grandfather rights," to their pre-
existing domestic routes, while Pan American's U.S.-flag monopoly of
international routes was allowed to continue until the 1950s. Domestic
and international rates were required to be filed in tariffs with the CAB,
which reviewed them to determine whether they were "just and
reasonable" and "nondiscriminatory." In another important decision that
would have far-reaching implications, U.S. aircraft manufacturers were
prohibited from owning or exercising control over any U.S. carriers.

In Europe, the governmental response to the financial collapse of

airlines resulting from the Great Depression was different. Most
European airlines were nationalized. The nightmare of World War II
and the ensuing German occupation of most of Europe wreaked havoc
upon the international civil aviation system. While denied most of its
overseas routes, the German national carrier, Lufthansa, emerged as
Europe's dominant commercial carrier, taking over the fleets of several
other prominent European carriers. Britain's commercial carriers
virtually ceased to exist, as its aviation industry was converted to the
production of military aircraft, particularly fighter aircraft.

The outbreak of hostilities also had a profound effect on the U.S.

 PUBLIC INTERNATIONAL AIR LAW

aviation industry, particularly after the entry of the United States into the
war in 1941. The Big Four domestic carriers and Pan American were
pressed into military service, some of them ferrying supplies to Allied
forces in Europe and around the globe.

As World War II entered its final stages, several prominent

members of the international community expressed concern over the
postwar development of international civil aviation, realizing that this
brave new world would require multilaterally negotiated solutions to a
growing number of political, economic and technical problems. In
response to these concerns, the United States agreed to sponsor an
international conference in the hope that it would lay the foundation for
the future growth and development of the industry. President
Roosevelt extended an invitation to 55 States to attend a diplomatic
conference in Chicago. Roosevelt’s invitation included the following
words of aspiration:

As we begin to write a new chapter in the fundamental law

of the air, let us all remember that we are engaged in an
attempt to build institutions of peace. These peace
settlements cannot be endangered by petty considerations,
or weakened by groundless fears. Rather, with full
recognition of the sovereignty and judicial equality of all
nations, let us work together so that the air may be used by
humanity, to serve humanity.74

Fifty-two nations did attend the International Civil Aviation

Conference in Chicago from November 1 to December 7 of 1944.
Virtually all of the civil aviation powers of the prewar era were
represented. The Soviet Union was invited but declined to attend the
Chicago Convention, presumably because the fascist governments of
Spain and Portugal were present. With the War not yet over, the Axis
nations (i.e., Germany, Italy, and Japan) were not invited.75 Initial
optimism for a comprehensive multilateral agreement soon faded,
however, as economic and political rivalries emerged between a number
of the conference's more prominent members, particularly the United
States and the United Kingdom.76

74
ASSAD KOTAITE, MY MEMOIRS 42 (ICAO 2013).
75
ANTHONY SAMPSON, EMPIRES OF THE SKY: THE POLITICS, CONTESTS AND CARTELS OF
WORLD AIRLINES 65-66 (1984). The Soviet Union would not become a member until 1970.
The People’s Republic of China did not join until 1974. ASSAD KOTAITE, MY MEMOIRS 50
(ICAO 2013).
76 MCGILL CENTER FOR RESEARCH OF AIR & SPACE LAW, LEGAL, ECONOMIC AND SOCIO-

26
 INDEX

The United States entered the Chicago negotiations as the world's

dominant aviation power, both in terms of aircraft production and
technological expertise. During WWII, the British had devoted their
aviation industrial capacity building fighter planes, while the U.S. built
most of the freighters. The war left the U.S. with a tremendous fleet of
long-range transport planes readily convertible to civilian use (including
large fleets of DC-2s and DC-3s), as well as a massive industrial
infrastructure which, when fully converted to civilian production, would
be capable of producing large numbers of commercial aircraft. Other
nations feared the prospect of unrestrained competition with the giant
U.S. civil aviation industry.77 In addition to this obvious advantage in
production capability, the U.S. aircraft industry had achieved a number
of important technological breakthroughs during the war years which
would insure its supremacy for decades to come.

Other States represented at Chicago, particularly the United

Kingdom, feared the prospect of unrestrained competition with the U.S.
civil aviation industry. In the last stages of the war, U.S. carriers had
captured almost 72 percent of world air commerce, compared to about 12
percent by British carriers. The European nations had devoted their full
resources to the war effort; their civil aviation industries, either
nonexistent or ill-equipped for the production of commercial aircraft,

POLITICAL IMPLICATIONS OF CANADIAN AIR TRANSPORT 521-22 (1980) [citations omitted].

ANTHONY SAMPSON, EMPIRES OF THE SKY: THE POLITICS, CONTESTS AND CARTELS OF WORLD
AIRLINES 62-69 (1984).
The second World War not only transformed the scope of the airlines but produced
two contradictory political attitudes to the air. The horrors of air warfare,
culminating in the atomic bomb on Hiroshima, generated a new insistence that
both military and civil aircraft should be separated from national ambitions and
put under international control. Yet every government was more convinced that it
must protect and advance its own airlines, as the lifeline to its trade and security.
Id. at 57.
The system, whereby all over the world international air services are performed on
the basis of bilateral air transport agreements is a result of the failure of the 1944
Chicago Conference and the subsequent failure of P.I.C.A.O. and I.C.A.O. to reach a
Multilateral exchange of traffic rights for scheduled international air services. A
multilateral agreement in the exchange of traffic rights was impossible in 1944
because of the widely divergent views of the two key aviation powers at the time,
the U.S.A. and the U.K., on the economics of international air transport. The U.K.
was then champion of strict intergovernmental regulation of international air
transport, whereas the U.S. advocated a system of free competition between
international air carriers.
MCGILL CENTER FOR RESEARCH OF AIR & SPACE LAW, LEGAL, ECONOMIC AND SOCIO-
POLITICAL IMPLICATIONS OF CANADIAN AIR TRANSPORT 521-22 (1980) [citations omitted and
emphasis in original].
77 NEWAL TANEJA, U.S. INTERNATIONAL AVIATION POLICY (1980).
 PUBLIC INTERNATIONAL AIR LAW

would require large expenditures of time and capital before they could
realistically compete with their U.S. counterparts. Moreover, much of
the European manufacturing infrastructure had been destroyed by the
war. Professor Wenceslas Wagner observed:

Before the war, there were in the whole world, 2,388

airplanes flying on regular air lines, 1,200 of which served on
international routes; in 1944, the United States alone had
20,000 transport planes and five million skilled workmen in
aeronautical industry. . . . As no country in the whole world
was able to compete, in the last period of the war, with
American aeronautical equipment and personnel, it seemed
certain that the proclamation of air freedom, parallel to the
freedom of the high seas, would be advantageous to
interests of the United States.78

