Sources of

International Air Law

Multilateral Conventions
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
The Chicago Convention of 1944
has two principal functions:
I. THE CHICAGO
CONVENTION IS A
SOURCE OF
INTERNATIONAL AIR
LAW (Articles 1-42)
II. THE CHICAGO
CONVENTION IS THE
CONSTITUTION OF
AN INTERNATIONAL
ORGANIZATION
(Articles 43-96) - ICAO
The Chicago Conference of 1944

54 nations met at Chicago from

November 1 to December 7,
1944, to "make arrangements
for the immediate
establishment of provisional
world air routes and services"
and "to set up an interim
council to collect, record and
study data concerning
international aviation and to
make recommendations for its
improvement.”
 Accomplishments of the Chicago
Conference
[T]he Convention on International Civil Aviation, was concluded and opened for
signature. . . . [T]his instrument provided a complete modernization of the basic
public international law of the air. It was intended to replace the Paris Convention
on Aerial Navigation of October 13, 1919, and did so when it came into effect on
April 4, 1947.
The Convention also provided the constitution for a new permanent international
organization, the International Civil Aviation Organization, which . . . replaced the
previous international organization of more limited scope, the International
Commission for Air Navigation.
 Accomplishments of the Chicago
Conference (Continued)
In a mere 37 days, the delegates at Chicago drafted the following :
The International Air Services Transit Agreement, commonly known as
the Two Freedoms agreement, was concluded and opened for signature.
...
The International Air Transport Agreement, commonly known as the
Five Freedoms agreement, was also concluded and opened for
signature. . . . The number of accepting states reached a maximum of 17,
but it is now declining, 4 having denounced the agreement. . . .
A standard form of bilateral agreement for the exchange of air routes
was prepared and recommended by the Conference as part of its final
act. . . .
An Interim Agreement on International Civil Aviation was completed
and opened for signature. It came into effect on June 6, 1945, thereby
providing an interim basis for many phases of international civil
aviation and a constitution for the Provisional International Civil
Aviation Organization. The interim agreement was replaced when the
convention came into effect on April 4, 1947. . . .
Source: ICAO
 Basic Principles of
International Air Law
Territorial Sovereignty. Every State has, to the exclusion of all other
States, the unilateral and absolute right to permit or deny entry
into the area recognized as its territory and similar right to control
all movements within such territory.
National Airspace. The territory of a sovereign State is three
dimensional, including within such territory the airspace above
its national lands and its internal and territorial waters.
Freedom of the Seas. Navigation on the surface of the high seas and
flight above such seas are free for the use of all.
Nationality of Aircraft. Aircraft have the characteristic of
nationality similar to that developed in maritime law applicable
to ships. Thus aircraft have normally a special relationship to a
particular State which is entitled to make effective the privileges
to which such aircraft may be entitled and such State is also
reciprocally responsible for the international good conduct of
such aircraft.
Source: Prof. John Cobb Cooper
National Sovereignty Over Airspace
Article 1 of the Chicago Convention of 1944 reaffirms
Article 1 of the Paris Convention of 1919, by recognizing
the pre-existing rule of customary international law, that
“every State has complete and exclusive sovereignty
over the airspace above its territory.”
Territory is defined by Article 2 of the Chicago
Convention as “the land areas and territorial waters
adjacent thereto under the sovereignty, suzerainty,
protection or mandate of each State.”
Article 3 of the Law of the Sea Convention extends the
jurisdiction of coastal States to 12 miles, while Article 38
establishes a right of transit in the straits for military and
commercial aircraft.
 “Complete and Exclusive Sovereignty”
Former ICAO Council President Assad Kotaite made this point on the
willingness of States to acquiesce to intrusions on their “complete
and exclusive sovereignty”:

