Convention on International Civil Aviation: A Commentary

Part 1

Preamble

Ruwantissa AbeyratneConvention on International Civil Aviation2014A Commentary10.1007/978-3-319-00068-8_1© Springer International Publishing Switzerland 2014

Preamble

Ruwantissa Abeyratne¹ 

(1)

Legal Affairs and External Relations Bureau, International Civil Aviation Organization (ICAO), Montreal, Quebec, Canada

Abstract

WHEREAS the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security;

WHEREAS the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security;

WHEREAS it is desirable to avoid friction and to promote that cooperation between nations and peoples upon which the peace of the world depends;

THEREFORE, the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically;

Have accordingly concluded this Convention to that end.

At a glance, one would note that the Preamble to the Convention on International Civil Aviation (Chicago Convention), which sets the tone of the Convention, resonates a message of peace and harmony among nations of the world through aviation. The Preamble, and its raison d’etre was invoked at the 15th Session of the Assembly (Montreal, 16 June–22 July 1965) of the International Civil Aviation Organization (ICAO)¹ on the theme of peace when the Assembly adopted Resolution A15-7 (Condemnation of the Policies of Apartheid and Racial Discrimination of South Africa). The Assembly Resolution went on to say inter alia:

BEARING IN MIND that the apartheid policies constitute a permanent source of conflict between the nations and peoples of the world; and

RECOGNIZING, furthermore, that the policies of apartheid and racial discrimination are a flagrant violation of the principles enshrined in the Preamble to the Chicago Convention;

THE ASSEMBLY: …URGES South Africa to comply with the aims and objectives of the Chicago Convention.

The aims and objectives of the Chicago Convention which are enshrined in Article 44 of the Convention are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as to:

Insure the safe and orderly growth of international civil aviation throughout the world;

Encourage the arts of aircraft design and operation for peaceful purposes;

Encourage the development of airways, airports, and air navigation facilities for international civil aviation;

Meet the needs of the peoples of the world for safe, regular, efficient and economical air transport;

Prevent economic waste caused by unreasonable competition;

Insure that the rights of Contracting States are fully respected and that every Contracting State has a fair opportunity to operate international airlines;

Avoid discrimination between Contracting States;

Promote safety of flight in international air navigation;

Promote generally the development of all aspects of international civil aeronautics.

Another Assembly Resolution followed at the 17 Session of the ICAO Assembly (Montreal, 16–13 June 1970) wherein the Assembly adopted Resolution A 17-1 (Declaration by the Assembly) which stated inter alia:

WHEREAS international civil air transport helps to create and preserve friendship and understanding among the peoples of the world and promotes commerce between nations;

THE ASSEMBLY ADOPTS THE FOLLOWING DECLARATION: The Assembly of the International Civil Aviation Organization…mindful of the principles enunciated in the Convention on International Civil Aviation;

SOLEMNLY requests concerted action on the part of states towards suppressing all acts which jeopardize the safe and orderly development of international civil air transport.

At its next Session (Vienna, 15 June–7 July 1971) the Assembly adopted Resolution A 18-4 (Measures to be taken in pursuance of resolutions 2555 and 2704 of the United Nations General Assembly in relation to South Africa where the Assembly stated:

THE ASSEMBLY, recalling its condemnation of the apartheid policies in South Africa in Resolution A15-7;

RECOGNIZING the need for maximum co-operation with the United Nations General Assembly in implementing its Resolutions;

RESOLVES that as long as the Government of South Africa continues to violate the United Nations General Assembly resolutions on apartheid and on the Declaration on the Granting of Independence to Colonial Countries and Peoples;

South Africa will not be invited to attend any meetings convened by ICAO….

Two years later, the ICAO Assembly, at its 19th (Extraordinary) Session (New York, 27 February–2 March 1973) adopted Resolution A19-1 which condemned Israeli action which resulted in the loss of 108 lives.

The same year, the ICAO Assembly, at its 20th (Extraordinary) Session (Rome, 28 August–21 September 1973) adopted Resolution A20-2 (Acts of Unlawful Interference with Civil Aviation) which stated inter alia:

THE ASSEMBLY, MINDFUL that the development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet it’s abuse can become a threat to general security;

CONSCIOUS of the mandate bestowed on the International Civil Aviation Organization to ensure the safe and orderly development of international civil aviation;

REAFFIRMS the important role of the International Civil Aviation Organization to facilitate the resolution of questions which may arise between Contracting States in relation to matters affecting the safe and orderly operation of civil aviation throughout the world.

One gleans four key elements in the Preamble to the Chicago Convention: peace and friendship through aviation; safety; economical and orderly air transport.

The elements of peace and friendship have already been discussed as being reflective of the Assembly Resolutions discussed above. On safety, and its relevance projected by the Preamble to the Convention, the ICAO Council on 4 June 1973 adopted a Resolution which recalled the adoption by the United Nations Security Council of Resolution 262 in 1969 which condemned Israel for its premeditated action against Beirut Civil Airport which resulted in the destruction of thirteen commercial and civil aircraft. The Resolution urged Israel to comply with the aims and objectives of the Chicago Convention.

On the economic side, the Preamble to the Convention featured prominently in ICAO Assembly Resolution A21-28 (International Air Services Transit Agreement) adopted by the 21st Session of the Assembly (Montreal, 24 September–15 October 1974) which quoted the Preamble in part which recognized that one of the objectives of the Chicago Convention was that international air transport services may be operated soundly and economically. In pursuance of this objective, Resolution A21-28 urged Contracting States to become Parties to the International Air Services Transit Agreement which strengthened the operation of international scheduled services and facilitated the achievement of that objective.

In general terms, the Preamble to the Chicago Convention leaves no room for doubt that, being a post war instrument, its overall theme is on aviation and peace, which has its genesis in the Chicago Conference that led to the adoption of the Chicago Convention. The Conference which took place from 1 November to 7 December 1944 was inaugurated with the reading of a message to the Conference from the President of the United States. In his message, President Roosevelt, referring to the Paris Conference of 1919 which was designed to open Europe to air traffic, but unfortunately took years to be effectively implemented, stated:

I do not believe that the world today can afford to wait several years for its air communications. There is no reason why it should.