Following World War II, the United States embarked on a crusade

to encourage freer trade and economic cooperation between nations in
the belief that the American people and, indeed, the Western World,
would prosper if obstacles to the free flow of commerce were eliminated.
By eliminating tariff and non-tariff barriers, it was believed, free trade
would be encouraged, and the law of comparative advantage would
dictate which nations were best suited for producing various
commodities and services.79 Essentially, it was argued that each nation
would produce the manufactured products, agricultural commodities, or
raw materials for which it was best suited (i.e., each would export that
which it could produce most economically and most efficiently). 80
Further, encouraging commercial relations between nations as their

78
WENCESLAS J. WAGNER, INTERNATIONAL AIR TRANSPORTATION AS AFFECTED BY STATE
SOVEREIGNTY 80-82 (1970). NEWAL TANEJA, U.S. INTERNATIONAL AVIATION POLICY (1980).
ANTHONY SAMPSON, EMPIRES OF THE SKY: THE POLITICS, CONTESTS AND CARTELS OF WORLD
AIRLINES 64 (1984).
79 The law of comparative advantage posits that national wealth will be enhanced if each

nation specializes in the production of goods and services which it can produce most
economically and efficiently, and imports those products in which it has a comparative
disadvantage. Export specialization is based on the utilization of the factors of production
with which each nation is particularly blessed, such as raw materials, technological ability,
or skilled labor. The concept was introduced as a basis for increasing the wealth of a
population through international trade by DAVID RICARDO, ON THE PRINCIPLES OF
POLITICAL ECONOMY AND TAXATION (1817). Luigi L. Pasinnetti, A Mathematical Formulation
of the Ricardian System, 27 REV. ECON. STUD. 78 (1960). Ronald Findlay, International
Distributive Justice, 13 J. INT'L ECON. 1 (1982).
80 See e.g., Luigi L. Pasinnetti, A Mathematical Formulation of the Ricardian System, 27 REV.

ECON. STUD. 78 (1960). Ronald Findlay, International Distributive Justice, 13 J. INT'L ECON.1
(1982).

28
 INDEX

economies became inextricably intertwined might deter future military

conflict.

In Chicago, the United States promoted the position that airlines of

all nations should have relatively unrestricted operating rights on
international routes.81 In the U.S. view, reliance on commercial air
carriers to provide the quantity and quality of transport services
demanded by consumers was preferable to economic regulation by
government fiat.82 In pursuit of this policy, U.S. negotiators called for a
multilateral granting of all of the so-called "five freedoms"83 of the air,
and insisted that the determination of capacities, 84 frequencies,85 and
fares should be left to market forces rather than delegated to an
international regulatory body.86

The "five freedoms" of the air for which the U.S. delegation sought
multilateral recognition are as follows:

First freedom -- The civil aircraft of an airline holding an

operating certificate issued by one State (known as the “flag
State”) has the right to fly over the territory of another State
without landing, provided the overflown country is notified
in advance and approval is given.

81 See United Nations Information Organization (UNIO), Report of the Chicago Convention on
International Civil Aviation 1, 4, 31 (1944). But see ANTHONY SAMPSON, EMPIRES OF THE SKY:
THE POLITICS, CONTESTS AND CARTELS OF WORLD AIRLINES 66-67 (1984).
82 See generally, ANTHONY SAMPSON, EMPIRES OF THE SKY: THE POLITICS, CONTESTS AND

CARTELS OF WORLD AIRLINES 63-67 (1984); NICHOLAS MATEESCO MATTE, TREATISE ON AIR-
AERONAUTICAL LAW 128 (1981).
83 BETSY GIDWITZ, THE POLITICS OF INTERNATIONAL AIR TRANSPORT 49-50 (1980); Ralph

Azzie, Specific Problems Solved by the Negotiation of Bilateral Air Agreements, 13 MCGILL L.J.
303 (1967).
84 Capacity refers to the available number of commercial seats on a specific aircraft-type

multiplied by the flight frequency of that aircraft-type during a specific time period
(usually one week) over a specific route.
85 Frequency refers to the number of flights during a specific time period (usually one

week) over a specific route.

86 See ANDREAS LOWENFELD, AVIATION LAW II-5 (1972).
 PUBLIC INTERNATIONAL AIR LAW

Second freedom -- A civil aircraft of one country has the right

to land in another country for technical reasons, such as
refueling or maintenance, without offering any commercial
service to or from that point.

Third freedom -- An airline has the right to carry traffic from

its flag State to another country.

Fourth freedom -- An airline has the right to carry traffic from

another country to its own country.

Fifth freedom -- An airline has the right to carry traffic

between two countries outside its own flag State so long as
the flight originates or terminates in its own State.87

87 Subsequent practice has allowed "change of gauge" operations, whereby airlines transfer

30
 INDEX

Some have argued that these were not really "freedoms" of the air
at all, but restrictions – the antithesis of freedom.88 Professor Bin Cheng
has noted that "the more refined these distinctions become the more
restrictive is the policy pursued; for every newborn 'freedom of the air' is
in reality an additional shackle on the right to fly of foreign carriers, to be
removed only at a price."89 Professor Brian Havel notes that, “These
freedoms are, in reality, a protectionist artifice to imprint government
control on every conceivable means of access to national airspace . . . .
[T]rading of the ‘freedoms’ is conducted in a routinely bilateral fashion,
with each side committd to a kind of ‘aeropolitics’ of restriction and
artful compromise, classiz zero-sum diplomacy, in defense of the home
carrier’s market share.”90 Actually, they were certainly freedoms if won
in bilateral or multilateral negotiations, though usually exchanged on a
quid-pro-quo basis. Otherwise, each State enjoyed complete and exclusive
sovereignty above its territory to prohibit the exercise of such
"freedoms", in the same way it could deny an alien person the ability to
roam freely within its borders.

In addition to the Chicago Convention, the Chicago conference

also produced two important “side” agreements – the Transit
Agreement, which provided for the multilateral exchange of first and
second freedoms,91 and the Transport Agreement, calling for the
multilateral exchange of all five freedoms. 92 In the years since Chicago,
several other freedoms of the air have been identified:

Sixth freedom -- An airline has the right to carry traffic

passengers between aircraft at a foreign point.

