Where'd It Come From

Before the advent of aircraft, law-makers cared little for the sky above. Even when Ghenghis Khan's falcons preceded his master's hoards of horseback warriors, it was probably a welcome intrusion on airspace: a life-saving signal to run and hide!

But balloons made way to dirigibles, then to winged aircraft. In the First World War, weapons were fitted onto aircraft and the world took notice. All nations and states looked up and demanded and enforced sovereignty over their respective territories.

This phenomenon continues today as most states do not care or attempt to legislate that slice of outer space above its territory. As aircraft start to fly in and out of the Earth's atmosphere in outer space, and the military use of outer space creates difficulty, the advent of outer space law is upon us, awkwardly based upon air law.

In 1919, the United States, the "British Empire", Brazil, France, Greece, Italy, Japan, Poland, Czechoslovakia and several other countries signed a Convention Relating to the Regulation of Aerial Navigation, also known as the Paris Convention 1919.

aircraftArticle 1:

"The High Contracting Parties recognize that every Power has complete and exclusive sovereignty over the air space above its territory. For the purpose of the present Convention, the territory of a State shall be understood as including the national territory, both that of the mother country and of the colonies, and the territorial waters adjacent thereto."

Both the signatories to the 1919 Convention and other states, quickly modified their domestic law to reflect their newfound heavenly jurisdiction.

England was the first off the mark with their Air Navigation Act 1920 and an unequivocal preamble:

"The full and absolute sovereignty and rightful jurisdiction of his Majesty extends, and has always extended, over the air...."

In 1958, the United States adopted its own version of sovereignty to the heavens. Eventually, the Federal Aviation Act  was incorporated into the United States Code, Title 49, §40103:

"The United States Government has exclusive sovereignty of airspace of the United States."

But the original 1958 version had read:

"The United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States, including the airspace above all inland waters and the airspace above those portions of the adjacent marginal high seas, bays and lakes, over which by international law or treaty or convention the United States exercises national jurisdiction...."

Once this foundation of aerospace sovereignty was grounded, states began to realize that aircraft were not only weapons but also facilitators of trade and commerce. And in international law, necessity, and profit, are always the mothers of invention.

The 1919 Paris Convention had also provided for innocent passage of the aircraft of other jurisdictions in times of peace.  All aircraft were required to be registered in a single state and thus have a nationality. The 1919 Convention prohibited aircraft from carrying explosives or weapons. An international dispute resolution bureaucracy was set up called the International Commission for Air Navigation.

The 1919 Convention was a good start, a solid spark to air law.

But its first problem was that it lacked notable signatories such as Germany, China and Russia. In any event, it soon ran headlong into the Second World War.

ChicagoChicago Convention signatures

In 1944, delegates met in Chicago, Illinois and agreed upon a new convention which has formed the basis of air law ever since, both domestically and internationally. The Chicago Convention adopted most of the 1919 Convention, in particular the all-important statement of aerospace sovereignty.

The agreement arived at in Chicago in1944 was actually a package of five sub-agreements, each severable from the whole. In the aggregate, the Convention became  known principally for its five freedoms which the signatories granted to each other. They were contained in a sub-agreement called International Air Transport Agreement:

  • The right to fly across another's territory without landing;
  • The right to land for non-traffic purposes (such as to re-fuel);
  • The right to put down passengers and cargo taken on in the territory of the aircraft's nationality;
  • The right to take passengers and cargo destined for the territory of the aircraft's nationality; and
  • The right to take on passengers and cargo, and to drop-off passengers and cargo destined for, or coming from the territory of any state signatory to the Chicago Convention.

As states are want to do in international law, and as was anticipated by the drafters, states cherry-picked the sub-agreements. In the result, international air law became and still is a hodgepodge of law. There is no consistent body of air law and the Chicago Convention 1944 is not a single voice of air law.

But a strong crop of bilateral agreements between friendly states and based on the five freedoms, quickly surfaced and spawned and with each, international air law grows ever-closer to homogeneity.

The Chicago Convention of 1944 also created an independent agency, the successor to the International Commission for Air Navigation. The new agency still exists and is a major player in international law: the International Civil Aviation Organization (ICAO), based in Montréal.

The Chicago Convention, 1944, is known throughout the world by its formal title, the Convention on International Civil Aviation. It was signed on December 7, 1944.

2006

The Convention is a 100-page+ document, amended eight times since 1944, and formerly housed at the ICAO, which publishes an online version in many different languages. Still today, the articles of the Convention on International Civil Aviation form a succinct code of law without which carriage by air would be impossible on the scale at which it  presently functions. For example, from the 2006 9th edition:

Sky clouds"3. This Convention shall be applicable only to civil aircraft, and shall not be applicable to (military, customs and police services) ... aircraft. No (military, customs and police services) aircraft shall fly over the territory of another state or land thereon without authorization....

7. Each contracting state shall have the right to refuse permission to the aircraft of other contracting states to take on in its territory passengers, mail and cargo carried for remuneration or hire and destined for another point within its territory.

8. No aircraft capable of being flown without a pilot shall be flown ... over the territory of a contracting state without special authorization....

9. (a) Each contracting state may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other states from flying over certain areas of its territory....

9(b) Each contracting state reserves ... the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety, and with immediate effect, temporarily to restrict or prohibit flying over the whole or any part of its territory....

16. The appropriate authorities of each of the contracting states shall have the right, without unreasonable delay, to search aircraft of the other contracting states on landing or departure....

36. Each contracting state may prohibit or regulate the use of photographic apparatus in aircraft over its territory.

68. Each contracting state may, subject to the provisions of this Convention, designate the route to be followed within its territory by any international air service and the airports which any such service may use.

89. In case of war, the provisions of this convention shall not affect the freedom of action of any of the contracting states affected, whether as belligerents or as neutrals. The same principle shall apply in the case of any contracting state which declares a state of national emergency and notifies the fact to the (ICAO)."

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