Increasingly, the aeroplanes will be in existence. When either the German or Japanese enemy is defeated, transport planes should be available for release from military work in numbers sufficient to make a beginning. When both enemies have been defeated, they should be available in quantity. Every country has its airports and trained pilots; practically every country knows how to organize airlines.

You are fortunate to have before you one of the great lessons of history. Some centuries ago, an attempt was made to build great empires based on domination of great sea areas. The lords of these areas tried to close the areas to some, and to offer access to others, and thereby to enrich themselves and extend their power. This led directly to a number of wars both in the Eastern and Western Hemispheres. We do not need to make that mistake again. I hope you will not dally with the thought of creating great blocs of closed air, thereby tracing in the sky the conditions of future wars. I know you will see to it that the air which God gave everyone shall not become the means of domination over anyone.²

Thus, President Roosevelt urged States to eschew protectionism, while encouraging them to avoid dominance over one another. Ever since, the fate of economic regulation of international air transport has become an obdurate dilemma to regulators since they were faced with the question as to how States could avoid dominance by others without protecting themselves. The elusive and delicate balance between the two is still being vigorously sought, as will be seen in discussions to follow in this paper.

The Chairman of the Conference, Adolf A Berle Jr. endorsed the President’s comments by observing:

There are many tasks which our countries have to do together, but in none have they a clearer and plainer common interest than in the work of making the air serviceable to mankind. For the air was given to all; every nation in the world has access to it. To each nation there is now available a means of friendly intercourse with all the world, provided a working basis for that intercourse can be found and maintained.³

At the Conference, the United States took the position that the use of the air and the use of the sea were both common in that they were highways given by nature to all men. They were different in that man’s use of the air is subject to the sovereignty of nations over which such use is made. The United States was therefore of the opinion that nations ought to arrange among themselves for its use in such manner as would be of the greatest benefit to all humanity, wherever situated. The United States further asserted the rule that each country has a right to maintain sovereignty of the air which is over its lands and its territorial waters. There was no question of alienating or qualifying this sovereignty. This absolute right, according to the United States, had to be qualified by the subscription by States to friendly intercourse between nations and the universal recognition of the natural rights of States to communicate and trade with each other. This right could not be derogated by the use of discriminatory measures.⁴ The fact that the United States required States to exchange air traffic rights reciprocally is clearly evident in the statement:

It is therefore the view of the United States, that, without prejudice to full rights of sovereignty, we should work upon the basis of exchange of needed privileges and permissions which friendly nations have a right to expect from each other.⁵

The privilege of communication by air with friendly countries, according to the United States was not a right to wander at will throughout the world. In this respect, it was contended that traffic by air differed materially from traffic by sea, where commerce need have no direct connection with the country from which the ship may have come. The air routes were analogous to railroad lines and the right to connect communication links between States was to establish a steady flow of traffic, thereby opening economic routes between countries. According to the United States, it was too early to go beyond this concept and States should accept the fact that what the Chicago Conference would accomplish was to adopt a Convention that would establish communication between States.⁶

The ICAO Assembly, at its 28th Session of the Assembly (Montreal, 22–26 October 1990) adopted Resolution A28-7 (Aeronautical consequences of the Iraqi invasion of Kuwait) which recalled that the Convention on International Civil Aviation is based on the belief that the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security; and that it is desirable to avoid friction and to promote that cooperation between nations and peoples upon which the peace of the world depends and noted United Nations Security Council condemnation of the invasion of Kuwait and Security Council Resolution 662 which decided that annexation of Kuwait by Iraq has no legal validity and is considered null and void and called upon all States, International Organizations and Specialized Agencies not to recognize that annexation and to refrain from any action or dealing that might be interpreted as an indirect recognition of the annexation. The Resolution also noted further, Security Council Resolution 661, which calls upon all States to take appropriate measures to protect assets of the legitimate Government of Kuwait and its agencies.

The Assembly also noted Security Council Resolution 670 which affirmed that the specialized agencies are required to take such measures as may be necessary to give effect to the terms of Resolution 661 and condemned the violation of the sovereignty of the airspace of Kuwait and the plunder of Kuwait International Airport by Iraqi armed forces including the seizure and removal to Iraq of 15 aircraft of Kuwait Airways and their purported registration by Iraq. The Assembly called upon Iraq to facilitate the early recovery by their owners of foreign registered aircraft stranded at Kuwait International Airport and declared that the unilateral registration of aircraft of Kuwait Airways by Iraqi aircraft is null and void and called upon the Iraqi government to return the Kuwaiti aircraft to the legitimate Government of Kuwait. It also requested all States in whose territory any of these aircraft are found to hand them over to the legitimate Government of Kuwait and not to supply Iraq, its companies or nationals, whether directly or indirectly, with any spare parts, equipment or supplies or services to enable Iraq to use the aircraft.

The attacks of 11 September 2001 inevitably highlighted the strategic position of civil aviation both as an industry vulnerable to attack and as an integral tool in ensuring peace and security in the world. The modernist view of civil aviation, as it prevailed when the Convention on International Civil Aviation was signed at Chicago on 7 December 1944, was centered on State sovereignty and the widely accepted post-war view that the development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to general security. This essentially modernist philosophy focussed on the importance of the State as the ultimate sovereign authority which can overrule considerations of international community welfare if they clashed with the domestic interests of the State. It gave way, in the 1960s and 1970s to a post-modernist era of recognition of the individual as a global citizen whose interests at public international law were considered paramount over considerations of individual State interests.

The 11 September 2001 events led to a new era that now calls for a neo-post modernist approach which admits of social elements and corporate interests being involved with States in an overall effort at securing world peace and security. The role of civil aviation in this process is critical, since it is an integral element of commercial and social interactivity and a tool that could be used by the world community to forge closer interactivity between the people of the world. This discussion will assess the position of civil aviation in a world community embroiled in a neo post modernist approach towards securing world peace and understanding among nations.