88 BIN CHENG, THE LAW OF INTERNATIONAL AIR TRANSPORT 13, 17 (1962).
89
BIN CHENG, THE LAW OF INTERNATIONAL AIR TRANSPORT 13, 17 (1962).
90 BRIAN F. HAVEL, IN SEARCH OF OPEN SKIES 19 (Kluwer 1997).

91 International Air Services Transit Agreement, 59 Stat. 1693, T.I.A.S. No. 487, U.N.T.S. 389
(1951).
92 International Air Transport Agreement, 59 Stat. 1701, T.I.A.S. No. 488, U.N.T.S. 387

(1953).
 PUBLIC INTERNATIONAL AIR LAW

between two foreign countries via its own flag State of

registry. (Sixth freedom can also be viewed as a
combination of third and fourth freedoms secured by the
State of registry from two different countries).

Seventh freedom -- An airline operating entirely outside the

territory of its State of registry has the right to fly into
another State and there discharge, or take on, traffic coming
from, or destined to, a third State.

Eighth freedom -- An airline has the right to carry traffic from

one point in the territory of a country to another point in the
same country on a flight which originates in the airline's
home country. (This right is more commonly known as
consecutive cabotage).

Ninth freedom -- An airline has the right to carry traffic from

one point in the territory of a country to another point in the
same country. (This right is pure cabotage).93

93 Article 7 of the Chicago Convention allows a nation to reserve cabotage to its own flag
carriers; if it surrenders it to another State, it must do so on a nondiscriminatory basis.

32
 INDEX

Actually, early U.S. drafts of the Chicago Convention included

elaborate provisions for the limitation of carrier capacity. The United
States also called for the strict recognition of cabotage in international
aviation, thereby restricting foreign access to domestic traffic. Moreover,
the U.S. continued to regulate entry and pricing of its airlines for several
decades following the Chicago conference. Hence, the U.S. negotiating
posture at Chicago was not as laissez faire as some historians have
suggested.94

The United Kingdom was understandably fearful of the prospect

of unrestrained competition with U.S. carriers on international routes. In
response to these concerns, British negotiators proposed that an
international regulatory body be established to distribute routes and
determine capacities, frequencies and fares.

Britain's proposed "International Air Authority" would "(i) control

routes and frequencies in accordance with agreed criteria designed to
'avoid wasteful competition on the one hand [but to] give ample facilities
on the other'; (ii) allocate quotas to countries' carriers for services over
the assigned routes; and (iii) set rates to 'avoid waste' and get rid of
subsidies."95 Such a system, the British believed, would provide their
aviation industry with a much needed period of recovery, one which
would allow it to survive direct competition with its American
counterpart.96 Canada proposed creation of an international air authority
with jurisdiction over economic regulation, whereby regional councils
would issue operating certificates and regulate international air
transport.97 Australia and New Zealand proposed a more novel proposal

BETSY GIDWITZ, THE POLITICS OF INTERNATIONAL AIR TRANSPORT 49-50 (1980).

94 M. WILLRICH, ENERGY AND WORLD POLITICS 11-13 (1975).
95 ANDREAS LOWENFELD, AVIATION LAW §§ II-6 AND II-7 (1972).
96 ANTHONY SAMPSON, EMPIRES OF THE SKY: THE POLITICS, CONTESTS AND CARTELS OF

WORLD AIRLINES 67-68 (1984), NICHOLAS MATEESCO MATTE, TREATISE ON AIR-

AERONAUTICAL LAW 129 (1981).
97 Assad Kotaite, My Memoirs 42 (ICAO 2013).
 PUBLIC INTERNATIONAL AIR LAW

-- create a single international airline providing worldwide service. 98

Though the U.S. Civil Aeronautics Board regulated routes and

rates domestically, the U.S. was unwilling to embrace such a regulatory
approach internationally, choosing instead to press its capacity
advantage by insisting on "open skies." Despite lengthy negotiations,
U.S. and U.K. negotiators were unable to reach a compromise on several
important economic aspects of international aviation. In the area of
tariffs, the United States remained firm in its refusal to delegate
ratemaking jurisdiction to an international authority. The two sides also
differed on the critical issue of fifth-freedom traffic; negotiators could not
agree on whether the regulation of such traffic should be included in a
multilateral agreement or how fifth-freedom capacity should be
determined.

But the delegates at Chicago were not drafting from scratch. They
examined the provisions of the Paris, Madrid and Havana models, and
the Annexes that had been drafted by CINA. The Chicago Convention 99
reaffirmed the principle of exclusive sovereignty over a nation's
airspace100 enunciated in the Paris Convention twenty-five years earlier
and, therefore, allowed each nation to prohibit foreign aircraft from
being operated over its territory without its consent.101 With this
principle, the Chicago Convention effectively denied any multilateral
grant of rights for scheduled international air services.102

Neither American nor British proposals gained significant support,

however. Of the five proposed freedoms, only the first two "technical"
freedoms were adopted by the majority of the nations attending the
Chicago Conference. The United States, which viewed a multilateral
granting of all five freedoms with no capacity or frequency restrictions as
consistent with its stated goal of open competition in the marketplace,
was once again opposed by the British and others who maintained that
such a system would confer upon the United States a near-monopoly on
a number of major international routes. The multilateral grant of fifth-
freedom rights in itself was not totally unacceptable to the Europeans;

98 Welch Pogue, Airline Deregulation, Before and After: What Next? 16 (Lindbergh Memorial

Lecture, Washington, D.C., May 23, 1991.

99
Convention on International Civil Aviation, 61 Stat. 1180 (1944) [hereinafter cited as
Chicago Convention].
100
Chicago Convention, id. art. 1.
101
Chicago Convention, id. art. 6.
102 PETER HAANAPPEL, PRICING AND CAPACITY DETERMINATION IN INTERNATIONAL AIR

TRANSPORT 16 (1984).

34
 INDEX

nearly all nations at the Conference agreed that a certain amount of fifth-
freedom traffic was essential to the profitability of many international air
routes. Rather, the crucial disagreement concerned the degree to which
capacity in relation to fifth-freedom rights should be regulated. Having
little domestic traffic, the Europeans feared that a multilateral grant of
fifth freedom rights with no limitations on capacity would provide U.S.
carriers with unlimited access to the European carriers' most valuable
traffic. Thus, the nations represented at Chicago were unable to reach
agreement on the economic structure of postwar civil aviation.