The adherence of States to international law is voluntary, not due to

external coercion. International law is both obligatory (when States
adhere to Conventions and treaties) and voluntary (because it is the
decision of States freely to adhere to it). ICAO has no enforcement
power, so in a sense the weakness of interional law is also its
strength: weakness because there is no authority to impose it, but
strength because this situation obliges States to work things out in
the common interest, on an equal basis. International law is not
designed to protect the interest of States, but rather to protect the
persons flying.
Assad Kotaite, My Memoirs 42 (ICAO 2013).
National Sovereignty Over Airspace
Though Article 5 of the Chicago Convention authorized
certain rights of innocent passage for nonscheduled
flights, scheduled flights were limited under Article 6 to
those situations in which the permission or
authorization of the underlying State was conferred.
Article 6 of the Chicago Convention prohibits scheduled
operations except with the permission or authorization
of the State in whose territory an aircraft wishes to fly,
and only in accordance with the terms established by
that State.
Article 7 of the Chicago Convention gives to each nation
the right to reserve cabotage to itself. The second
sentence of Article 7 prohibits States from entering “into
any arrangements which specifically grant any such
privilege on an exclusive basis to any other State or an
airline of any State, and not to obtain any such exclusive
privilege from any other State.”
 Aircraft Nationality
Article 17 of the Chicago Convention provides that,
“Aircraft shall have the nationality of the State in which
they are registered.”
Article 18 provides that aircraft may not be registered in
more than one State, though registration may be
changed from one State to another.
Article 19 provides that registration, and transfers
thereof, shall be according to the domestic laws of the
registering State.
Article 83bis allows the registration functions to be
transferred to another State better able to fulfill such
regulatory requirements.
 State Duties
Article 12 of the Chicago Convention requires that States insure that aircraft
flying over their territory or carrying their nationality mark shall comply
with the rules and regulations governing flight there in force.
Over the high seas, the rules in force are those established under the
Convention (i.e., SARPs promulgated by ICAO).
Under Article 21, the registering State must report to ICAO data revealing
the ownership and control of aircraft it registers. It also must make
available to other contracting States, or ICAO, information concerning the
registration and ownership of aircraft registered in it, on demand.
Under Articles 31 and 32, the State must provide such aircraft with a
certificate of airworthiness, and issue certificates of competency and
licenses for pilots and flight crew on such aircraft.
Under Article 30, the State must also issue licenses for aircraft radio
equipment.
Pursuant to Article 33, other States, in turn, have a duty to recognize
certificates of airworthiness and personnel certificates of competency and
licenses as valid, but only so long as the requirements under which they are
issued “are equal to or above the minimum standards which may be
established” by ICAO.
 Duties Imposed Upon Aircraft
Operators
Under Article 20, every international aircraft
must display its nationality and registration
marks.
Pursuant to Article 29, certain documents must
be carried aboard the aircraft, including its
certificate of registration, its certificate of
airworthiness, the licenses for each member of
the crew, its journey log book, its radio license,
the names and places of embarkation and
destination of any passengers aboard, and a
manifest and detailed declarations of any cargo
aboard.
 Airline Nationality
Airline nationality is nowhere addressed in the
Chicago Convention, though it has become an
important part of bilateral air transport
agreements, as well as the multilateral Transit
and Transport Agreements, whose “substantial
ownership and effective control” requirements
have effectively precluded adoption of the
maritime law notion of “flags of convenience”
into international aviation.
 Aircraft Categorization
The Chicago Convention distinguishes between civil and State aircraft,
manned and unmanned (or pilotless) aircraft, and scheduled and non-
scheduled services.
Under Article 3, the Chicago Convention explicitly applies “only to civil
aircraft,” and not to State aircraft, though the definition of “aircraft” is
nowhere defined in the Convention. Certain types of aircraft are
presumptively State aircraft, including “Aircraft used in military, customs
and police services . . . .”
Article 3(d) provides that when issuing regulations for State aircraft, the
contracting State “will have due regard for the safety of navigation of civil
aircraft.” Traffic rights are circumscribed by Article 3(c), which provides
that State aircraft may not fly over or land on the territory of another State
“without authorization by special agreement or otherwise, and in
accordance with the terms thereof.”
Article 3bis reaffirms the customary international law principle that “every
State must refrain from resorting to the use of weapons against civil aircraft
in flight”, though it can require civil aircraft flying above its territory
without permission to land at a designated airport. But “in the case of
interception, the lives of persons on board and the safety of aircraft must
not be endangered.”
 Rights of Overflight and Traffic
Rights
Scheduled Aircraft. The general rule on traffic rights is set forth in Article 6
of the Chicago Convention: “No scheduled international air service may be
operated over or into the territory of a contracting State, except with the
special permission or other authorization of that State, and in accordance
with the terms of such permission or authorization.” This provision is the
foundation for the negotiation of air transport agreements between nations,
for without permission to fly across another’s territory, a scheduled aircraft
may not enter another’s airspace
Non-scheduled Aircraft. Although the operations of scheduled aircraft are
restricted, under Article 5, aircraft engaged in non-scheduled flights enjoy
the right to fly into or across the territory of another State, and to make
stops for non-traffic purposes (first and second freedom rights). However,
the State flown over has the right to require the non-scheduled aircraft to
land, and to follow prescribed routes, or obtain special permission for such
flights.
State Aircraft. Pursuant to Article 3, State aircraft may not fly over or land
on the territory of another State “without authorization by special
agreement or otherwise, and in accordance with the terms thereof.”
Pilotless Aircraft. Pursuant to Article 8, pilotless aircraft may not fly over the
territory of a contracting State “without special authorization and in
accordance with the terms of such authorization.” Such flights must be
“controlled as to obviate danger to civil aircraft.”
 THE CHICAGO
CONVENTION AS A
SOURCE OF
INTERNATIOINAL
AIR LAW

Professor Dr.
Paul Stephen Dempsey
Director, Institute of Air & Space Law
McGill University
Copyright © 2015 by Paul Stephen Dempsey.
 Blacklisting
Professor Dr. Paul Stephen Dempsey
Director, Institute of Air & Space Law
McGill University
www.iasl.mcgill.ca

http://www.mcgill.ca/iasl/