Until 11 September 2001, the link between civil aviation and world peace was somewhat conceptual and intellectual. However, when four civilian aircraft on United States domestic services were destroyed by terrorist acts and crews, hundreds of passengers and thousands of innocent victims in buildings located in New York City and Washington DC were killed, civil aviation ceased to be isolated from the world peace efforts and became immediately inextricably linked to overall endeavours of the world community toward achieving peace and economic sustainability.

The significance of peace and security of the world involving civil aviation was signalled by United National Resolution A/RES/421(XIV) which referred to the immediate consequences of the attacks of 11 September 2001 as the closure of civil airports in the United States and disruptions of air services. The Resolution also referred to A/RES/145(V) which concerned the safety of civil aviation in relation to tourism. The new era brought about by the paralysis experienced in terms of world trade brought in both states and their instrumentality together with the private sector to join in finding solutions toward keeping the trade machine of the world functioning.

The pursuit of peace has been inseparable from policy making and dispute settlement in affairs of aviation. Varied and chronologically sequential instances where ICAO was requested by its Contracting States to address contentious issues relating to civil aviation are reflective of the importance of political considerations that underlie such disputes and the relentless search by nations of the world to settle disputes peacefully. Although political contentions may exist between States, which is a natural corollary of Statecraft and international politics, it is not the purview of an international organization to address political motivations of individual States when considering issues referred to it or adjudicating disputes between States. In this regard, ICAO has tread a delicate line between diplomacy and objectivity.

Footnotes

1

The International Civil Aviation Organization is the United Nations specialized agency dealing with international civil aviation. ICAO was established by the Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7 December 1944. Fifty two States signed the Chicago Convention on 7 December 1944. The Convention came into force on 4 April 1947, on the thirtieth day after deposit with the Government of the United States. Article 43 of the Convention states that an Organization to be named the International Civil Aviation Organization is formed by the Convention. ICAO is made up of an Assembly, which is the sovereign body of the Organization composed of the entirety of ICAO member (Contracting) States, and a Council which elects its own president. The Assembly, which meets at least once every 3 years, is convened by the Council. The Council is a permanent organ responsible to the Assembly, composed of 36 Contracting States. These 36 Contracting States are selected for representation in the Council in three categories: States of chief importance to air transport; States not otherwise included which make the largest contribution to the provision of facilities for international air navigation; and States not otherwise included whose designation will insure that all the major geographic areas of the world are represented on the Council. Article 47 of the Chicago Convention provides that ICAO enjoys such legal capacity as may be necessary for the performance of its functions and goes on to say that full juridical personality shall be granted to the Organization wherever compatible with the constitution of the laws of the State concerned. The Council has two main subordinate governing bodies, the Air Navigation Commission and the Air Transport Committee. The Air Navigation Commission is serviced by The Air Navigation Bureau and is responsible for the examination, coordination and planning of all of ICAO’s work in the air navigation field. This includes the development and modification of SARPS) contained in the ICAO Annexes (all except Annexes 9 and 17), subject to the final adoption by the ICAO Council. At the time of writing, ICAO had 191 member States.

2

Proceedings of the International Civil aviation Conference, Chicago, Illinois, November 1–December 7 1944, Vol I & II (Washington, D.C.: U.S. Government Printing Office, 1948) at 42–43.

3

Id. 43.

4

Id. at 55.

5

Id. 56.

6

Id. 57.

Part 2

Air Navigation

Ruwantissa AbeyratneConvention on International Civil Aviation2014A Commentary10.1007/978-3-319-00068-8© Springer International Publishing Switzerland 2014

Chapter I. General Principles and Application of the Convention

Article 1. Sovereignty

Article 2.​ Territory

Article 3.​ Civil and State Aircraft

Article 3 bis

Article 4.​ Misuse of Civil Aviation

Chapter II. Flight Over Territory of Contracting States

Article 5.​ Right of Non-scheduled Flight

Article 6.​ Scheduled Air Services

Article 7.​ Cabotage

Article 8.​ Pilotless Aircraft

Article 9.​ Prohibited Areas

Article 10.​ Landing at Customs Airport

Article 11.​ Applicability of Air Regulations

Article 12.​ Rules of the Air

Article 13.​ Entry and Clearance Regulations

Article 14.​ Prevention of Spread of Disease

Article 15.​ Airport and Similar Charges

Article 16.​ Search of Aircraft

Chapter III. Nationality of Aircraft

Article 17.​ Nationality of Aircraft

Article 18.​ Dual Registration

Article 19.​ National Laws Governing Registration

Article 20.​ Display of Marks

Article 21.​ Report of Registrations

Chapter IV. Measures to Facilitate Air Navigation

Article 22.​ Facilitation of Formalities

Article 23.​ Customs and Immigration Procedures

Article 24.​ Customs Duty

Article 25.​ Aircraft in Distress

Article 26.​ Investigation of Accidents

Article 27.​ Exemption from Seizure on Patent Claims

Article 28.​ Air Navigation Facilities and Standard Systems

Chapter V. Conditions to be Fulfilled with Respect to Aircraft

Article 29.​ Documents Carried in Aircraft

Article 30.​ Aircraft Radio Equipment

Article 31.​ Certificates of Airworthiness

Article 32.​ Licenses of Personnel

Article 33.​ Recognition of Certificates and Licenses

Article 34.​ Journey Log Books

Article 35.​ Cargo Restrictions

Article 36.​ Photographic Apparatus

Chapter VI. International Standards and Recommended Practices

Article 37.​ Adoption of International Standards and Procedures

Article 38.​ Departures from International Standards and Procedures

Article 39.​ Endorsement of Certificates and Licenses

Article 40.​ Validity of Endorsed Certificates and Licenses

Article 41.​ Recognition of Existing Standards and Airworthiness

Article 42.​ Recognition of Existing Standards of Competency of Personnel

Ruwantissa AbeyratneConvention on International Civil Aviation2014A Commentary10.1007/978-3-319-00068-8_2© Springer International Publishing Switzerland 2014

Article 1 Sovereignty

Ruwantissa Abeyratne¹ 

(1)

Legal Affairs and External Relations Bureau, International Civil Aviation Organization (ICAO), Montreal, Quebec, Canada

1 Conceptual Aspects

1.1 State

1.2 Sovereignty

1.2.1 Theoretical Aspects

1.2.2 Practical Aspects

1.2.3 Territoriality

1.2.4 Air Space and Outer Space

1.2.5 Drones and Sovereignty

References

Abstract

The contracting States recognize that every State has complete and exclusive sovereignty over the air space above its territory.

