Behind and Beyond the Chicago Convention: The Evolution of Aerial Sovereignty 9789403511313

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Behind and Beyond the Chicago Convention The Evolution of Aerial Sovereignty

Edited by Pablo Mendes de Leon and Niall Buissing

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Editors

Pablo Mendes de Leon is Professor of Air and Space Law and Director of the International Institute of Air and Space Law of Leiden University, which is one of the leading international scientific research and teaching institutes in the world, specialized in legal and policy issues regarding aviation and space activities. In addition to his duties as Director of the International Institute of Air and Space Law of Leiden University, Pablo Mendes de Leon maintains a vast range of memberships in organizations that work to combine law and practice of aviation law and policy. He is the author of a large number of publications on topical issues regarding aviation law and policy. Niall Buissing is Academic Coordinator at the International Institute of Air and Space Law of Leiden University, where he is responsible for the Advanced LLM in Air and Space Law programme. In addition, Niall Buissing holds the position of Director of the International Air Law Moot Court Competition. In previous positions, he has worked at the International Civil Aviation Organization (ICAO) in Montreal and the Dutch Ministry of Economic Affairs, dealing with European Union (EU) affairs. During and after his studies, Niall Buissing has written on topical issues relating to EU aviation law and policy, competition law, State aid and drones.

v

Contributors

Alexander Batalov currently serves as Alternate Representative of the Russian Federation on the Council of ICAO and member of the Air Navigation Commission of ICAO in Montreal, Canada. He has obtained his main law degree and candidate of juridical sciences degree (PhD equivalent) from Moscow State University. He holds an Advanced LLM (master of laws) in International Air and Space Law from Leiden University. Roberto Cassar is an Associate with Camilleri Cassar Advocates (Valletta, Malta) where he has a broad practice across all areas of the firm, with a focus on litigation and defence, as well as aviation, space and telecommunications law. Roberto read law at the University of Malta (2016) before proceeding to Leiden University, where he obtained an Advanced LLM (master of laws) in Air and Space Law (cum laude). Roberto has contributed to leading books and journals relating to air and space law and is a visiting lecturer at the University of Malta where he teaches the same branch oflaw.

Vincent Correia is Professor of Public Law at the University of Paris-Saclay. He is also a visiting professor at the Advanced LLM in Air and Space Law programme at Leiden University. He is a committee member of the European Air Law Association (EALA) and the Societe Franr;aise de Droit Aerien et Spatial. He is Co-editor of the Revue Franr;aise de Droit Aerien et Spatial, and he is member of the Board of Editors of the Aviation and Space Journal. Ricardo de Oliveira is an associate at Clyde & Co in the Speciality International Risk and Reinsurance Department and a member of its Aviation Global Practice Group. He has experience across all types of litigation and dispute resolution with particular focus on aviation, product liability, professional indemnity, financial lines and D&O and advises on liability and coverage disputes to both international and local insurers and reinsurers. Ricardo specializes in defence litigation and subrogated recoveries. His prior experience includes roles in Europe and the Middle East. Ricardo holds an Advanced LLM (master of laws) in Air and Space Law (cum laude) from Leiden University.

vii

Contributors Regula Dettling-Ott is an attorney and aviation policy advisor. Since June 2017, she is the Chair of the Performance Review Body of the Single European Sky, appointed by the European Commission. Previously, she was Vice President EU Affairs for the Lufthansa Group and managed International Relations and Government Affairs at Swiss International Air Lines. She also worked as an attorney, specializing in air law including traffic rights, airport regulation, liability matters and accident investigations. Regula Dettling-Ott is honorary Professor at the University of Bern (Switzerland). Nikolai Ehlers, LLM (McGill), the partner in charge of the aviation practice of Ehlers, Ehlers & Partner (Munich/Germany), is qualified as a lawyer both in Germany and in New York. Mr Ehlers regularly advises on aircraft finance matters. His practice also focuses on advising and representing airlines, manufacturers and their insurers in liability matters, regulatory issues, insolvency proceedings, etc. He is an officer of EALA, a member of the advisory boards of the legal journals ZLW (Germany) and JALC (SMU-Dallas) and a frequent organizer and speaker at international aviation law events. Catherine Erkelens founded the aviation law firm 'Erkelens Law' in 2017. Before that, Catherine was Co-head of the Aviation Group of an international firm. She developed a leading reputation working for the sector and was responsible for several landmark litigations: on airport charges, ground handling, air traffic control. She advises on airport economic regulation, slots, security, safety and technologies and represents airlines, airline associations and airport service providers. Her practice has been ranked in the legal directories for many years and she received multiple awards. Catherine is listed among the Global Elite Thought Leaders for Aviation Regulatory by Who's Who Legal Expert Guide in 2019. Fernando Fiallos is currently a PhD candidate at Leiden University where his work focuses on the operation of unmanned aerial systems (UAS) under aviation law. He also holds an LLM degree from McGill University and a law degree from the University of Guayaquil. In 2009, he was admitted at the Ecuadorian Foreign Service as a career diplomat. He works at the Ministry of Foreign of Ecuador. Previous posts include Consul in Ottawa (2014-2016), Vice-consul in Doha (2012-2014) and Permanent Representative to the Ecuadorian Civil Aviation Council (2011-2012). Prior to becoming a diplomat, he was an aviation practising lawyer. Jose Ignacio Garcia-Arboleda is Partner at Garcfarboleda Abogados in Bogota, Colombia. He is a lawyer graduated from Javeriana University (Bogota), with graduate studies in Administrative Law from that University and an Advanced LLM in Air and Space Law from Leiden University. His practice focuses on regulatory, litigation, contractual and aircraft financing matters. He is International Air Transport Association (IATA) Training instructor as well as a part-time lecturer in Law of Evidence at Javeriana University and in Air Law at Los Andes University. He is also a member of the Board of Editors of the Air and Space Law Journal and a guest lecturer at Leiden University.

viii

Contributors Peter Haanappel is Emeritus Professor in Leiden where he was Professor of Air and Space Law at the Faculty of Law of Leiden University from 1996 to 2009. Prior to his appointment in Leiden, Peter Haanappel held several positions within IATA and as Professor of Law at McGill University. Peter Haanappel has published extensively on air and space law, civil law, comparative law and juridical linguistics. He now operates his own consultancy firm and is a member of the Editorial Boards of the Annals of Air and Space Law and the Zeitschrifr fiir Lufr- und Weltraumrecht. Brian Havel is Professor of Law and Director of the Institute of Air and Space Law at McGill University in Montreal, Canada. He is also Emeritus Distinguished Research Professor of Law at DePaul University College of Law, Chicago, and Visiting Professor of Law at the University of Oxford, Leiden University, and University College Dublin. He was the Keeley Fellow at the University of Oxford, Wadham College, from 2011 to 2013 and previously served as the Fulbright Distinguished Chair in Comparative Law and Legal Pluralism at McGill. His most recent book is The Principles and Practice of International Aviation Law (Cambridge 2014, with G. Sanchez). Stephan Hobe is Director of the Institute of Air Law, Space Law and Cyber Law and Professor at the University of Cologne. He is author and editor of more than 300 books and articles including 'Introduction to Public International Law', lOth edition 2014, 'European Law', 9th edition 2018 and Space Law (2019). He is a member of the board of several scientific associations: International Institute of Space Law, European Centre for Space Law, membre titulaire of the Academie Franc;aise de l' Air et de l'Espace and of the International Academy of Astronautics and Vice President of the German Society of International Law. Jiefang Huang is Director of the Legal Affairs and External Relations Bureau of ICAO. He holds a PhD in Air Law from Leiden University as well as a master in Air & Space Law from McGill University. Morten Hans Jakobsen is Partner with Gorrissen Federspiel in Copenhagen, Denmark, and heads the firm's aviation department. Since 1997, Morten has specialized in aviation and aircraft finance and advises airlines, aircraft and engine lessors, banks and other players within the aviation sector in matters relating to inter alia, leasing, charters, purchase/sale, maintenance, incidents and accidents, regulatory matters, registration, arrest and repossession, insurance, code-sharing, airline start-ups, insolvencies and industry-related M&A, etc. Morten holds office as Secretary of EALA and is on the Aviation Working Group's legal advisory panel as Head of the Nordic contact group. Anna Konert is Attorney at Law and Air Law Professor, the Dean of the Faculty of Law and Administration and Director of the Institute of Air & Space Law at Lazarski University, Warsaw, Poland. She was Vice President of the Polish Aviation Club (2013-2016) and currently is Committee Member of EALA (since 2013), Director of