As noted above, side agreements were drafted at the Chicago

Conference addressed traffic rights, including notably the Transit
Agreement103 and the Transport Agreement. The Transit Agreement
provides for a multilateral exchange for scheduled international air
services of the first two freedoms of the air; today, it has been ratified by
more than 100 nations, though notably some very large States – such as
the Russian Federation, Canada, Brazil, China and Indonesia – are not
members.104 The Transport Agreement105 provides for a multilateral
exchange for international air services of all five freedoms of the air;
however, in the ensuing half century, fewer than a dozen nations ratified
this agreement, and even the United States – its principal proponent –
withdrew after ratification.106

Thus, the dominant aviation powers were unable to reach a

meaningful compromise on economic regulatory issues at Chicago; the
attending nations, particularly the United States, were unwilling to
surrender their sovereignty to an international regulatory body having
the power to formulate and enforce a comprehensive and uniform
aviation policy. The British and many other nations had no enthusiasm
for opening the skies to destructive competition. With the failure of the
Chicago Conference and subsequent multilateral conferences of the
immediate postwar era to produce a convention addressing the
economic regulatory aspects of international civil aviation – particularly
entry, ratemaking and capacity – it became increasingly clear that
bilateral negotiations between individual pairs of nations remained the

103 International Air Services Transit Agreement, 59 Stat. 1693, T.I.A.S. No. 487, 84 U.N.T.S.
389 (1951) [hereinafter cited as Transit Agreement]. See App. B.
104 P
ETER HAANAPPEL, PRICING AND CAPACITY DETERMINATION IN INTERNATIONAL AIR
TRANSPORT 17 n. 33 (1984).
105 International Air Transport Agreement, 59 Stat. 1701, T.I.A.S. No. 488, U.N.T.S. 387

(1953) [hereinafter cites as Transport Agreement]. See App. C.

106 PETER HAANAPPEL, PRICING AND CAPACITY DETERMINATION IN INTERNATIONAL AIR

TRANSPORT 17 n. 33 (1984).
 PUBLIC INTERNATIONAL AIR LAW

only viable option for determining route assignments, frequencies,

capacities and fares.107 We will examine the exchange of commercial
traffic rights in Chapters IX and X of this book.

Although the Conference failed to formulate a comprehensive

economic charter for international civil aviation or to effectuate a
universal exchange of traffic rights (though a side agreement – the
Transport Agreement – offered States the opportunity to exchange traffic
rights multilaterally), it did establish major substantive principles
governing international air law, particularly on technical issues calling
for uniformity such as safety and navigation, and laid the foundation for
the postwar establishment of the International Civil Aviation
Organization [ICAO], headquartered in Montreal. 108 ICAO President
Assad Kotaite observed, “As a piece of international air law, the Chicago
Convention is remarkable, like a true Magna Carta.”109 He noted that,
“The fact that the Chicago Convention remains essentially the same
instrument today that it was in 1944 (despite a few important
amendments and the addition of 19 Annexes with over 10,000 Standards
and Recommended Practices, many of them highly technical) is an
indication that the Chicago delegates created a modern, far-sighted, yet
flexible instrument which could be adjusted over the course of time with
the advent of new technological advances.” 110 Professor Michael Milde
summarized the major accomplishments of the Conference, and the
contribution of the Convention it produced:

The Chicago Convention is a remarkable legal instrument.

By today's standards and experience in the codification of
international law it is hard to believe that it was drafted
within 37 calendar days without any significant previous
multilateral consultation and without a draft text consulted
by the participants prior to the opening of the Conference… .

The 96 Articles of the Convention are by themselves a

107
Many bilaterals contain clauses which provide that, in the event a multilateral air
transport agreement is accepted by both parties, the provisions of the multilateral
agreement will prevail over those of the bilateral.
108 The participants in the Chicago Conference hoped to reach agreement with respect to

both (a) safety, communications and technology, and (b) economic regulatory issues of
entry, rates, frequency and capacity. The Convention created ICAO and gave it important
responsibilities over the former questions, which it has performed quite well. But ICAO
was given only limited general policy directions over the more controversial economic
issues. See ANDREAS LOWENFELD, AVIATION LAW § II-5 (1972).
109
ASSAD KOTAITE, MY MEMOIRS 42 (ICAO 2013).
110 Id. at 43.

36
 INDEX

monumental drafting achievement, but represent only a

fraction of the entire work of the Conference [which
included an Interim Agreement on International Civil
Aviation, the Transit Agreement, the Transport Agreement,
and a Standard Form of Agreement for Provisional Air
Routes].

The Convention has a dual personality, like many of today's

constitutional instruments of the specialized agencies of the
United Nations system. It is in the first place a
comprehensive codification/unification of public
international air law and, in the second, a constitutional
instrument of an international intergovernmental
organization of universal character… . [T]he Chicago
Convention contains, in great detail, a self contained corpus
of public international air law.111

We shall explore these two functions of the Chicago Convention in

the next Chapter.

In must be noted that the Chicago Conference, held from

November 1 to December 7, 1944, creating ICAO, preceded the San
Francisco Conference, held in the Spring of 1945, which drafted the
United National Charter and created the United Nations. 112 ICAO was
established on April 4, 1947 as the Chicago Convention entered into force
(30 days after the 26th ratification).113 On May 13, 1947, ICAO became a
specialized agency of the United Nations pursuant to Article 7 of the UN
Charter, and the Agreement between the United Nations and ICAO of
1947.114 Montreal, Canada, was chosen as its headquarters. 115 As Dr.
Assad Kotaite, former President of the ICAO Council observed,
“Montreal has since come to be recognized as ‘the world capital of civil
aviation.’”116

111
Michael Milde, The Chicago Convention – Are Major Amendments Necessary or Desirable 50
Years Later?, XIX ANNALS OF AIR & SPACE L. 401, 402-03 (1994).
112 Elmar M. Giemulla, Chicago System: Genesis and Main Characteristics, in INTERNATIONAL
AND EU AVIATION LAW 14 (Wolters Kluwer 2011).
113 ASSAD KOTAITE, MY MEMOIRS 43 (ICAO 2013). ICAO was preceded by the Provisional
International Civil Organization [PICAO] from June 6, 1945, until April 4, 1947). PAUL
STEPHEN DEMPSEY & LAURENCE GESELL, AVIATION AND THE LAW 883 (5th ed. 2011).
114
Ludwig Weber, International Organizations, in INTERNATIONAL AND EU AVIATION LAW
75, 80 (Wolters Kluwer 2011).
115 The Canadian government pays 75% of the rent of ICAO’s Headquarters Building at 999
University Street in Montreal. ASSAD KOTAITE, MY MEMOIRS 104 (ICAO 2013).
116 A
SSAD KOTAITE, MY MEMOIRS 43 (ICAO 2013). Dr. Kotaite noted that when he arrived
in Montreal in the early 1950s, “McGill University had recently created the world’s leading
Institute of Air and Space Law at its downtown campus, just a few blocks from ICAO
 PUBLIC INTERNATIONAL AIR LAW