The contracting States recognize that every State has complete and exclusive sovereignty over the air space above its territory.

1 Conceptual Aspects

State

With regard to what a State constitutes at law, The Montevideo Convention of 1933 in its Article 1 provides that a State as a legal person of international law should possess: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.¹ Jurists have argued that this list is not exhaustive and that the four elements themselves have to be further elaborated. Accordingly, it has been said that a permanent population should essentially connote a stable community, the absence of which in a given territory would effectively preclude that territory from being designated a State at law. With regard to defined territory the acceptable notion is that it must be politically controlled by the stable community mentioned above. By government is usually meant a defined legal order that has the three separately identifiable factors of the legislature, judiciary and the executive.

The tripartite legal doctrine of separation of powers, which Baron de Montesquieu propounded through his theory on the division of political power among a legislature, an executive and a judiciary, advocates that the three branches of government (legislative, executive, judicial) exist largely independent of each other, with their own prerogatives, domains of activity, and exercises of control over each other. According to this philosophy, the legislative body has control of the executive finances, and has judiciary powers.² It also has control of the way the judiciary works. The judiciary often has control of laws not being contradictory to the constitution or other laws and it has the power to correct and control the way the executive body exercises its powers (to execute the law). The executive is the arm of government that has sole authority, power and responsibility for the daily administration of the State, and for executing the law of the land.

This separation is essential for ensuring the legal maxim Omnia praesumuntur rite et solemniter esse acta (all acts are presumed to have been done rightly and regularly). It would also ensure good governance. Overall public interest in good governance is now a common feature in the modern state, and is not restricted to the academics and practitioners who bore the burden of evaluating governance in the past. The increasing concern and interest in good governance may be attributed to the public being more educated and aware than before, which is now popularly known as civic literacy, coupled with the proliferation of complex issues that have emerged with globalization and an international awareness that has spread to national boundaries. Therefore, an empirical demonstration of good governance has now become a compelling need that could provide the necessary tools for the public to develop their own desired models of governance which are capable of delivering goods that accord with their expectations.

Essentially, governance, which is critical to the proper running of a State, is a set of responsibilities and practices that are aimed at achieving strategic direction and ensuring that objectives are achieved. Indicators of good governance are: involvement of citizens; accountability of actions of the governing body; transparency; equality in social inclusion (gender, ethnicity, age, religion etc.); ethical conduct; integrity; ability to compete in a global environment; ability to work as partners with other governments or bodies; fair procedures and due process; and respect for the rule of law. A State’s adherence to the rule of law is extremely important as a determinant of good governance. It carries the principle that law (as administered by the ordinary courts) is supreme and that all citizens (including members of the government) are equally subject to it and equally entitled to its protection.

As regards independence as the fourth feature of a State, it is tied up in the Montevideo Convention to the ability and capacity to enter into relations with other States, and is widely recognized as the decisive factor in the determination of Statehood. Preeminent in this issue is the essential requirement for a State to have a certain centrality in its functions and protection from interference from other States or entities.

In modern parlance, two other requirements for Statehood have been identified: willingness to observe international law; and a certain degree of civilization.

Sovereignty

Theoretical Aspects

Recognition by States of their sovereignty over their airspace inevitably presupposes that this rule has already been entrenched in the annals of air law in an earlier instrument. The Convention Relating to the Regulation of Aerial Navigation signed by 26 States on 13 October 1919 established that the High Contracting Parties recognize that every Power has complete and exclusive sovereignty over the airspace above its territory. ³

Even the 1919 Paris Convention merely recognized sovereignty of every State over the airspace above its territory. This means that sovereignty over airspace was already an established right at international law.

The concept goes back in time: to Roman times in fact:

States claimed, held, and in fact exercised sovereignty in the air space above their national territories…and that the recognition of an existing territorial airspace of States by the Paris Convention of 1919 was well founded in law and history.⁴

The Roman State adopted an all-embracing approach in ensuring the protection of private and public rights of its citizens. It could not have assumed full jurisdiction to lay down rules for its citizenry unless it exercised rights of sovereignty in airspace as well as on land. The genesis of the concept of sovereignty in airspace is traced to Emperor Justinian’s Corpus Juris Civilis, where the concept seemed to be an inference from a passage in the Digest.⁵ Accordingly, airspace at that time became, at international law a contentious issue when it came to justifying the removal of projections from an adjoining property over a place of burial. Bouve added the view that airspace was new space added to accommodate man’s ability to fly.⁶ Thus, the right bestowed by the private law maxim Cujus est solum, ejus est usque ad coelom was formally entrenched as a absolute right of a person under ancient Roman law. This maxim, which means that a right of land ownership brings with it rights of ownership of airspace above the land, was later found to be unacceptable as an absolute rule. Disparaged by some commentators as the product of some black letter lawyer,⁷ the rule was later adapted to mean that no nation acquired any domain in what was known as navigable airspace until such domain was needed to protect subjacent territory.⁸

The doctrine of sovereignty was introduced to the Western world by the French philosopher Bodin. At a time when political attitudes were in transition from the dominance of the universal church to a universal legal order, Bodin introduced sovereignty as a supreme power over citizens and subjects that was not itself bound by laws. Bodin elaborated that every independent community had to consider that while acknowledging the authority of the law, a State was above the law if it wished to govern successfully. Other jurists who supported the theory of exclusive sovereignty were Hugo Grotius, who maintained that sovereign States were independent of foreign control, and Thomas Hobbes, who said that sovereignty was absolute and its misuse was unthinkable. John Locke attempted to compromise the absolute quality of sovereignty by opining that sovereignty was not absolute and unquestionable in that it was an exchange of social trust between the government and the people. Accordingly, there was an inarticulate premise that a breach of the social trust between the two parties would erode the concept of sovereignty.