ix

Contributors LLM in Air Law (since 2012) and Director of MBA in Aviation (since 2017) at Lazarski University. Dejian Kong is Assistant Professor of law at the China University of Political Science and Law and a fellow of the Research Institute of Air and Space Law. Meanwhile, Dr Kong works as a part-time researcher at the National Research Center of Air Traffic Management Law and Standard of China, the Institute of Air Law and Standard of Beihang University (Beijing University of Aeronautics and Astronautics), China. He received his LLB, LLM and PhD in law from Shandong University (China), Beihang University and Leiden University (the Netherlands) respectively. He passed his bar examination in 2010. Robert Lawson QC is Partner of Clyde & Co LLP and Chair of its Aviation Global Practice Group. Rob joined Clyde in 2017 after spending twenty-six years at the independent Bar in London. He was appointed to the rank of Queen's Counsel (QC) in 2009. Throughout his legal career, Rob's practice has focused upon the world of, and law relating to, aviation. He is a fellow of the Royal Aeronautical Society. Brendan Lord obtained an Advanced LLM in Air and Space Law (summa cum laude) from Leiden University. He is currently undergoing training to be a solicitor at Norton White, Sydney. His field of interest is technology and the law and associated legal issues such as privacy and data protection and the area of space law. Anna Masutti is tenured Professor of Air Law and European Transport Law at the University of Bologna. She is Partner and Head of the aviation department of LS Lexjus Sinacta Law Firm, Italy. She frequently contributes to EU programmes including those related to Global Navigation Satellite Systems (GNSSs) and UASs. Anna is Editor of The Aviation and Space Journal of the University of Bologna. She is in the board of EALA, Legal Advisor in the IBAA's board (Italian Business Aviation Association) and member of the Aviation Committee of IBA (International Bar Association). Laura Pierallini is the founder of the Italian law firm Studio Pierallini and Professor of Commercial and Air Transport Law at the LUISS University in Rome. Laura has practised aviation law since 1988. She is an author of many international publications on air law. Laura is shortlisted as Best Aviation Lawyer for the Europe Women in Business Law Awards in 2017, 2018 and 2019 and recognized as Thought Leader of Aviation by Who's Who Legal Expert Guide in 2018 and 2019. Ms Pierallini is a Committee member of EALA, member of the International Aviation Women's Association and the European Aviation Club. Mikolaj Ratajczyk (PhD) graduated master of laws and administration from the Warsaw University in 2002 and subsequently completed postgraduate studies in civil aviation management at the Academy of National Defense in Warsaw. He subsequently obtained his Doctorate degree in Air Law in 2014 at Leiden University. He worked in the Polish Civil Aviation Authority, Air Transport Directorate of the European Commission and the Polish Presidency of the EU. In 2012 he joined the

x

Contributors European Aviation Safety Agency (EASA) and is currently working in its legal department. Peter Sand is Attorney-at-law with Gorrissen Federspiel's aviation department. Peter advises on all matters relating to the aviation industry, including financing and leasing, purchase and sale, regulatory matters, and dispute resolution. Francis Schubert is Chief Corporate Officer and Deputy CEO for Skyguide, Swiss Air Navigation Services Ltd., in Geneva, Switzerland. He is also Adjunct Professor at the Institute of Air & Space Law, McGill University, in Montreal, Canada, and lecturer at the Faculty of Law of the University of Lausanne, in Switzerland. Francis Schubert serves as ex officio Legal Counsel for CANSO (Civil Air Navigation Services Organisation) and President of EUROCAE (European Organisation for Civil Aviation Equipment). Rajesh Singh is the founder of RKS Associates, a consulting firm in the area of aviation regulation. Presently, he serves on the International Advisory Board of the International Institute of Air and Space Law (IIASL) of Leiden University and Aerohelp Institute of Aviation Law, Russia. He is also Advisor to Aero Club of India. He is an alumnus of Leiden University having done his Advanced LLM in Air and Space Law there. Prior to setting up RKS Associates, he served in various capacities in the Indian Government in Civil Aviation sector. Ida Bagus Rahmadi Supancana (Doddy) is Professor of Law at the Catholic University of Atma Jaya in Jakarta, Chairman/Founder of the Center for Regulatory Research and a guest lecturer at several universities, both in Indonesia and abroad. His main expertise's and experiences are in the field of aviation and space law; foreign direct investment law; settlement of disputes; cyber law; mining; international commercial contract; and regulatory reform. He is also Advisor and Consultant for some international organizations and Donor Countries as well as Indonesian Governmental Agencies and often represents the Government in Bilateral and Multilateral Negotiations (ASEAN Regional Forum; APEC, UNCOPOUS; APSCO). Alan Khee-Jin Tan is Professor of Aviation Law at the National University of Singapore Law School. Alan has been a law clerk at the Supreme Court of Singapore and Hauser Global Visiting Professor at the New York University School of Law where he taught Global Aviation Law & Policy. Alan is the leading aviation law academic in Asia with extensive publications on the liberalization of the aviation industry. He has been a consultant to the Association of Southeast Asian Nations (ASEAN), the governments of Sri Lanka, UAE and Indonesia and airlines including AirAsia, Cebu Pacific and Royal Brunei. Steven Truxal is Reader in Law at City, University of London, Fellow at HumboldtUniversitat zu Berlin and a guest lecturer at the International Institute of Air & Space Law at Universiteit Leiden. Steven's most recent book, Economic and Environmental Regulation of International Aviation: From Inter-National to Global Governance (Routledge 2017), observes that the nature of the airline business has become less xi

Contributors 'inter-national' and more global and identifies future routes to the global governance of civil aviation. Steven worked previously for Deutsche Lufthansa AG and the U.S. Department of Commerce. Mathieu Vaugeois works as Legal Assistant within the Legal Affairs and External Relations Bureau of ICAO. He is a member of the Quebec Bar and holds a master in Air & Space Law, LLM, from McGill University. Michael Whitaker has spent his career in aviation, first as a lawyer in private practice representing general aviation manufacturers, then as a litigator for TWA in New York, and at United Airlines, where he worked for fifteen years and rose to Senior Vice President of Alliances, International and Regulatory Affairs in Chicago. In 2013, he was appointed by President Obama to serve as Deputy Administrator of the Federal Aviation Administration, which he did through 2016. Whitaker, a private pilot, earned his JD cum laude from Georgetown University in Washington, DC. Pai Zheng is Assistant Professor of International Law at East China University of Political Science and Law (ECUPL), Shanghai, China. He is also an editorial member of the journal Air & Space Law (Kluwer Law International), an editor of the Chinese journal China Aviation Law Review (Law Press China) and a visiting fellow at the Asian Law Institute (ASLI) of the National University of Singapore (NUS). He obtained an Advanced LLM in Air and Space Law from Leiden University, the Netherlands, and a PhD in Law (cum laude) from ECUPL.

xii

Summary of Contents

Editors

v

vii

Contributors Forewords

xxxv

Preface

xlv

List of Abbreviations

xlix

PART

I

Sovereignty as a Basic Concept of International Law, Including International Air Law CHAPTER

1

1

The Legacy of the 1919 Paris Convention Relating to the Regulation of Aerial Navigation Vincent Correia CHAPTER

3

2

Aerial Sovereignty: From Paris 1919, Through Chicago 1944, to Today Peter Haanappel CHAPTER

25

3

Sovereignty as a Basic Concept of International Law and a Core Principle of Air Law Stephan Hobe

35

xiii

Summary of Contents CHAPTER

4

The Development of Civil Aviation and Its Impact on Sovereignty 45

AnnaKonert PART

II

The Impact of Sovereignty on the Administration of International Civil Aviation Through International and Regional Organizations

53

CHAPTER 5 The Impact of Sovereignty on the Administration of International Civil Aviation Through International and Regional Organizations: The Role of ICAO

55

Jiefang Huang & Mathieu Vaugeois CHAPTER

6

The Impact of Sovereignty on Regional Cooperation in Civil Aviation: The Russian Perspective Alexander A. Batalov CHAPTER

67

7

LACAC and Current Challenges of Civil Aviation in Latin America 83

Fernando Fiallos CHAPTER

8

The Impact of Sovereignty on the Administration of International Civil Aviation Through International and Regional Organisations: Regulating Civil Aviation Safety at Regional Level - A European Perspective Mikolaj Ratajczyk PART