E. THE ANTARTIC TREATY OF 1959

The Arctic Ocean, though covered by ice during much of the year,
is to be governed by the rules of the high seas. The Antarctic Treaty of
1959 suspends any new territorial claims in Antarctica, though it makes
no effort to either endorse or reject pre-existing territorial claims.117 The
treaty left unresolved the pre-existing territorial claims asserted by
several States. Professor Milde argues that, “it appears justified, on
balance, to consider the Antarctica as a territory of undetermined
sovereignty comparable to the status of the high seas”, though some
States claiming territorial sovereignty over various parts of that
continent might object to this characterization. 118 While assertions of
airspace sovereignty in those areas claimed prior to adoption of the
Antarctic Treaty could be considered valid under the terms of the treaty,
these territorial claims have not garnered wide recognition in the
international community.119

F. THE OUTER SPACE TREATY OF 1967

The Outer Space Treaty of 1967 establishes the basic framework of

international law applicable to space. Its essential principles are these:
§ the exploration and use of outer space shall be carried out for the
benefit and in the interests of all countries and shall be the
province of all mankind;
§ outer space shall be free for exploration and use by all States;
§ outer space is not subject to national appropriation by claim of
sovereignty, by means of use or occupation, or by any other
means;
§ States shall not place nuclear weapons or other weapons of mass
destruction in orbit or on celestial bodies or station them in outer
space in any other manner;
§ the Moon and other celestial bodies shall be used exclusively for
peaceful purposes;

headquarters . . . .” Id. at 62. The McGill Institute of Air & Space Law was subsequently
awarded the Edward Warner Award, ”the greatest single honor in the world of civil
aviation.” Id. at 63.
117 "No acts or activities taking place while the present Treaty is in force shall constitute a

basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or

create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing
claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in
force." Antarctic Treaty § 4(2), 12 U.S.T. 794, 402 U.N.T.S. 71 (1959).
118
MICHAEL MILDE, INTERNATIONAL AIR LAW AND ICAO 42 (Eleven 2008).
119 Stephen J. Lonergan, The Legal Status of the Antarctic Airspace (McGill University Institute
of Air and Space Law, 1972) at 92.

38
 INDEX

§ astronauts shall be regarded as the envoys of mankind;

§ States shall be responsible for national space activities whether
carried out by governmental or non-governmental activities;
§ States shall be liable for damage caused by their space objects;
§ States shall conduct their space activities with due regard to the
corresponding interests of all other States Parties; and
§ States shall avoid harmful contamination of space and celestial
bodies.120

We will examine the intersection of Air Law and Space Law in the
concluding Chapter of this book.

G. THE LAW OF THE SEA CONVENTION OF 1982

Pursuant to Article 12 of the Chicago Convention, over the high

seas, the rules in force are those established by ICAO, or in other words,
the SARPs set forth in the Annexes to that Convention.

The United Nations Convention on the Law of the Sea of 1982

establishes several different areas, over which the legal regime differs:

§ In Internal Waters, the coastal State holds exclusive sovereignty.

§ The Territorial Waters of a State extend to 12 nautical miles from the
coastal baseline.121 The coastal state may set laws, regulate any
use and use any resource there. Maritime vessels are given the
right of "innocent passage" through territorial waters,122 though
aircraft are not. Coastal state "sovereignty extends to the air
space over the territorial sea as well as to its bed and subsoil."123
However, "sovereignty over the territorial sea is exercised
subject to this Convention and to other rules of international

120 [Link] The Outer Space Treaty

since has been supplemented by four other multinational conventions:

§ The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into Outer Space (the "Rescue Agreement);
§ The Convention on International Liability for Damage Caused by Space Objects (the
"Liability Convention");
§ The Convention on Registration of Objects Launched into Outer Space (the "Registration
Convention"); and
§ The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
(the "Moon Agreement").
121 United Nations Convention on the Law of the Sea, Art. 3, Dec. 10, 1982, 1933 U.N.T.S.

397 [hereinafter UNCLOS].

122 UNCLOS Art. 17.
123 UNCLOS Art. 2 ¶ 2.
 PUBLIC INTERNATIONAL AIR LAW

law",124 which would include the Chicago Convention.

§ Straits "used for international navigation between one part of the
high seas or an exclusive economic zone and another part of the
high seas or an exclusive economic zone"125 are treated
differently, even if within the 12-mile territorial seas. In straits,
both ocean vessels and aircraft enjoy the right of "transit
passage", defined for aircraft as, "overflight solely for the
purpose of continuous and expeditious transit of the strait
between one part of the high seas or an exclusive economic zone
and another part of the high seas or an exclusive economic zone.
. . ", though certain limitations are imposed.126 Further, aircraft
in transit passage must "observe the Rules of the Air established
by the International Civil Aviation Organization as they apply to
civil aircraft; state aircraft will normally comply with such safety
measures and will at all times operate with due regard for the
safety of navigation . . . ."127
§ The Archipelagic Waters can be within a coastal State's territory
depending on the distance between islands. Unlike the States
with straits running through them, the archipelagic State may
designate air lanes for use by aircraft, which shall enjoy free
passage therein.128

124
UNCLOS Art. 2 ¶ 3.
125
UNCLOS Art. 37.
126 UNCLOS Art. 38 ¶ 2. Art. 39 provides:

1. Ships and aircraft, while exercising the right of transit passage, shall:
(a) proceed without delay through or over the strait;
(b) refrain from any threat or use of force against the sovereignty, territorial
integrity or political independence of States bordering the strait, or in any other
manner in violation of the principles of international law embodied in the Charter
of the United Nations;
(c) refrain from any activities other than those incident to their normal modes of
continuous and expeditious transit unless rendered necessary by force majeure or by
distress;
(d) comply with other relevant provisions of this Part. . . .
3. Aircraft in transit passage shall:
(a) observe the Rules of the Air established by the International Civil Aviation
Organization as they apply to civil aircraft; state aircraft will normally comply with
such safety measures and will at all times operate with due regard for the safety of
navigation;
(b) at all times monitor the radio frequency assigned by the competent
internationally designated air traffic control authority or the appropriate
international distress radio frequency.
127 UNCLOS Art. 39 ¶ 3.
128
As relevant to aviation, UNCLOS Art. 53 provides:
1. An archipelagic State may designate . . . air routes thereabove, suitable for the
continuous and expeditious passage of . . . aircraft through or over its archipelagic
waters and the adjacent territorial sea.