The important question is how is sovereignty determined? Both juristic and judicial opinion favor the view that sovereignty of airspace should be determined on the role played by the importance of subjacent airspace in its relation to land and sea. In other words, a symbolic possession of the airspace is necessary in order that States can claim sovereignty over their airspace. Therefore, the concept of sovereignty becomes compatible with the concept of ownership of property with possession by the owner, to the exclusion of others. To determine sovereignty in airspace, three elements would have to be resolved: the use of airspace; the nature of its possession; and the nature of its control to the exclusion of others.

The use of airspace is inextricably linked to the social needs that the airspace in question would subserve. Roscoe Pound envisaged that one of the fundamental bases for the control and use of property was its sociological importance. There is no difficulty in establishing a nexus between the sociological value of territorial land and sea and the protection offered to them by the subjacent air space of a country. Weber and Erlich both contended that the law is not a formal set of rules but a prime method of establishing order in society and accordingly required a person merely to show incontrovertible reason for the need to possess property. The final element—the nature of control of airspace—can be subsumed in modern juristic thought; that the modern interpretation of the concept of sovereignty is not the ability to make war or to exploit others, but to legislate over a given State or community.

Perhaps the most convincing justification for the acceptance of sovereignty in airspace as the fundamental legal norm in air law is seen in Hans Kelsen’s pure theory of the law. Kelsen considered that all international laws derived their basis from a grundnorm or a basic legal postulate derived purely from law and not from morality. This basic norm was international custom. In this context, the philosophy of air law is founded on the concept of sovereignty in airspace and would sustain its credibility through this customary concept. The basic idea of sovereignty is then taken to its final conclusion and ultimate justification by Pound when he states that

Men must be able to assume in civilized society that they may control, for purposes beneficial to themselves, what they have created by their own labor and what they have acquired under existing social and economic order. This is a final postulate of civilized society

By the end of the nineteenth century, the private law concept of absolute ownership of airspace over land was antiquated. The beginning of the twentieth century saw the emergence of States’ sovereignty in airspace. The impetus for public international law to take over the issue of rights over airspace was given by the August 1904 aerial incident where Russian guards shot down the German balloon Tschudi when it was flying outside Russian territory and two unrelated but similar incidents that occurred in 1908 and 1910 respectively. The French Government hastened to call a conference of European powers in 1910. For the first time, participating States at this conference recognized airspace as belonging to individual States.

Sovereignty in international law is the right to exercise the functions of a State to the exclusion of all other States in regard to a certain area of the world. In international aviation the concept of sovereignty is the fundamental postulate upon which other norms and virtually all air law is based. Post World War II attitudes towards the concept of sovereignty in airspace and the philosophy of air law range between the unlimited public law right of a State to exercise sovereignty over its airspace and the idea of free movement of air traffic. Professor O.J. Lissitzyn analyses the concept of sovereignty in its modern development as having three basic principles: that each State has exclusive sovereignty over its airspace; each State has complete discretion as to the admission of any aircraft into its airspace; and, that airspace over the high seas and other areas not subject to a State’s jurisdiction is res nullius and is free to the aircraft of all States.

Sovereignty, in its pristine sense, involved independence of a State in regard to a portion of the globe and the right to exercise therein, to the exclusion of any other State, the function of a State. However in the 1960s and 1970s, a shift in focus of international law, later fuelled by the end of the Cold War, impelled legal scholars to view the concept of sovereignty as veering from the normative perspective of exclusivity to an approach accommodating globalization and democratization. Although political theory and social justice may have caused, through such events as the disintegration of the Warsaw Pact; the reunification of Germany; and the emergence of the Commonwealth of Independent States, a paradigm shift from exclusive sovereignty to extended sovereignty, particularly with regard to the exercise of some control over the high seas pertaining to air navigation, it remains to be seen whether a clearly identifiable and distinct legal regime exists in this field.

Sovereignty has two attributes:

Internal sovereignty, whereby a State exercises its exclusive right and competence to determine the character of its own institutions and to provide for their function. Internal sovereignty also includes the exclusive power of a State to enact its own internal laws and to ensure their respect; and

External sovereignty, whereby a State freely determines its relations with other States or entities without the restraint or control of another State.

Justice Huber noted in the 1928 Island of Palmas case:

Sovereignty in the relations between States signifies independence. Independence in relation to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State. The development of the national organization of States during the last few centuries and, as a corollary, the development of international law, have established this principle of exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. Sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular State.⁹

Professor Bin Cheng addresses the principles governing post World War II sovereignty over airspace as enunciated in Article 1 of the Chicago Convention and concludes:

The now firmly established rule of international law that each State possesses complete and exclusive sovereignty over the airspace above its territory means that international civil aviation today rests on the tacit acquiescence or express agreement of States flown over.¹⁰

Ian Brownlie, Professor of International Law at Oxford University cites the principle corollaries of the sovereignty and equality of States as:

a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; a duty of non-intervention in the area of exclusive jurisdiction of other States; and the dependence of obligations arising from customary law and treaties on the consent of the obligor.¹¹

A more modern view is that which is taken by Brownlie (cited above) who, in his book Principles of Public International Law states that the term sovereignty is synonymous with independence. Article 2.4 of the United Nations Charter exhorts all members of the United Nations to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. In keeping with this fundamental premise, the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States emphasized that no state has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State. The Declaration went on to say that consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or its political, economic and cultural elements, are condemned. This principle was reaffirmed in the 1970 Declaration on Principles of International Law contained in United Nations General Assembly Resolution 2625.