97

III

Sovereignty Pertaining to Air Traffic Management CHAPTER

109

9

Sovereignty Pertaining to Air Traffic Management Anna Masutti CHAPTER

111

10

Unmanned Aircraft Systems (UAS) Engaged in International Air Transport 125

Fernando Fiallos CHAPTER

11

Limits in the Sky: Sovereignty and Air Navigation Services Francis Schubert

147

xiv

Summary of Contents CHAPTER

12

The Speeding-up Process on the Realignment of Flight Information Region (FIR) in Areas A, B, C from Singapore to Indonesia: Issues of Sovereignty, or Safety, or Both? Ida Bagus Rahmadi Supancana CHAPTER

163

13

Sovereignty and GNSS: Connecting the Traditional Legal Concept with High Technology 175

Dejian Kong CHAPTER

14

Sovereignty in Relation to Air Traffic Management Catherine Erkelens

18 7

CHAPTER 15 The Delineation Between Civil Aircraft and State Aircraft: A Move into the Aviation World of Tomorrow after 75 Years of Uncertainty

197

Ricardo de Oliveira CHAPTER

16

Does an Immovable Object Meet an Irresistible Force? An EU Perspective on the Apparent Tension Between the Protection of Airspace Sovereignty and the Notion of Private Sector Transnational Air Carriers Robert Lawson QC

209

IV Sovereignty in the Context of European Law and Policy

221

PART

CHAPTER 17 Sovereignty in the Context of European Law and Policy

Regula Dettling-Ott CHAPTER

223

18

Sovereignty: The Implications of the EU Internal Air Transport Market for Air Services Agreements with Third Countries 233

Laura Pierallini CHAPTER 19 The International Uniformity of the Liability Regime of the IATA Standard Ground Handling Agreement under Attack: Can the Chicago Convention Be a Remedy?

Nikolai Ehlers

249

xv

Summary of Contents CHAPTER 20 Bilateralism and Equality of Opportunity under Scheduled Services: Are Air Services Agreements the Sole and Absolute Source for Traffic Rights?

259

Jose Ignacio Carda-Arboleda CHAPTER 21 Sovereignty and Air Services Agreements in Asia: The Long Flight from Bilateralism to Multilateralism

273

Alan Khee-Jin Tan CHAPTER

22

Airspace Sovereignty in the Chicago Regime: A Reality Check

291

Steven Tmxal PART

V

Sovereignty in Relation to Air Services Agreements

305

CHAPTER 23 Sovereignty and Air Services Agreements: The Case of China

307

Pai Zheng CHAPTER 24 A US Perspective on the Utility of the Chicago Convention

325

Michael Whitaker CHAPTER 25 Multilateral Approach to Market Access Expansion: What the Future Holds

333

Rajesh Singh CHAPTER

26

The Chicago Convention Article 83bis: Legal Considerations When Entering into and Benefitting from Article 83bis Arrangements Morten Hans Jakobsen & Peter Sand

345

PART VI The Future of Sovereignty in International Civil Aviation

353

CHAPTER 27 Reflections on the "New Sovereignty" and the Future of International Civil Aviation

Brian F. Havel

355

xvi

Summary of Contents CHAPTER

28

The Future of Sovereignty in International Civil Aviation: The Resurgence of Sovereignty Versus the Freedom of Flight Roberto Cassar

367

CHAPTER 29 The Future of Sovereignty in International Civil Aviation Brendan Lord

3 79

1: Convention portant reglementation de la Navigation Aerienne, signee a Paris le 13octobre1919, avec Protocole additionnel signe a Paris le ler mai 1920

399

2: Convention on international civil aviation, signed at Chicago, on 7 December 1944, also referred to as the Chicago Convention

411

Index

437

ANNEX

ANNEX

xvii

Table of Contents

v

Editors

vii

Contributors

xxxv

Forewords Preface

xlv

List of Abbreviations

xlix

PART I Sovereignty as a Basic Concept of International Law, Including International Air Law CHAPTER

1

1

The Legacy of the 1919 Paris Convention Relating to the Regulation of Aerial Navigation Vincent Correia §1.01 Introduction §1.02 The Sovereignty Debate in the Genesis of the 1919 Paris Convention [AJ Pre-existing Legal and Academic Debates on Air Sovereignty [lJ The 'Second Battle of the Books' [2J The Diverging Approaches Adopted by Learned Societies [BJ The 1910 Paris International Conference [CJ The Aeronautical Commission of the 1919 Paris Peace Conference §1.03 Air Sovereignty in the 1919 Paris Convention [AJ The First Steps Towards the Establishment of Air Sovereignty [BJ The Consecration of the 'Air Sovereignty' Theory

xix

3

3 5 6 7

9 10

13

14 14 15

Table of Contents [CJ

§1.04

The Right of Innocent Passage [lJ A Concession Reserved to Contracting Parties [2J The Limited Reach of the Right of Innocent Passage [3J Equal Treatment of National and Foreign Aircraft [DJ The Creation of the !CAN Conclusions

16 16 17 19 20 22

CHAPTER 2 Aerial Sovereignty: From Paris 1919, Through Chicago 1944, to Today

Peter Haanappel

§2.01 §2.02 §2.03

§2.04 §2.05

§2.06

A Workable Definition of National Aerial Sovereignty Aerial Sovereignty in the Paris and Chicago Conventions Horizontal Sovereignty [AJ Land and Territorial Waters [BJ Antarctica [CJ Aerial Sovereignty Resulting from the UNCLOS Vertical Sovereignty: The Upper Limits of National Aerial Sovereignty in View of Emerging Outer Space Activities Current Issues [AJ New Islands [BJ Claims to Sovereignty in Polar Regions [CJ Relationships Between Oceanic FIRs and National Aerial Sovereignty Concluding Remarks

25 25 26 27 27 28 29 30 31 31 32 33 34

CHAPTER 3 Sovereignty as a Basic Concept of International Law and a Core Principle of Air Law

Stephan Hobe

§3.01 §3.02 §3.03 §3.04 §3.05

The Development of the Principle of Sovereignty Sovereignty in Relation to Commercial Aviation Sovereignty in Relation to the Control of National Airspace Conflict Zones: The Instance of MH17 Concluding Perspectives

35 35 37 40 41 43

CHAPTER 4 The Development of Civil Aviation and Its Impact on Sovereignty

Anna Konert

§4.01 §4.02 §4.03 §4.04

Introduction Limitations on the Principle of Air Sovereignty Imposed by the Original Chicago Convention The Evolution of the Concept of Sovereignty Limitation on the Enforcement of Sovereign Authority under New Treaty Obligations

xx

45 45 46 47 48

Table of Contents §4.05 §4.06

The Impact of Globalization and General World Trends on the Development of the Principle of Sovereignty Conclusion

49 51

PART II The Impact of Sovereignty on the Administration of International Civil Aviation Through International and Regional Organizations

53

CHAPTER 5 The Impact of Sovereignty on the Administration of International Civil Avia,t:ion Through International and Regional Organizations: The Role of ICAO Jiefang Huang & Mathieu Vaugeois Introduction §5.01 §5.02 State Sovereignty and the Need for International Cooperation ICAO Promoting Aviation Safety §5.03 §5.04 ICAO's Audit Function [AJ Universal Safety Oversight Audit Programme [BJ Universal Security Audit Programme [CJ Significant Implications from the Success of ICAO's Audits Implementation of SARPs Through Regional Mechanisms §5.05 [AJ The Need for RSOOs [BJ The Purpose of an RSOO [CJ State Sovereignty in Relation to RSOOs §5.06 Conclusion

55 55 56 57 60 60 62 63 64 64 64 65 66

CHAPTER 6 The Impact of Sovereignty on Regional Cooperation in Civil Aviation: The Russian Perspective Alexander A. Batalov §6.01 Introduction §6.02 Russia's Regional Cooperation in Civil Aviation Starting from the Early 1990s and until 2015 [AJ Regional Cooperation in the Area of Aviation Safety and Aircraft Accident Investigation until 2015 [BJ Problems of Regional Cooperation in the Area of Economic Regulation of Air Transport §6.03 Russia's Regional Cooperation in Civil Aviation Starting from 2015 [AJ Regional Cooperation in the Area of Aviation Safety and Aircraft Accident Investigation Starting from 2015 [lJ Limitation of the IAC's Role in the Area of Aviation Safety Certification [2J Establishment of New Aviation Accident Investigation ~~

67 68 70 70 74 75 75 75 ~

xxi

Table of Contents [BJ

§6.04

Perspectives of Regional Cooperation in the Area of Economic Regulation of Air Transport Within the Framework of EAEU Conclusion