40
 INDEX

§ The Contiguous Zone, beyond the 12 mile territorial water limit,

extends a further 12 nautical mile from the territorial sea baseline
within which the coastal State may enforce its customs, fiscal,
immigration or sanitary laws.129
§ The Exclusive Economic Zone [EEZ] extends 200 nautical miles from
the baseline. Here, the coastal State has exclusive rights over all
economic resources. More specifically, it enjoys, "sovereign
rights for the purpose of exploring and exploiting, conserving
and managing the natural resources, whether living or non-
living, of the waters superjacent to the seabed and of the seabed
and its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the
production of energy from the water, currents and winds . . . ."130
Nevertheless, in the EEZ, other States continue to have the rights
of overflight and navigation as they would on the high seas.131
And though it is not specified in UNCLOS, the Chicago

2. All . . . aircraft enjoy the right of archipelagic sea lanes passage in such . . . air
routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this
Convention of the rights of navigation and overflight in the normal mode solely for
the purpose of continuous, expeditious and unobstructed transit between one part
of the high seas or an exclusive economic zone and another part of the high seas or
an exclusive economic zone.
4. Such . . . air routes shall traverse the archipelagic waters and the adjacent
territorial sea and shall include all normal passage routes used as routes for
international navigation or overflight through or over archipelagic waters . . . .
5. Such . . . air routes shall be defined by a series of continuous axis lines from the
entry points of passage routes to the exit points. . . . [A]ircraft in archipelagic sea
lanes passage shall not deviate more than 25 nautical miles to either side of such
axis lines during passage, provided that such . . . aircraft shall not navigate closer to
the coasts than 10 per cent of the distance between the nearest points on islands
bordering the sea lane. . . .
8. Such . . . traffic separation schemes shall conform to generally accepted
international regulations.
9. In designating or . . . substituting traffic separation schemes, an archipelagic
State shall refer proposals to the competent international organization with a view
to their adoption. The organization may adopt only such . . . traffic separation
schemes as may be agreed with the archipelagic State, after which the archipelagic
State may designate, prescribe or substitute them.
10. The archipelagic State shall clearly indicate the axis of . . . the traffic separation
schemes designated or prescribed by it on charts to which due publicity shall be
given. . . .
12. If an archipelagic State does not designate . . . air routes, the right of archipelagic
sea lanes passage may be exercised through the routes normally used for
international navigation.
129
UNCLOS Art. 33.
130 UNCLOS Art. 56 ¶ 1.
131 UNCLOS Art. 58.
 PUBLIC INTERNATIONAL AIR LAW

Convention clearly provides that the rules in force over the high
seas are those established by ICAO.132
§ The Continental Shelf is the natural prolongation of the land not
more than 350 nautical miles under the seas. Although the
coastal State enjoys exclusive economic rights over the natural
resources in the shelf, though they do not possess sovereignty
over the shelf itself,133 "The rights of the coastal State over the
continental shelf do not affect the legal status of the superjacent
waters or of the air space above those waters."134
§ The High Seas "are open to all States, whether coastal or land-
locked. Freedom of the high seas is exercised under the
conditions laid down by this Convention and by other rules of
international law. It comprises, inter alia, both for coastal and
land-locked States: (a) freedom of navigation; [and] (b) freedom
of overflight; . . ."135 This freedom of aerial circulation was first
recognized in Article 2(4) of the Geneva Convention of the High
Seas. Further, Article 89 of the Law of the Sea Convention
provides that no State, "may validly purport to subject any part
of the high seas to its sovereignty." Hence, the principle of
freedom of the seas pertains to the high seas for both ocean
vessels and aircraft.

Air Defense Identification Zones [ADIZs] are not mentioned in

UNCLOS, though more than a dozen States claim authority to impose
requirements upon aircraft about to enter their territory for security
reasons, presumably relying upon the customary international law
principle of self defense, and Article 51 of the U.N. Charter. 136 The
United States' five ADIZs extend some 200 miles out from its coasts.
Thus, the United States requires that aircraft having the intention of
entering U.S. airspace must provide identification and location reports

132
Chicago Convention, Art. 12.
133
Kay Hailbronner, Freedom of the Air and the Convention on the Law of the Sea, 77 AM. J.
INT'L L. 490, 506 (1983).
134 UNCLOS Art. 78.
135 UNCLOS Art. 87.
136 Article 51 recognizes the customary right of self defense. Specifically, it provides that

"Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs . . . ." U.N. Charter. Art. [Link] right is limited by
necessity and proportionality. See Paul Stephen Dempsey, Economic Coercion and Self-
Defense in International Law: The Arab Oil Weapon and Alternative American Responses Thereto,
9 CASE WESTERN RES. J. INT'L L. (1977). Arguably, reliance also may be placed on Article 11
of the Chicago Convention, providing that the "laws and regulations of a contracting State
relating to the admission to or departure from its territory of aircraft engaged in
international air navigation . . ." shall be applied in a nondiscriminatory fashion.

42
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an hour before entering it.137 Aircraft flying along the coast with no
intention of entering US airspace need not so report, but foreign aircraft
entering US airspace are exposed to US action for failing to comply.
Moreover, post-9/11, the U.S. also began requiring that aircraft destined
for the United States reveal their passenger manifests prior to departure.

In November of 2013, China implemented an ADIZ in a significant

section of the East China Sea.138 There are two remarkable features of this
ADIZ: first, unlike the U.S. ADIZ, China requires that all aircraft entering
the zone, not only those intending to enter Chinese airspace, provide
information; and, second, that it includes maritme areas which are
contested by other States.139 Japan, South Korea, the U.S., and Australia
all promptly protested the creation of this ADIZ. 140 There were no prior
recorded instances of protest against an ADIZ.141 China demands that
aircraft abide by the following rules:

1. Flight plan identification. Aircraft flying in the East China Sea ADIZ
should report the flight plans to the Ministry of Foreign Affairs of the
People's Republic of China or the Civil Aviation Administration of
China.
2. Radio identification. Aircraft flying in the East China Sea ADIZ must
maintain the two-way radio communications, and respond in a timely
and accurate manner to the identification inquiries from the
administrative organ of the East China Sea ADIZ or the unit authorized
by the organ.
3. Transponder identification. Aircraft flying in the East China Sea ADIZ, if
equipped with the secondary radar transponder, should keep the
transponder working throughout the entire course.