Starke is inclined to stretch the principle of sovereignty to accommodate external involvement by a State in the affairs of another in special circumstances:

… Sovereignty has a much more restricted meaning today than in the eighteenth and nineteenth centuries when, with the emergence of powerful highly nationalized States, few limits on State autonomy were acknowledged. At the present time there is hardly a State which, in the interests of the international community, has not accepted restrictions on its liberty of action. Thus most States are members of the United Nations and the International Labour Organization (ILO), in relation to which they have undertaken obligations limiting their unfettered discretion in matters of international policy. Therefore, it is probably more accurate today to say that the sovereignty of a State means the residuum of power which it possesses within the confines laid down by international law. It is of interest to note that this conception resembles the doctrine of early writers on international, law, who treated the State as subordinate to the law of nations, then identified as part of the wider law of nature.¹²

United Nations Secretary General Kofi Annan in defining sovereignty said:

State sovereignty is being redefined by the forces of globalization and international cooperation. The state is now widely understood to be the servant of its people, not vice versa. At the same time, individual sovereignty --the human rights and fundamental freedoms of each and every individual as enshrined in our Charter-- has been enhanced by a renewed consciousness of the right of every individual to control his or her own destiny.¹³

Sovereignty technically precludes intervention by one State in the affairs of another. Starke is inclined to stretch the principle of sovereignty to accommodate external involvement by a State in the affairs of another in special circumstances:

The principle of non-intervention is part of international law and is based on the recognition of the territorial sovereignty and integrity of States. Intervention is not permitted at international law if such adversely affects the free choice of States made by virtue of State sovereignty. Intervention becomes unacceptable when it restricts free choice of a State.¹⁴

The above notwithstanding, it is incontrovertible that sovereignty is no longer an absolute concept that would shield States against any internal acts of aggression or irrationality against its citizens. Sovereignty can therefore no longer be accepted in the international for a as seen an absolute protection against interference. It is no longer an absolute right but a charge of responsibility on a State where it e is accountable to both domestic and external constituencies. A Brookings Institute study has recently revealed that in internal conflicts in Africa, sovereign states have often failed to take responsibility for their own citizens’ welfare and for the humanitarian consequences of conflict, leaving the victims with no assistance. Therefore, what is needed is a delicate balance between respect for State sovereignty and protection of the citizenry against arbitrary and capricious acts of States.

Practical Aspects

From an aviation perspective, the first official instance of sovereignty of airspace under Article 1 of the Chicago Convention being recognized at ICAO was at its 21st Assembly (held in Montreal from 24 September to 15 October 1974) where the Assembly adopted Resolution A21-7 (the Airport of Jerusalem) where the Assembly recognized that Jerusalem airport lay in the Arab occupied territories and was registered under the jurisdiction of Jordan in ICAO’s Middle East Air Navigation Plan. The Assembly, in the context of Article 1 of the Chicago Convention, resolved that all Contracting States to the Convention should take all necessary measures to refrain from operating, or giving permission to any airline to operate any air service, whether scheduled or non-scheduled, to or from Jerusalem airport, unless prior permission is granted pursuant to the relevant article¹⁵ of the Chicago Convention.

At the same session, the Assembly adopted Resolution A21-21 (Consolidated Statement of Continuing Policies and Associated Practices Related Specifically to Air Navigation) Appendix N of which declared that any Contracting State which delegated to another State the Responsibility for providing air traffic services over its territory to another State by mutual agreement did so without delegation of its sovereignty.

At the same session the Assembly (Montreal, 24 September–15 October 1974) adopted Resolution A21-21 (consolidated statement of continuing policies and associated practices related specifically to air navigation) Appendix N of which resolved inter alia that any Contracting State which delegates to another State the responsibility for providing air traffic services within airspace over its territory does so without derogation of its sovereignty.

Encroachment on the sovereignty over the territory of one State by another has been subject to consideration by the ICAO Council on several occasions.

On 24 February 1996, the United States registered private (general aviation) civil aircraft were shot down by Cuban military aircraft, which resulted in the loss of four lives. Consequent upon information received from the United States authorities of the incident, the President of the ICAO Council, on 26 February 1996, wrote to the Government of Cuba expressing his deep concern and requesting authentic and authoritative information pertaining to the incidents.¹⁶ Further developments ensued on 27 February 1996 when the United States formally requested that the Council of ICAO consider the matter under Article 54(n) of the Chicago Convention, and, on the same day, the United States Security Council issued a statement through its President deploring the shooting down, by Cuban military aircraft, of the two United States registered aircraft. The Security Council also alluded to Article 3 bis of the Chicago Convention and the Montreal Protocol of 1984 which provide that States must refrain from the use of weapons against civil aircraft in flight and must not endanger the lives of persons on board and the safety of aircraft. The Security Council requested the ICAO Council to look into the matter and report to it as soon as possible.¹⁷ For its part, Cuba, in its communications to the President of the Council, chronicled a series of chronological violations by United States registered aircraft. This was followed by a further communication on 28 February 1996 from the Cuban Ministry of Foreign Affairs addressed to the Secretary General of ICAO alluding to a series of violations, which had allegedly increased in number over a 20 month period, of Cuban airspace by civil aircraft registered and based in the United States. The Government of Cuba urged ICAO to carry out an extensive investigation into the violations, repeated over the years, of Cuban airspace by aircraft coming from the United States, including the incidents of 24 February 1996.

The communications received by ICAO with regard to the incidents of 24 February 1996 clearly required the Organization, under Article 54(n) of the Chicago Convention, to investigate two issues:

The incidents of 24 February 1996, an investigation into which was requested both by the United States and Cuba; and

Repeated violations of Cuban airspace by aircraft registered and based in and coming from the United States, alleged by Cuba which requested an investigation.