CHAPTER

7

78 81

LACAC and Current Challenges of Civil Aviation in Latin America Fernando Fiallos

§7.01 §7.02

§7.03

§7.04

§7.05

Introduction History and Functions of LACAC [AJ Brief History and Roles of LACAC [BJ Functions of LACAC [CJ Structure of LACAC Challenges and Opportunities of the Latin American Aviation Industry in the Twenty-First Century [AJ Latin American Civil Aviation Performance [BJ Rethinking Aviation Regulations for Latin America [l] Proposed Policy Objectives [2J The Need for Regulatory Changes [3J Economic Factors, Including Taxation [4J Open Skies Initiatives [CJ The Need to Secure Adequate Aviation Infrastructure in Latin America Reorienting LACAC's Work [AJ Current LACAC's Strategic Plan [BJ Areas of Work in Which LACAC May Coordinate Additional Actions Concluding Remarks

83 83 84 84 85 86 88 88 89 89 90 90 92 92 94 94 94 95

CHAPTER 8 The Impact of Sovereignty on the Administration of International Civil Aviation Through International and Regional Organisations: Regulating Civil Aviation Safety at Regional Level - A European Perspective

97

Mikolaj Ratajczyk

§8.01 §8.02 §8.03 §8.04 §8.05 §8.06

The Principle of State Sovereignty under the Chicago Convention on International Civil Aviation (1944) The Emergence of RASOs The EASA: A Success Story of a Regional Aviation Safety Organisation EASA from the Perspective of ICAO and the Chicago Convention The Interaction Between the ICAO USOAP and EASA Activities Conclusions

xxii

98 99 101 104 106 107

Table of Contents PART III sovereignty Pertaining to Air Traffic Management CHAPTER

109

9

sovereignty Pertaining to Air Traffic Management Anna Masutti

§9.01

§9.02

§9.03 §9.04

§9.05

Introductory Remarks: The Fragmentation of European Skies [AJ International State Responsibility for Air Traffic Management [BJ Community Action Regarding the Management of European Skies [CJ The Adoption of the Single European Sky Regulations [DJ The Involvement of SESAR Joint Undertaking The SES as an Answer to Inefficiency of the Air Transport System [AJ The SES as an Essential Part of the EU Actions in the Air Transport Sector [BJ The SES II Package for a Safer and Sustainable Growth [CJ The Inability to Cope with the Air Traffic Growth SESAR: The Way to ATM's Modernization The Main Obstacles for a More Efficient European ATM [AJ The Protection of the Sovereignty Principle by the Member States [BJ The Inaccuracy of the Cost-Benefit Analysis [CJ The Unclear Allocation of Responsibilities Conclusions

111 111 111 112 113 114 115 115 117 117 118 120 120 121 122 123

CHAPTER 10 Unmanned Aircraft Systems (UAS) Engaged in International Air Transport

Fernando Fiallos

§10.01 §10.02

Introduction What Is International Air Transport and How Realistic Is the Operation of Unmanned Aircraft in Such Activity? [AJ Defining International Air Transport [BJ The Potential Use of Unmanned Aircraft in International Air Transport [CJ How Common Are Unmanned Aircraft International Flight Operations? §10.03 The Governing Regime for the International Air Transport of Unmanned Aircraft under the Convention on International Civil Aviation of 1944 [AJ Purpose of This Section [BJ Principles Governing Air Transport in the Convention on International Civil Aviation of 1944 [CJ The Principle of Lex Specialis Derogat Generalis as Applied to the Operation of Unmanned Aircraft [lJ Principles of Interpretation

xxiii

125 126 126 126 12 7 129

130 130 130 131 131

Table of Contents [2J

Lex Specialis as Applied to Article 8 of the Chicago Convention 1944 [3J Differences in the 'Prior Authorisation' Term Present in Articles 5, 6, 7 and 8 §10.04 The Regime Governing International Air Transport of Unmanned Aircraft under ASAs [AJ Are the Freedoms of the Air Applicable to Unmanned Aircraft? [BJ Are Bilateral/Multilateral ASAs Applicable to the International Air Transport of Unmanned Aircraft? §10.05 Concluding Remarks

132 135 136 136 138 144

CHAPTER 11 Limits in the Sky: Sovereignty and Air Navigation Services

Francis Schubert

§11.01 § 11.02 §11.03

§11.04

Introduction The Case for Cross-Border Service Provision Reconciling Sovereignty with Cross-Border Service Provision [AJ Airspace Sovereignty [BJ Regulation and Oversight [CJ Civil-Military Cooperation [DJ Formal Arrangements Conclusion

147 147 148 151 151 152 156 159 160

CHAPTER 12 The Speeding-up Process on the Realignment of Flight Information Region (FIR) in Areas A, B, C from Singapore to Indonesia: Issues of Sovereignty, or Safety, or Both?

Ida Bagus Rahmadi Supancana

§12.01 §12.02

§12.03

§12.04

Background Conceptions and Legal Basis [AJ Air Traffic Management (ATM) [lJ Definitions [2J Elements [3J Legal Basis of Delegating the FIR [BJ Flight Information Region (FIR) [lJ Definition [2J Legal Basis for Controlling the FIR and ATS [3J The Legal Basis for Controlling ATS above Open Seas or above Undetermined Sovereignty The Singapore FIR and Its Implications [AJ Military [BJ Security [CJ Safety [DJ Economic Impact Lessons Learned from the Past Failures

xxiv

163 163 164 164 164 164 164 165 165 165 166 166 166 167 167 167 167

l

i Table of Contents [AJ Recent Improvements in Safety Standards [BJ The Failure to Become a Member of the ICAO Council [CJ Different Perception on the Urgency for Realignment [DJ Lack of Coordination Among Governmental Institutions [EJ Lack of Infrastructure Readiness Controversial Issues Whether the FIR Is an Issue of Sovereignty §12.05 Versus Safety, or Both? [AJ The FIR Is Only a Technical and Operational Issue for Aviation Safety [BJ The FIR Is Related to Sovereignty and Even Dignity [CJ A Combination? §12.06 Key Factors for Speeding up the Realignment Process [AJ Strengthening Political Will [BJ Uniform Perception [CJ The Establishment of a Comprehensive and Integrated Approach [DJ Strengthening the Legal and Regulatory Basis [EJ Improving Coordination Mechanisms [FJ Strengthening Diplomacy [GJ Infrastructure Readiness [HJ Certainty on the Roadmap and Time Line §12.07 The Way Forward

167 168 168 168 169 169 169 170 171 171 171 171 171 172 172 172 173 173 173

CHAPTER 13 Sovereignty and GNSS: Connecting the Traditional Legal Concept with High Technology

Dejian Kong

§13.01 §13.02 §13.03

Introduction to GNSS under CNS/ATM Systems The Concept of Sovereignty in the Context of GNSS Sovereignty of GNSS User States: The Introduction of GNSS under Article 28 of the Chicago Convention [AJ Sovereignty in the Provision of Air Navigation Service [BJ The Role of GNSS in the System of Air Navigation Facilities [CJ The Introduction of GNSS: User States' Sovereign Discretion or Obligation? §13.04 Sovereignty of GNSS Provider States: The Doctrine of Sovereignty Immunity and Proposal for a Legal Solution [AJ The Issue of GNSS Civil Liability [BJ The Doctrine of Sovereignty Immunity in the Context of GNSS [CJ Proposal for a Waiver of Sovereign Immunity in a GNSS Legal Instrument §13.05 The Future of Sovereignty in the Context of GNSS: Eliminating Sovereign Concerns Through the Commercialisation of GNSS §13.06 Conclusion

xxv

175 176 177 178 178 178 179 181 181 182 183 184 186

Table of Contents CHAPTER 14 Sovereignty in Relation to Air Traffic Management Catherine Erkelens §14.01 International State Responsibility for ATM §14.02 Implementation of Global Standards in Domestic Legislation §14.03 Standards Pertaining to ATS §14.04 The Establishment of Cross-Border Arrangements on the Provision of ATS §14.05 The Single European Sky Initiatives §14.06 Cross-Border Cooperation under the Single European Sky §14.07 Technical Cooperation under the Single European Sky §14.08 Concluding Remarks CHAPTER 15 The Delineation Between Civil Aircraft and State Aircraft: A Move into the Aviation World of Tomorrow after 75 Years of Uncertainty Ricardo de Oliveira §15.01 Introduction §15.02 Chicago Convention: Before and During [AJ Chronological Arrangement of the Subject [BJ Pre-Chicago Conference [CJ Discussions at the Chicago Conference (1944) [DJ The Distinction Laid Down in the Chicago Convention [EJ Categorization of Aircraft [FJ Implications for Procedures to Be Followed [GJ Concluding Remark §15.03 Overarching Issues with the Chicago Convention's Distinction Between Civil and State Aircraft §15.04 Conclusion CHAPTER 16 Does an Immovable Object Meet an Irresistible Force? An EU Perspective on the Apparent Tension Between the Protection of Airspace Sovereignty and the Notion of Private Sector Transnational Air Carriers Robert Lawson QC §16.01 Introduction §16.02 The Chicago Regime §16.03 Arrested Development §16.04 The EU Single Aviation Market Initiative §16.05 The Impact of the Third Package §16.06 The Rise of Trans-EU Low-Cost Carriers §16.07 The Rise of the Trans-EU Carrier Groups §16.08 Expansion of the EU Single Aviation Market and Transnationality §16.09 Conclusion