137 Kay
Hailbronner, Freedom of the Air and the Convention on the Law of the Sea, 77 AM. J.
INT'L L. 490 515-16 (1983).
138 James Fallows, “How to Think About the Chinese Air-Defense News” (The Atlantic, 26
November 2013), online: [Link]
think-about-the-chinese-air-defense-news/281871/.
139 James Fallows, “More on This Strange Chinese ADIZ: ‘Sovereign Is as Sovereign Does’”
(The Atlantic, 27 November 2013), online:
[Link]
sovereign-is-as-sovereign-does/281890/.
140 Nicholas Szechenyi, et al, “China’s Air Defense Identification Zone: Impact on Regional
Security” (Center for Strategic and International Studies, 26 November 2013) online:
[Link]
security; see also, Lowell Bautista & Julio Amador III, “Complicating the Complex: China’s
ADIZ” (University of Wollongong Faculty of Law, Humanities and the Arts – Papers,
2013).
141 Ruwantissa Abeyratne, “In Search of Theoretical Justification of Air Defense
Identification Zones” (International Foundation for Aviation and Development, 19 August
2011), online:
[Link]
 PUBLIC INTERNATIONAL AIR LAW

4. Logo identification. Aircraft flying in the East China Sea ADIZ must
clearly mark their nationalities and the logo of their registration
identification in accordance with related international treaties.

US Secretary of State John Kerry responded by stating, "Freedom

of overflight and other internationally lawful uses of sea and airspace are
essential to prosperity, stability, and security in the Pacific. We don't
support efforts by any State to apply its ADIZ procedures to foreign
aircraft not intending to enter its national airspace. The United States
does not apply its ADIZ procedures to foreign aircraft not intending to
enter U.S. national airspace. We urge China not to implement its threat
to take action against aircraft that do not identify themselves or obey
orders from Beijing."142 The Japanese Foreign Ministry issued a
statement that said, “The airspace the Chinese side established today is
totally unacceptable and extremely regrettable as it includes the Japanese
territorial airspace over the Senkaku Islands, an inherent territory of
Japan.... Unilaterally establishing such airspace and restricting flights in
the area is extremely dangerous as it may lead to miscalculation in the
area...”143 One commentator notes:

International law does not recognize the right of

coastal nations to restrict the exercise of non-resource-related
high seas freedoms beyond the territorial sea. On the other
hand, states may establish Air Defense Identification Zones
(ADIZ) in the international airspace adjacent to their
territorial airspace for purposes of regulating the admission
of aircraft into its territory in the interest of national security.
Aircraft intending to enter a state's territorial airspace may
be required to file detailed flight plans and to identify
themselves while in international airspace before
penetrating the ADIZ. International law permits states to
establish reasonable conditions of entry into their territorial
airspace, providing that the conditions are applied to the
aircraft of all contracting states "without distinction" as to
their nationality.144

Also not mentioned in the Law of the Sea Convention are Flight
Information Regions [FIRs], which consist of an area over which a State
has responsibility for air traffic control. For coastal States, FIRs are the

142
[Link] (visited Aug. 4, 2014).
143 Id.
144 Andrew Williams, The Interception of Civil Aircraft Over the High Seas in the Global War on

Terror, 59 A.F. L. REV. 73, 95-96 (2007).

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airspace over their territory and territorial waters, as well as that part of
the high seas which air navigation has been delegated to it by ICAO.
Under Article 12 of the Chicago Convention, the rules applicable to
flights over the high seas are those established by ICAO.

IV. AIR LAW IN THE 21 st CENTURY

With the emergence of the global economy, and the end of the
Cold War, 19th century concepts of territorial sovereignty may be
growing somewhat anachronistic in the aviation sector. Liberalization of
traffic rights has made the skies more open. Airlines have formed
alliances to skirt around foreign ownership and cabotage restrictions.
The range of aircraft technology, the growth of international markets,
and a more mobile human race have called for a reduction in restrictions
and an increase in freedoms.

ICAO also has been emboldened to monitor and report

compliance and noncompliance with SARPs. The US and EU have
blacklisted noncompliant airlines and nations, thereby making
enforcement a reality. Hence, in this sector as in others, the global
imperatives of trade, tourism and commerce are melting away sovereign
restrictions on airspace.

V. SUMMARY & CONCLUSIONS

The first article of the Paris Convention of 1919 provided that each
State enjoys "complete and exclusive sovereignty over the airspace above
its territory." Thus, the world community rejected the concept of
international Maritime Law which allowed "freedom of the seas" --
unconstrained use of the oceans by vessels flying the flag of any nation
and owned by citizens of any country. Transit and landing rights for
airlines would be defined by the explicit or tacit approval of the national
governments in or above whose territory they would operate. Thus,
national governments would play a dominant role in the political
development of international air transportation.

As World War II drew to a close, several prominent members of

the international community advocated multilaterally negotiated
solutions to a growing number of political, economic and technical
problems. The United States agreed to sponsor an international
conference to discuss emerging civil aviation issues.

Fifty-two nations -- virtually all of the civil aviation powers of the

 PUBLIC INTERNATIONAL AIR LAW

prewar era (not including the Axis Powers and the Soviet Union) -- met
in Chicago from November 1 to December 7, 1944, at the International
Civil Aviation Conference.145 Initial optimism for a comprehensive
multilateral agreement soon faded, however, as economic and political
rivalries emerged. In Chicago, the United States advocated a free-market
philosophy in which airlines would have relatively unrestricted
operating rights on international routes.146 American negotiators called
for a multilateral granting of all five freedoms. 147 In addition, the United
States proposed that the determination of capacity,148 frequency,149 and
fares150 be left to market forces rather than delegated to an international

145 The Soviet Union and Saudi Arabia were invited, but declined to attend the Chicago
Conference. Welch Pogue, Airline Deregulation, Before and After: What Next? 14-15
(Lindbergh Memorial Lecture, Washington, D.C., May 23, 1991). The U.S.S.R. delegation
refused to attend once they learned that Fascist government of Spain was represented.
Professor Milde suggests that the “negative attitude of the USSR was perhaps an early sign
of the ‘cold war’ mistrust and isolation and the secretive USSR was not ready to open its air
space to international cooperation.” MICHAEL MILDE, INTERNATIONAL AIR LAW AND ICAO
14 (Eleven 2008). The Soviet Union did not join ICAO until 1970.
146 Early U.S. drafts of the Chicago Convention included elaborate provisions for the

limitation of carrier capacity. See Union, Report of the Chicago Convention on

International Civil Aviation 31 (1944). The United States also called for the strict
recognition of cabotage in international aviation, thereby restricting foreign access to
domestic traffic. See id. at 1, 4. Hence, the U.S. negotiating posture at Chicago was not as
laissez faire as some historians have suggested. But see ANTHONY SAMPSON, EMPIRES OF THE
SKY: THE POLITICS, CONTESTS AND CARTELS OF WORLD AIRLINES 66-67 (1984).
147 The "five freedoms" are universally applicable working rules for bilateral air