When the abovementioned issues were addressed by the ICAO Council on 6 March 1996, the position taken by the United States was primarily based on Article 3 bis of the Chicago Convention, whereby the US claimed that there was a duty incumbent upon every State to refrain from resorting to the use of weapons against civil aircraft in flight. Accordingly, the United States claimed that the Cuban action was a blatant violation of international law and that firing on unarmed, known civil aircraft could never be justified. The United States claimed that, consequently, as required at international law, the Cuban Government should pay appropriate compensation to the families of those whose lives were lost.¹⁸

In response, the Cuban Delegation claimed that Cuba had been a victim of violations of its sovereignty and territorial integrity for many years which involved aircraft coming from the territory of the United States and that, over the past 20 months, as many as 25 such incursions and violations had been detected by Cuba. Cuba also counterclaimed that, in response to the reference by the United States of Article 3 bis, there was a stipulation in the Article obliging every civil aircraft to comply with orders of the subjacent State making the State of origin of the aircraft obligated to ensure compliance with such orders. Another argument adduced by Cuba was that paragraph (d) of Article 3 bis, that each Contracting State was required to take appropriate measures to prohibit the deliberate use of any civil aircraft registered in that State, inter alia, for any purpose inconsistent with the Chicago Convention, was applicable to the instances concerned.

The overall trend in the Council, when the US–Cuba dispute was taken up, was indicative of a consensus that action taken by Cuba was deplorable¹⁹ and, in the words of the United Kingdom which seemingly echoed the general view: the principle is simple. Weapons must not be used against civil aircraft in international and civil aviation.²⁰ On the issue of violation of airspace, which was brought up by Cuba, many States voiced the view that there was indeed an obligation on the part of all States to refrain from violating the sovereignty of States, while some States focused their attention on Article 4 of the Convention which requires that civil aviation must not be used for any purpose inconsistent with the aims of the Convention.

The United Nations Security Council adopted Resolution 1067, adopted on 26 July 1996, after noting various statements and resolutions by the President of the Security Council and International Civil Aviation Organization (ICAO) deploring the shooting down of two civilian aircraft by the Cuban Air Force on 24 February 1996, the Council called on Cuba to comply with international obligations relating to aviation, particularly the Convention on International Civil Aviation.

The Security Council recalled the sovereignty that all countries had in the airspace above their territory and territorial waters. In this regard, all countries had to abide by principles, rules and standards in the Convention on International Civil Aviation (Chicago Convention), including rules relating to the interception and non-use of weapons against civil aircraft.

The Resolution noted that the shooting down of the two planes, which were part of the Brothers to the Rescue organisation run by Cuban exiles, was a violation of the principle that no weapons were to be used against civil aircraft in flight and that, when intercepting such aircraft, the lives of those on board not should be jeopardised. Cuba had argued that the flights were provocative acts in its airspace. Condolences were expressed to the families of the four persons who died as a result of the interception, which was condemned by the Council. All the parties were called to respect international civil aviation laws and procedure, while at the same time reaffirming the right of states to use appropriate measures against aircraft being used for purposes contrary to that of the Chicago Convention.

Due to its inherent complexities, this was clearly one issue which demanded that ICAO’s diplomatic fabric be tested to its limits. The wisdom and diplomacy of the President of the Council proved invaluable when he advised the Council of the three alternatives available to Council in its pronouncement: resolution; decision; or conclusion. The President further advised the Council that whether the Council pronounced by resolution, by decision or by conclusion, any one of these would be binding in terms of implementation. Consequently, the President of the Council presented a revised version of the draft Resolutions presented by both the United States and by Cuba, for consideration of the Council. The draft Resolution suggested by the President, while recognizing that the use of weapons against civil aircraft in flight is incompatible with elementary considerations of humanity and the norms governing international behaviour, reaffirmed that States must refrain from the use of weapons against civil aircraft in flight and that, when intercepting aircraft, the lives of persons on board and the safety of the aircraft must not be endangered. For action, the draft Resolution required that the Secretary General initiate an investigation into the shooting down of the aircraft immediately, in particular with reference to the request of the United Nations Security Council Resolution, and that the Report of such investigation should be made available to the Council within 60 days in order to be transmitted to the United Nations Security Council.²¹

As to the relevance of including a reference to Article 3 bis in the Resolution, the President of the Council advised that Article 3 bis merely recognized a principle of customary international law and there was an addition to the principles embodied in the Convention. As such, it was the President’s view that there was no need for the resolution to reaffirm an Article which in effect was an affirmation of the humanitarian principles already incorporated in the text.²² It is noted that, by effectively precluding the express mention of a principle of customary international law as incorporated into the Chicago Convention, the Council played its ultimate role in diplomacy and political rectitude, by staying within the parameters of its own jurisdiction and avoiding incursions into judgment prior to facts being properly ascertained.

The final Resolution of the ICAO Council, adopted on 27 June 1996 following the Report of the Secretary General, embodies two critical principles. These were that the Council recalled and recognized the principle that every State has complete and exclusive sovereignty over the airspace above its territory and that the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto; and that States must refrain from the use of weapons against civil aircraft in flight and that, when intercepting civil aircraft, the lives of persons on board and the safety of the aircraft must not be endangered. Integral to the Resolution was also the principle that each Contracting State should ensure that appropriate measures are taken to prohibit the deliberate use of any civil aircraft registered in that State or operated by an operator who has his principal place of business or permanent residence in that State for any purpose inconsistent with the Chicago Convention. The Council’s condemnation of the use of weapons against civil aircraft involved the explicit mention of Article 3 bis at this advanced stage of the resolution making process, which, when examined from a diplomatic perspective, is seemingly appropriate and purposeful.

The Council Resolution was an example of the comprehensive manner in which the Council addresses issues referred to it under Article 54(n). Additionally, the Resolution masterfully indicates the views of the Council by recognizing that, while on the one hand it should be recognized that all states have complete and exclusive sovereignty over the air space above their territories and that such sovereignty should not be encroached upon, on the other hand States do not have the right to use weapons against aircraft endangering the lives of those on board, no matter what the circumstances.