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187 187 189 190 190 191 192 193 194

197 197 199 199 199 201 202 203 203 204 204 206

209 209 210 212 213 215 216 218 218 219

Table of Contents IV sovereignty in the Context of European Law and Policy

PART

CHAPTER 17 sovereignty in the Context of European Law and Policy Regula Dettling-Ott §17.01 Introduction §17.02 Sovereignty as the Competence to Prescribe, Apply and Enforce the Law in Aviation [AJ The Competence of EU Member States [BJ The Competence of Third Countries §17.03 Examples Illustrating the Notion of Sovereignty in European Aviation Policy [AJ National Carriers and the Community Air Carrier Concept [BJ The Introduction of EU ETS for International Aviation by the EU [CJ The Decision by the EU and the ECJ on Applying the EU Emission Trading Scheme on Aviation to Switzerland [DJ The Various Decisions by the ECJ on Passenger Rights §17.04 Conclusion CHAPTER 18 Sovereignty: The Implications of the EU Internal Air Transport Market for Air Services Agreements with Third Countries Laura Pierallini §18.01 Introduction §18.02 Air Services Agreements Within the Chicago Convention Framework §18.03 The EU Experience: Regionalisation of Aerial Sovereignty? [AJ The Emergence of Regionalism in International Civil Aviation [BJ ASAs Concluded by Member States Prior to the ECJ Rulings of 2002 [CJ The Open Skies Judgments of 5 November 2002 §18.04 The External Aviation Policy of the EU and Its Member States [AJ The First Steps Towards the Establishment of a Common External Aviation Policy [BJ ASAs Between EU and Third States [CJ ASAs Between Member States and Third Countries [DJ The Nationality Clause §18.05 Specific Cases [AJ The Notion of 'Shared Competencies' [BJ Russia [CJ China [D] Qatar §18.06 Conclusion

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221

223 223 224 224 225 227 227 228 230 231 232

233 233 234 237 237 238 239 240 240 241 242 243 244 244 244 245 246 247

Table of Contents CHAPTER 19 The International Uniformity of the Liability Regime of the IATA Standard Ground Handling Agreement under Attack: Can the Chicago Convention Be a Remedy?

Nikolai Ehlers

§19.01 §19.02 §19.03 §19.04

§19.05

Aircraft Ground Handling The Chicago Convention as Applied to Aircraft Ground Handling The IATA SGHA and Its Liability Regime The SGHA Liability Regime Held Unenforceable by German Court [AJ Liability Disputes Arising out of Ground Handling Activities [BJ The Facts of the Case [CJ The Position of the Plaintiff [DJ The Position of the Defendant [E] The Court's Decision [F] Current Status of the Litigation Can the Chicago Convention Be a Remedy in This Situation?

249 250 250 251 253 253 254 254 256 256 257 257

CHAPTER 20 Bilateralism and Equality of Opportunity under Scheduled Services: Are Air Services Agreements the Sole and Absolute Source for Traffic Rights?

Jose Ignacio Garcia-Arboleda

§20.01 §20.02 §20.03

Introduction Market Access under the Chicago Convention The Reality of Having Different Treatment Between States as an Exercise of Sovereignty under Bilateral ASAs §20.04 Situations Where Sovereignty Threatens Equality §20.05 The Relevance of the Equality of Opportunity Principle Set Forth in the Preamble to the Chicago Convention §20.06 The Balance Between Sovereignty and Equality of Opportunity and Its Relationship with Bilateral ASAs §20.07 Additional Examples Where the Balanced Rule Between Sovereignty and Equality of Opportunity May Be Useful §20.08 Conclusions

259 259 261 263 263 265 267 269 271

CHAPTER 21 Sovereignty and Air Services Agreements in Asia: The Long Flight from Bilateralism to Multilateralism

Alan Khee-Jin Tan

§21.01 §21.02

Overview Multilateral Efforts at Liberalization in Asia [A] Asia's Emerging Markets [B] Third, Fourth, Fifth Freedom Rights and Beyond in Plurilateral Air Services Agreements [CJ Remaining Restrictions in North East Asia, with Particular Reference to China's Position

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273 273 275 275 276 280

Table of Contents [DJ

Maintaining the 'Bilateral Model' in South Asia, with Particular Reference to India [EJ The European Model for the Liberalization of Air Services [FJ Concluding Remark §21.03 The Airline's Link with Nationality: Ownership and Control Restrictions [AJ The Traditional Approach [BJ The 'Principal Place of Business' Formula [CJ Regional Solutions and ASEAN's Efforts to Liberalize Nationality Requirements §21.04 A Common External Aviation Policy? [AJ Internal and External Limitations of the ASEAN 'Market' [BJ ASEAN's Prospects for International Air Services Agreements [CJ Concluding Remarks §21.05 Conclusion

281 282 283 283 283 284 284 287 287 288 289 289

CHAPTER 22 Airspace Sovereignty in the Chicago Regime: A Reality Check

Steven Troxal §22.01 Introduction §22.02 Airspace Sovereignty §22.03 Realities [AJ The Dynamic Development of Airspace Sovereignty [BJ Economic Reality [CJ Liberalisation of ASAs §22.04 Conclusions PART

291 291 292 296 296 296

299 302

v

Sovereignty in Relation to Air Services Agreements

305

CHAPTER 23 Sovereignty and Air Services Agreements: The Case of China

Pai Zheng

§23.01 §23.02

§23.03

Introduction Economic Regulatory Framework for the Operation of International Air Services [AJ Chicago Convention [lJ Airspace Sovereignty [2J Operation of Non-scheduled International Flights [3J Operation of Scheduled International Air Services [4J Cabotage [BJ Transit Agreement and Transport Agreement [CJ Bilateral Regulation of International Air Services [D] Regional and Plurilateral Developments Bilateral ASAs of China in a Nutshell

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307 307 308 308 308 309 310 311 313

315 315 315

Table of Contents [AJ [BJ [CJ

§23.04

§23.05

General Observations The Belt and Road Initiative and Bilateral ASAs of China The EU Horizontal Aviation Agreement with China Signed in 2019 China's Gradual and Progressive Approach Towards Air Services Liberalisation [AJ General Observations [BJ Recent Liberalisation Pertaining to Bilateral ASAs of China [CJ The China-ASEAN ASA (2010) and Protocol 2 on Fifth Freedom (2014) [DJ Opening-Up of Traffic Rights on a Unilateral Basis in Hainan: Fifteen Years On Conclusion

CHAPTER 24 A US Perspective on the Utility of the Chicago Convention Michael Whitaker §24.01 Changing Patterns in Air Travel §24.02 With Technologies Lagging Behind §24.03 The Evolutionary Process of the International Regulatory Regime [AJ The Role of the Chicago Convention [BJ The Post-War Years [CJ The US Position in the Post-War Era [DJ Deregulation in the US [EJ International Deregulation §24.04 Strains on the International Bilateral Model [AJ Tensions Between the Bilateral Model and Aspirations of the Airline Industry [BJ Steps for Maturing the Airline Industry §24.05 The Future of the Airline Industry under the Chicago Convention [AJ The Flexibility of the Chicago Regime [BJ Towards a Multilateral Regime [CJ Enforcement of Rules on Competition and Subsidies CHAPTER 25 Multilateral Approach to Market Access Expansion: What the Future Holds Rajesh Singh §25.01 Introduction §25.02 Two Freedoms Versus Five Freedoms §25.03 Protecting the Turf: Sovereignty as a Guarantee for Equal Opportunity §25.04 Resistance to the International Air Transport Agreement §25.05 The Complex World of Bilateralism §25.06 Was the Transport Agreement Ahead of Its Time because of the Fifth Freedom Rights?