transportation relations.
148 Capacity refers to the available number of commercial seats on a specific aircraft-type

multiplied by the flight frequency of that aircraft-type during a specific time period
(usually one week) over specific route. Professor Cheng has stated that,
[a]s to capacity, the question was whether a foreign airline, once given permission
to operate commercially into and out of the territory of the grantor-State, may offer
as many passenger places and as much cargo space on as many services a week as
they wish—or, in other words, unrestricted capacity. If so, a strong operator would
be able to absorb all the available traffic and to gain eventually a monopoly over
the route concerned. Capacity regulation thus becomes one of the most thorny
problems in post-war scheduled international air transport.
BIN CHENG, THE LAW OF INTERNATIONAL AIR TRANSPORT 17 (1962).
149 Frequency refers to the number of flights during a specific time period (usually one

week) over a specific route. Thus, frequency can be viewed as merely one component of
capacity.
150 Although the terms "air rates," "air fares" and "air tariffs" are often used interchangeably

(as they are in this discussion), strictly speaking, the term "fares" relates to prices to be paid
for the air transportation of passengers and their baggage, whereas the term "rates" relates
to the prices to be paid for the air transportation of cargo. The wider term "tariffs" means
the prices to be paid for the air transportation of passengers, baggage and cargo, and the
conditions under which those prices apply. Peter Haanappel, Bilateral Air Transport
Agreements – 1913-1980, 5 INT'L TRADE L.J. 241 (1980). BIN CHENG, THE LAW OF
INTERNATIONAL AIR TRANSPORT 17 (1962).

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 INDEX

regulatory body.

At Chicago, the British delegation proposed the establishment of

an international regulatory body to distribute international routes and
determine capacities, frequencies and fares -- an International Civil
Aeronautics Board.151 The British believed that such a system would
provide their aviation industry with a much-needed period of
recovery.152 But neither the U.S. nor the British proposal was not
endorsed by the world community.

The "five freedoms" have become extremely important in the legal

conceptualization of international air transportation. They are as
follows:

1) A civil aircraft holding an operating license issued by

one State has the right to fly over the territory of another
State without landing.
2) A civil aircraft of one State has the right to land in
another State for technical reasons, such as refueling or
maintenance, without offering any commercial service to or
from that point.
3) An airline has the right to carry traffic from its flag
State to another State.
4) An airline has the right to carry traffic from another
country to its own flag State.
5) An airline has the right to carry traffic between two
State outside its own country of registry so long as the flight
originates or terminates in its own State.153

Since the Chicago Convention, several other freedoms have been

added:

151
The United Kingdom urged establishment of an "International Air Authority" which
would (i) control routes and frequencies in accordance with agreed criteria designed to
'avoid wasteful competition on the one hand [but to] give ample facilities on the other'; (ii)
allocate quotas to countries' carriers for services over the assigned routes; and (iii) set rates
to 'avoid waste' and get rid of subsidies." Andreas Lowenfeld, Aviation Law II-6 and II-7
(1972).
152 ANTHONY SAMPSON, EMPIRES OF THE SKY: THE POLITICS, CONTESTS AND CARTELS OF

WORLD AIRLINES 67-68 (1984), NICHOLAS MATEESCO. MATTE, TREATISE ON AIR-

AERONAUTICAL LAW 129 (1981).
153 BETSY GIDWITZ, THE POLITICS OF INTERNATIONAL AIR TRANSPORT 49-50 (1980); Ralph

Azzie, Specific Problems Solved by the Negotiation of Bilateral Air Agreements, 13 MCGILL L.J.
303 (1967).
 PUBLIC INTERNATIONAL AIR LAW

6) An airline has the right to carry traffic between two

foreign State via its own flag State.
7) An airline, operating entirely outside one territory of
its flag State, has the right to fly into the territory of another
State and there discharge, or take on, traffic coming from, or
destined to a third country.
8) An airline has the right to carry traffic from one point
in the territory of a State to another point in the same State.154

The nations present at the Chicago Convention drafted two

agreements which attempted to achieve multilateral recognition of
several of these rights -- the Transit Agreement, and the Transport
Agreement.155 The Transit Agreement involved the exchange of the first
two freedoms, and has been ratified by more 100 nations. The Transport
Agreement attempted to exchange the first five of the foregoing
freedoms, providing a framework for international aviation routes
among adhering nations; but only a dozen nations ratified it. 156

154 The eighth freedom involves cabotage rights. Some sources refer to a ninth freedom as

the right to interrupt a flight. E. GIEMULLA & R. SCHMID, EUROPEAN AIR LAW § 5 (1992).
155 The Chicago Conference actually drafted two additional agreements, the International

Air Services Transit Agreement, 59 Stat. 1693, T.I.A.S. No. 487, 84 U.N.T.S. 389 (1951),
which entered into force on January 30, 1945 [hereinafter cited as Transit Agreement], and
the International Air Transport Agreement, 59 Stat. 1701, T.I.A.S. No. 488, 171 U.N.T.S. 387
(1953) [hereinafter cited as Transport Agreement], which has not entered into force.
The Transit Agreement provides for the privileges of: (1) flying across each
contracting States' territory and of landing for non-traffic purposes; (2) taking on
passengers, mail, and cargo destined for the territory of the State whose nationality the
aircraft possesses: and (3) taking on passengers, mail, and cargo destined for the territory of
any other contracting State, and delivering passengers, mail, and cargo coming from any
such territory.
Acceptance of the Transport Agreement has been rather limited and slow. See
generally, WENCESLAS J. WAGNER, INTERNATIONAL AIR TRANSPORTATION AS AFFECTED BY
STATE SOVEREIGNTY 140-43 (1970). By 1984, 95 nations had accepted the Transit Agreement,
while only 12 were parties to the Transport Agreement. By 2002, 118 nations had ratified
the Transit Agreement, while still only 12 were parties to the Transport Agreement. Status
of Certain International Air Law Instruments, ICAO J. (Nov. 6, 2002), at 36-38. Though its
initial champion, the United States withdrew from the Transport Agreement in 1946.
Withdrawal of the United States of America, Dep't of State Press Release No. 510 (July 25,
1046). 3 CCH AV. L. REP. ¶ 26,016.
156 PAUL STEPHEN DEMPSEY, LAW & FOREIGN POLICY IN INTERNATIONAL AVIATION 51, 411-18

(1987).

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