In the consideration of ICAO’s role as a specialized agency of the United Nations which is from time to time called upon to address contentious issues at the request of its Contracting States, it is inevitable that some determination must be made on whether ICAO should refrain from transgressing the parameters of international politics within its diplomatic efforts. The US–Cuba issue was clearly one where the ICAO Council traversed the diplomatic rope with a balanced sense of purpose and dedication to its role. The duality of sovereignty and protection of its territory by a State balanced well with the somewhat peremptory admonition that whatever the rights of a State may be, the use of weaponry could not be condoned under any circumstance.

The extent to which ICAO will be exposed politically in issues addressed by the Council is perhaps best illustrated by the consideration of the Council, in 1988 of the Iran Air incident. This concerned the shooting down of an Iran Air Airbus A300 (IR655) carrying commercial passengers on a scheduled flight from Bandar-Abbas (Iran) to Dubai. The aircraft was brought down by the U.S.S. Vincennes over the Persian Gulf, resulting in the death of all 290 persons on board the aircraft. The incident, which occurred on 3 July 1988, was considered by the Council at several of its meetings, notably on 7 December 1988 when the Council adopted its decision. The Council decision, while recalling the event of 3 July 1988, acknowledged the fact finding investigation report of the Secretary General of ICAO, and urged all States to take all necessary action for the safety of navigation of civil aircraft, particularly by assuring effective coordination of civil and military activities. The Resolution went on to refer to the fundamental principle of general international law that States must refrain from resorting to the use of weapons against civil aircraft and urge States to ratify Article 3 bis as soon as possible if they had already not done so.

One of the emergent facts about the ICAO Council which became clear was the Council’s resolve to address its deliberations to purely technical issues pertaining to the incident, while stringently avoiding political issues and pitfalls. This is certainly true of all incidents discussed above, where the Council restricted its scope to technical issues as applicable to the principles embodied in the Chicago Convention.

Take concerted action towards suppressing all acts which jeopardized the sage and orderly development of international air transport. In this context, the most forceful example of ICAO’s role can be seen in Resolution A20-2—Acts of Unlawful Interference with Civil Aviation, adopted in March 1973 by the Assembly, which reaffirmed ICAO’s role as facilitating the resolution of questions which may arise between Contracting States in matters affecting the safe and orderly operation of civil aviation throughout the world.²³

On 1 September 1983, the President of the Council of ICAO received a communiqué from the Minister of Foreign Affairs of the Republic of Korea that Flight KE 007 which was being carried out by a Korean Airlines Boeing 747 passenger airliner had disappeared off the radar screens after it took off from Anchorage, Alaska on 31 August 1983 bound for Seoul. The Minister requested ICAO’s assistance with regard to ensuring the safety of the passengers, crew and aircraft.²⁴ The diplomatic response of the President was instantaneous and immediate, containing a message to the Minister of Civil Aviation of the USSR. It stated that information had been received by ICAO that an aircraft may have possibly landed in Soviet territory and that ICAO was confident that the Soviet authorities were rendering all assistance to persons and property concerned.²⁵

As an initial response to the incident, the ICAO Council met in extraordinary session on 15 and 16 September 1983 at the request of the Government of the Republic of Korea and the Government of Canada, and adopted a resolution which averred to the fact that a Korean Air Lines civil aircraft was destroyed on September 1, 1983 by Soviet military aircraft. The Council, by Resolution, expressed its deepest sympathy to the families bereaved in this tragic incident; and reaffirmed the principle that States, when intercepting civil aircraft, should not use weapons against them. Inter alia, the Resolution also deplored the destruction of an aircraft in commercial international service resulting in the loss of 269 innocent lives and recognized that such use of armed force against international civil aviation is incompatible with the norms governing international behaviour and elementary considerations of humanity and with the rules, Standards and Recommended Practices enshrined in the Chicago Convention and its Annexes. The Council directed the Secretary General to institute an investigation to determine the facts and technical aspects relating to the flight and destruction of the aircraft and to provide an interim report to the Council within 30 days of the adoption of this Resolution and a complete report during the 110th Session of the Council. All parties were requested to cooperate fully in the investigation.

The issue was further discussed under the auspices of ICAO at the 24th (Extraordinary) Session of the ICAO Assembly which met at Montreal from 20 September to 7 October 1983 with the participation of 131 Contracting States. In the general discussion, much attention focused on the tragedy of the Korean Airlines flight 007 and on the resolutions of the Extraordinary Session of the Council. The Assembly adopted Resolution A24-5 which, while endorsing Council action taken so far, urged all Member States to cooperate fully in their implementation.

During the Assembly, the Delegation of Canada presented a proposal for a new Convention on the Interception of Civil Aircraft²⁶ and the Assembly referred the proposal to the Council of ICAO for further study on the understanding that the Council was empowered to consider the inclusion of this item into the General Work Programme of the Legal Committee.

At its 138th Session, the Council examined the interim report of the ICAO investigative team into the KAL 007 incident and progress made in collecting facts regarding the shooting down of the aircraft. The Council noted the excellent cooperation provided to the ICAO investigative team by the Contracting States concerned and noted that a final report on the ICAO investigation would be placed by the Secretary General before the Council at its 139th Session.

The completed report of the Secretary General was presented to the Council during its 139th Session²⁷ and the Council closed the matter of KAL 007 on 14 June 1993. From a diplomatic perspective, and irrespective of the findings of the Report—which are not relevant to this work—it must be noted that the outcome of the Report and discussions that ensued in the Council endorsed the usefulness of the Council. As reflected in the Statement issued in Council by the Republic of Korea:

The Council must once again make it clear to the world that, while reaffirming the principle of prohibition of the use of arms against civil aircraft, it unreservedly condemns the destruction of a civilian aircraft simply because