xxx

315 318 319 320 320 321 321 322 323

325 325 326 326 326 326 327 328 329 330 330 331 331 331 331 332

333 333 334 335 336 338 339

Table of Contents §25.07 §25.08 §25.09 §25.10 §25.11

Other Factors Affecting the Viability of the Transport Agreement Multilateral Liberalization Efforts Recent ICAO Efforts Towards Formulating Multilateral Agreement The Future of Multilateralism Conclusion

CHAPTER 26 The Chicago Convention Article 83bis: Legal Considerations When Entering into and Benefitting from Article 83bis Arrangements Morten Hans Jakobsen & Peter Sand §26.01 The Chicago Convention and Practical Complications with Proper Fulfilment of the Obligations Thereunder §26.02 Analysis of Article 83bis of the Chicago Convention [A) Legal Effect and Basic Principles [BJ Scope of Applicability in General §26.03 Considerations When Entering into and Using Article 83bis Agreements [AJ General Conditions for Entering into Article 83bis Agreements [BJ Consideration When Preparing the Agreement [CJ Drafting the Agreement al)d Typical Pit-Falls [DJ During the Term of the Agreement §26.04 Concluding Remarks

PART

340 340 342 342 343

345 346 347 347 348 349 349 349 350 351 352

VI

The Future of Sovereignty in International Civil Aviation

353

CHAPTER 27 Reflections on the "New Sovereignty" and the Future of International Civil Aviation Brian F. Havel §27.01 Introduction: Beyond Westphalia §27.02 Airspace Sovereignty in the Chicago Convention §27.03 Functionalism: The "New Sovereignty" §27.04 ICAO and the New Sovereignty under the Chicago Convention §27.05 Traditional Sovereignty in the Economic Regulation of Global Aviation §27.06 The Future of a "New" Airspace Sovereignty §27.07 Conclusion

363 364 366

28 The Future of Sovereignty in International Civil Aviation: The Resurgence of Sovereignty Versus the Freedom of Flight Roberto Cassar §28.01 Introduction §28.02 The Concept of Sovereignty

367 368 369

355 355 357 359 360

CHAPTER

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Table of Contents §28.03 §28.04

§28.05

The The [AJ [BJ

Rise of Nationalism Resurgence of Sovereignty in the Realm of Aviation The Cardinal Role of Sovereignty in Aviation The Evolution of Bilateral ASAs in Relation to the Principle of Sovereignty [CJ The Future of Bilateral ASAs in Relation to the Principle of Sovereignty Conclusion

370 372 372 3 73 3 75 377

CHAPTER 29 The Future of Sovereignty in International Civil Aviation

Brendan Lord

§29.01 §29.02

§29.03

§29.04

Technology and the Law Political Considerations of Sovereignty [AJ Factors Affecting the Concept of Sovereignty [BJ Sovereignty Circa 1944 [CJ The Developmental Forces of Sovereignty [lJ From Protectionism to Open Markets under State Sovereignty [2J Regional Engagements and Agencies [3J Responsibility for Safety under State Responsibility [4J The Provision of Air Navigation Services [5J The Establishment of Uniform Rules and Procedures [6J Balancing Uniform Rulemaking with National Competencies for Their Implementation [7J Concluding Remark The Relationship Between Sovereignty and Technology [AJ Basic Elements of Sovereignty [BJ Defining Sovereignty in a Territorial Sense [lJ In Relation to the Law of the Sea [2J The Vertical Limit: The Boundaries with Outer Space [CJ Sovereignty under Future Air and Space Law [l] Future Interactions Between Aviation and Outer Space Related Activities [2] Conceptual Differences Between Air and Space Law [3] Interpretation of Terms Laid Down in Air and Space Law [4] Application of Treaty Rules Conclusion

1: Convention portant reglementation de la Navigation Aerienne, signee a Paris le 13 octobre 1919, avec Protocole additionnel signe a Paris le l" mai 1920

3 79 379 380 380 381 382 382 384 385 385 387 387 389 389 389 390 390 391 393 393 393 394 396 397

ANNEX

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399

Table of Contents ANNEX 2:

Convention on international civil aviation, signed at Chicago, on 7 December 1944, also referred to as the Chicago Convention

411

Index

437

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Forewords

For the past seventy-five years, ICAO has served as the primary global platform where our Member States and industry have come together to identify their global priorities and resolve emerging challenges. This level of global participation through our Organization testifies to how the Standards and Recommended Practices (SARPs) adopted through ICAO, in addition to the Global Plans and guidance materials we develop, are so critical to the harmonization, interoperability and sustainability of global aviation, and ultimately to optimize aviation's socio-economic benefits for States as they work to achieve the seventeen Sustainable Development Goals adopted under the United Nations' Agenda 2030. In recent years, we have focused the attention of world governments more acutely upon the effective implementation of ICAO SARPs and Global Plan targets, in realization of a number of key factors. These importantly included the fact that there is a growing implementation disparity among States due to shortfalls in local technical capacities and expertise. We responded to this challenge with the ICAO No Country Left Behind global capacity-building initiative, but our efforts have also been greatly aided through the complementary commitments of governments and industry in all ICAO Regions. By working together in this manner, we have accomplished a great deal to sustain and improve the safety, security and efficiency of air transport. We have recorded significantly improved SARP implementation worldwide, with many States augmenting not only their regulatory oversight systems but also their predictive analysis and risk management capabilities. Worldwide flights for passengers and cargo tend to double in coming fifteen years. Meanwhile, there are entirely new types of aircraft and operations being innovated. These developments require a fundamental re-evaluation today of how aviation will continue to serve travellers, societies and economies in the exciting years ahead.

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Forewords This stocktaking is urgently needed in order to accommodate some of the incredible air service capabilities now coming to light, whether related to drones, urban air mobility, autonomous flight, new-model supersonic and hypersonic transport or the burgeoning field of outer space transport and tourism. Additional and related considerations for air transport Artificial Intelligence and Blockchain applications only extend the boundaries of these twenty-first century aviation challenges and touch upon everything from how we reserve our seats to how air traffic will be managed at traditional and non-traditional flight levels. ICAO is assessing these innovations in the context of its established Strategic Objectives for Aviation Safety, Security, Capacity and Efficiency, Economic Development and Environmental Protection. By doing so, we help to ensure that they will be developed and implemented in a manner which fully supports the socio-economic development and broader connectivity needs which are such high priorities for many developing and even developed States. As we continue to help the governments of the world achieve consensus on the scope and substance of air transport innovation and progress, it is important to recall that all of these efforts undertaken by ICAO are founded upon the principles and Articles of the Convention on International Civil Aviation, signed at Chicago on 7 December 1944 and more commonly referred to as the Chicago Convention. As of 2019 and the 75th Anniversary of this visionary global agreement, 193 States have now ratified or adhered to this Convention. It, therefore, stands proudly within one of the oldest and most widely accepted category of multilateral treaties and continues to serve as the cornerstone of international civil aviation as it effectively governs the growth and development of the industry. In essence, the Chicago Convention has only been substantively amended twice, leading to the introduction of two new articles. These were Article 3 bis prohibiting the use of weapons against civil aircraft in flight, and Article 83 bis enabling the transfer of certain functions from the State of registry to the State of the operator of aircraft (in the context of leasing and interchange of aircraft between States). Both amendments have been widely ratified and remain important to ensuring the continued safety and security of international air services. It is therefore my great honour to be contributing to this new publication, one which commemorates not only the 75th anniversary of the Chicago Convention but also the lOOth anniversary of its predecessor, the 1919 Paris Convention on international aerial navigation. While both were founded on the basic premise of complete and exclusive State sovereignty over territorial airspace, reflecting the long-standing primordial concern of States to protect and preserve sovereignty over their national territories, the Chicago Convention together with ICAO have also highlighted the collective will by States to assess together and accommodate new and emerging issues. It is therefore by no accident that the authors have paid specific attention to such issues in their thoughtful and forward-looking contributions, ones in which the concept of sovereignty continues to be recognized as a fundamental legal principle.

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Forewords I wish to commend the International Institute of Air and Space Law of Leiden University for taking the initiative to prepare this volume in commemoration of the 75th Anniversary of the Chicago Convention, and I believe the readers will find it edifying and enlightening. Dr Fang Liu Secretary General of !CAO

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For me, it is beyond any doubt that the contribution of the Chicago Convention of 1944 to the management of international civil aviation cannot be underestimated. It has significantly contributed to the overall development of air transport, which continues to play a catalyst role in the national, regional and global economic systems. Understandably, safeguarding safety and security, among others by unambiguously confirming the sovereignty principle in national airspace, has been the primary concern of this convention, because it was signed at the end of the Second World War, that is, on 7 December 1944. Ever since, times have quite dramatically changed and its viability can clearly be underlined by its adaptability to all the challenges that have arisen after that date. I mention in particular the ever-increasing public attention for the protection of the environment, including requirements for reduction of noise levels through quieter aircraft engines, and, more recently, serious steps taken in reducing emissions corning from aircraft through the global approach of CORSIA under the auspices of the International Civil Aviation Organization. These challenges will remain, and a strong focus will be needed on developing sustainable aviation through innovation at all levels of the system. I wish to take the opportunity to congratulate ICAO for its continued and laudable efforts to keep the Chicago Convention as a lively instrument by drawing up standards and other acts which are designed to fulfil the objectives of this convention. Through the collaborative efforts undertaken by this organization, in close concert with its Member States, the mission of the Chicago Convention, as laid down in its Preamble, with particular reference to the objectives of avoiding friction and promoting cooperation between nations and peoples upon which the peace of the world depends, while international civil aviation ought to be developed in a safe and orderly manner, could be fulfilled during the seven and a half-decade since it was created. The Kingdom of the Netherlands has tried to be a loyal supporter of the implementation of the objectives of the Chicago Convention, and to provide assistance for these purposes. As early as 1910, Dutch academics such as Mrs J. F. Lyclarna a Nijeholt played an important role in formulating ideas on the sovereignty principle in international air law. During the Conference which led to the adoption of this convention, the very important Committee tasked with the establishment of safety standards and procedures was also chaired by a Dutchman, Mr M.L.P. Steenberghe. Moreover, the Netherlands was one of the very first States to ratify the Convention, and the very first State to ratify the International Air Services Transit Agreement of 1944, that is as early as 12 January 1945, after which no less than 132 other States followed suit, and equally the first State to ratify the International Air Transport Agreement both of which are linked to the Chicago Convention. In the following

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Forewords decades, the Netherlands has actively participated in the preparation of other instruments of international air law and is committed to consistently and continuously contribute to a safe, clean and economically healthy environment for the operation of air services through actively working with ICAO, other Member States and organizations sharing these views. I sincerely hope that this book will be considered as an illustration of the Dutch willingness to energetically support ICAO's work and to implement the goals of the Chicago Convention, through international cooperation. From that perspective, I am very pleased to see that authors coming from all parts of the world express their views on how to achieve those goals.

Cora van Nieuwenhuizen Minister of Infrastmcture and Water Management of the Netherlands

xl

International civil aviation is a remarkable achievement, but this truth is easily forgotten. Not only its success is technical - making tonnes of metal soar through the skies and halfway around the world - but also it has a legal dimension. International civil aviation requires a significant degree of cooperation and coordination between States, to which most of the passengers on board flights are blissfully oblivious. Take for example the annual journey of the President of the International Court of Justice to New York to present the Court's Annual Report to the General Assembly. The President boards an aircraft in the Netherlands and disembarks in the United States, normally passing over at least three other States along the way. Each of these States has opened its airspace to the passing aircraft and has arranged for the provision of navigational services to it. This interstate coordination is so refined that it goes all but unnoticed to the passenger daydreaming above the clouds. , Despite the complexity of this coordination, international civil aviation becomes ever more commonplace. According to ICAO statistics, over the five-year period from 2012 to 2017, international revenue passenger numbers grew from 1.19 billion to 1.66 billion, nearly half a billion more. The trend for passengers is consistently positive, and even in 2008, in the face of a global financial crisis, international revenue passengers grew by 1.3 % . While more vulnerable to the cycles of the global economy, the story of air freight is much the same. International revenue freight traffic continues to grow annually by millions of tonnes. Now more than ever before, the airplanes going around the world are the necessary links that make the world go round. The aim of this volume is to bring our attention to the development of the legal framework that enables all these activities, and now is an appropriate time to do so. The year 2019 marks 100 years since the conclusion of the Convention Relating to the Regulation of Aerial Navigation - the Paris Convention - and 75 years since the conclusion of its successor, the Convention on International Civil Aviation - the Chicago Convention. The conclusion of the Paris Convention in 1919, still less than twenty years after the invention of the airplane, reflects foresight on the part of the members of the International Commission for Air Navigation. As the preamble to the Paris Convention recalls, States recognized 'the necessity of early agreement upon certain principles and rules calculated to prevent controversy'. These two conventions have provided, in turn, the core legal framework for international civil aviation. For example, while it is settled now that the State below a particular level has sovereignty over its skies, a century ago this remained controversial, leading to the failure of an attempt to conclude an international convention in 1910. Article 1 of the Paris Convention established a harmonized rule in this regard,

xli

Forewords providing a key norm for international aviation. On this foundation, the Paris Convention placed rules for harmonization and mutual recognition on questions of aircraft registration, licensing and other technical aspects of aviation. The Chicago Convention expanded these rules with a view towards enabling the regular, scheduled air services which have become so familiar today. The first convention established the International Commission for Air Navigation while the second one the International Civil Aviation Organization. These two institutions have proven to be central to coordination and development in civil aviation. However, cooperation in civil aviation does not always go smoothly. Disputes arise from time to time. Some of them have even reached the International Court of Justice (ICJ), the principal judicial organ of the United Nations. The Court's first case concerning civil aviation arose from the shooting down of El Al flight 402 over Bulgaria on 27 July 1955. Israel sought compensation from Bulgaria. The Court, however, found itself to be without jurisdiction as Bulgaria's declaration of 1921 accepting the compulsory jurisdiction of the Court was no longer in force when the application instituting the proceeding was filed in 1957. 1 The Court would see further cases arising under international aviation law. In 1989, Iran brought a case against the United States, raising claims under both the Chicago Convention and also the 1971 Montreal Convention concerning the shooting down of Iran Air flight 655 by an American warship the previous year. While written pleadings on preliminary objections were filed, the case was settled and discontinued before oral proceedings could begin. 2 Similarly, in 1992, Libya brought two cases under the Montreal Convention against the United Kingdom and the United States relating to the destruction of Pan Am flight 103 over Lockerbie, Scotland. After the Court in its judgments on preliminary objections rejected Respondent's objections to jurisdiction and admissibility of the Application, 3 both cases were settled. It may be said that the Court's decision to uphold its jurisdiction was perhaps conducive to an out-of-court settlement by the Parties in the above-mentioned cases. The Chicago Convention and the related International Air Services Transit Agreement of 1944 both provide for the jurisdiction of the ICAO Council over disputes between contracting States regarding their interpretation or application. They also allow the Council's decisions on such disputes to be appealed to the ICJ. The Court has been requested three times to review ICAO decisions. In 1972, India appealed a decision of the ICAO Council that it was competent to entertain an Application and

1. Aerial Incident of 27 July 1955 (Israel v. Bulgaria), Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 127. 2. Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Order of 22

February 1996, l.C.J. Reports 1996 (I), p. 9. 3. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I. C.J. Reports 1998, p. 9; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 115. One

objection raised by both the United Kingdom and the United States was declared by the Court not to have, in the circumstances of the case, an exclusively preliminary character.

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- Forewords Complaint of Pakistan. 4 The Court affirmed the Council's decision and consequently rejected the appeal of India. The Court now has two further appeals from jurisdictional decisions of the ICAO Council pending before it in cases opposing several States in the Middle East region and Qatar. 5 Judgments in this cases are likely to be delivered in 2020. This recurring presence of aviation issues in the Court's cases reflect the ever-increasing importance of international aviation law. With aviation, its law and its institutions so engrained in our experience, both at the Court and in everyday life, it is welcome that this volume should provide an opportunity for reflection on the contributions of the Paris Convention and the Chicago Convention and their roles in the history of international civil aviation.

Dr Peter Tomka Judge and former President of the International Court of Justice Chairman of the International Advisory Board of the International Institute of Air and Space Law Leiden University The Hague, 15 April 2019

4. Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.CJ. Reports 1972, p. 46. 5. Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar), I.CJ. Reports 2018, p. 498 and Appeal Relating to the Jurisdiction of the ICAO Council under Article II, Section 2, of the 1944 International Air Services Transit Agreement (Bahrain, Egypt and United Arab Emirates v. Qatar), I.CJ. Reports 2018, p. 501.

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Preface

This book is designed to celebrate the 75th birthday of the Convention on international civil aviation which was concluded in Chicago on 7 December 1944, henceforth, and commonly referred to as the Chicago Convention or the Convention. We felt that we ought to pay tribute to the anniversary because it is a living instrument of international law which has served the august objectives laid down in its Preamble, and continues to do so, as clearly explained by the authors who made valuable contributions to this publication. The Chicago Convention was drawn up on the foundations of the Paris Convention on International Aerial Navigation (1919) (Convention portant reglementation de la navigation aerienne). Built on the ashes of the major world wars in the twentieth century, these conventions were founded on a strict adherence to sovereignty in the air, raising fascinating questions on the limits of territorial jurisdiction which have been addressed critically and innovatively in various chapters. Absent physical boundaries in this continuous medium, legal boundaries had to be formed, and that is where the Chicago Convention comes in. As a corollary, airspace is closed unless it is opened up by international agreement between States. As some authors pointed out, a 'right of innocent passage' mitigated the absolute boundaries of aerial sovereignty which marked the Paris Convention (1919). At the same time, and as succinctly articulated by the Preamble of the Chicago Convention (1944), aviation can 'greatly help to create and preserve friendship and understanding among the nations and peoples of the world', which is why airspace is opened up, while 'its abuse can become a threat to the general security linking nations and their peoples' - leading to closure of airspace from time to time, including in present times. We ought to honour the Chicago Convention (1944) because of the quality of its achievements, which principally address the promotion of safety and security. Another prominent feature concerns the creation of the International Civil Aviation Organization. Our authors have emphasized ICAO's work for the benefit, in particular, of the protection of safety and security in which field it is the global regulator. In this role, ICAO enhances safety worldwide. At the same time, enforcement of such global safety

xlv

Preface norms is left to individual States, increasingly assisted by ICAO and regional organizations in various part of the world, while respecting the sovereignty mantra. As a consequence, States are ultimately responsible for safety and security, but they are allowed to engage in cross-border arrangements and cooperative ventures, including regional associations, in the field of Air Traffic Management (ATM), illustrating yet again the smooth operation of the Chicago Convention. . This Convention creates room for new methods of communication such as GNSS, presenting challenges to the Convention's flexibility. Regarding GNSS, this system, and new ventures in ATM, provoke yet again questions on how far State sovereignty can be stretched in the context of the Chicago Convention (1944), how it can be reconciled with the status of States as sovereign entities while at the same time being involved with operational tasks in ATM and how liability for the compensation of damages caused by the execution of such tasks has to be addressed. Despite all these paramount and far-reaching developments, the Chicago Convention (1944) has adapted over time to new challenges of international civil aviation. It seems to us that all of the authors believe that the Chicago Convention (1944) should be retained as is, subject to proposals to explain the concept of territorial jurisdiction in situations where rule-making with respect to areas lacking a universally accepted sovereign status is not as evident as one might wish, to articulate environmental protection and to fine-tune the distinction between civil and State aircraft. However, there is yet another reason why a light should be shone on this Convention. As also pointed out by the Secretary General of ICAO, Dr Fang Liu, with its 193 ratifications as per 1 May 2019, the Chicago Convention (1944) is one of the most ratified conventions worldwide. Hence, practically all of the States in the world want to be part of the 'club' of aviation States. They share their concern for the safety of aviation, but most States would like to reinforce the Chicago Convention by introducing into it tools for environmental protection. ICAO is working hard to combat the environmental consequences of air transport which are also appealed for in this book. Speaking of environmental treaties in relation to the resilience of the Chicago Convention, it is not surprising that the abatement of noise and reduction of the damaging effects of gaseous emissions from aircraft did not receive the attention in 1944 which it enjoys nowadays. Pursuant to the sovereignty principle of the Chicago Convention (1944), States can organize 'trade in air services' in a flexible way. This book encompasses interesting essays on that subject, with particular reference to the question of how sovereignty can be balanced with the topical adage of 'equality of opportunity' with respect to the operation of air services, which has been convincingly analysed below. Some authors have argued that more guidance from worldwide organizations such as ICAO and the World Trade Organization in this respect would be desirable whereas other authors appear to be happy with the status quo pursuant to which States can manage their air transport relations in accordance with their own policy objectives. In the context of the management of air services, and in other contexts, reference is made to the more prominent role of regional organizations, sharing tasks in a spirit of cooperation with, on the one side, ICAO and, on the other side, their Member States. The prime example of this tendency is formed by the EU, whose supranational mandate xlvi

Preface and functions distinguish it from other regional organizations which are discussed below, notably the Latin American Civil Aviation Commission and the Association of southeast Asian Nations, who possess a more intergovernmental status. Sharing and, in part, transferring national competencies to a regional organization with supranational features has also invited further exploration of the absolute character of sovereignty as a number of authors have done, taking us from the origins of this concept as rooted in the Westphalian traditions of the seventeenth century to present times and future scenarios. The meaning of sovereignty has been analysed philosophically and linked to current conceptions in an evolutionary process. These resulted in the main conclusion that while sovereignty has undergone changes in the past three and a half centuries, its essence is still written in stone, that is, in the Chicago Convention of 1944 as it is applied today. We sincerely hope that this book gives a flavour of the perceptions put forward by distinguished aviation lawyers coming from all parts of the world. We thank our friends, with special mention of Vincent Correia, and alumni who have worked with enthusiasm and dedication with us to achieve this impressive result. We are curious to see under which circumstances and opinions its lOOth birthday will be celebrated.

Leiden, 1 May 2019 Pablo Mendes de Leon and Niall Buissing International Institute of Air and Space Law, Leiden University.

xlvii

List of Abbreviations

A&SL

Air and Space Law Journal

ADIZ

Air Defence Identification Zone

AHM AJIL ALTA

Airport Handling Manual American Journal of International Law Latin American and Caribbean Air Transport Association

ANSP

Air Navigation Service Provider

ANSs

Air Navigation Services

AOC APP

Air Operator Certificate

ASA ASAP

Air Services Agreement Air Services Agreements Projector

ASEAN

Association of South East Asian Nations

Aviation Partnership Project

ASEAN

Association of Southeast Asian Nations

ATA

Air Transport Agreement

ATC

Air Traffic Control

ATConf ATM

Air Transport Conference (ICAO) Air Traffic Management

ATS BA

British Airways

BASA BRI

Belt and Road Initiative

Air Traffic Services Bilateral Aviation Safety Agreement (EASA)

CAA

Civil Aviation Authority

CAAC

Civil Aviation Authority of China

xlix

List of Abbreviations CAAC CAN SO CARI COM CINA CIS CJEU CNS/ATM CRS DGCA EAEU EALA EASA (E)EC EC ECAA ECAC ECHR ECJ Eds EEA

Civil Aviation Administration of China Civil Air Navigation Services Caribbean Community Comite international de la navigation aerienne (Paris, 1919) Commonwealth of Independent States Court of Justice of the European Union (formerly ECJ) Communication, Navigation and Surveillance/Air Traffic Management System Computerised Reservation System (see also GDS) Directors General of Civil Aviation Eurasian Economic Union European Air Law Association European Aviation Safety Agency European Economic Community European Commission European Common Aviation Area European Civil Aviation Conference European Court of Human Rights European Court of Justice Editors European Economic Area (EU plus Norway, Iceland and Liechtenstein)

ESSP SAS

Exclusive Economic Zone European Free Trade Association European Geostationary Navigation Overlay Service European Satellite Services Provider

EU EUETS

European Union EU Emission Trade Scheme/System

FAA

Federal Aviation Administration Functional Airspace Blocks (SES) Future Air Navigation System (ICAO)

EEZ EFTA EGNOS

FAB FANS FIR GAS OS GATS

Flight Information Region Global Aviation Safety Oversight System General Agreement on Trade in Services

List of Abbreviations GATT GDS GNSS

General Agreement on Tariffs and Trade Global Distribution Systems (formerly CRSs) Global Navigation Satellite System

GPS IAC IAG IASA IASTA

Global Positioning System Interstate Aviation Committee (Russia) International Airlines Group International Aviation Safety Assessment (FAA)

IATA ICAN

International Air Services Transit Agreement International Air Transport Association International Commission for Air Navigation (Paris, 1919)

ICAO

International Civil Aviation Organization

ICJ ILA JALC LACAC LNTS Lo A MALIAT

International Court of Justice International Law Association

MFN MoU OJ OSA PANs RAIO

RANS RASOs REIO REIO RPAS RSOO SAARC

Journal of Air Law and Commerce Latin American Civil Aviation Commission League of Nations Treaty Series Letter of Agreement Multilateral Agreement on the Liberalisation of International Air Transportation (Pacific region) Most Favoured Nation Memorandum of Understanding Official Journal of the EU Open Skies Agreement Procedures for Air Navigation Services Regional Accident and Incident Organization Route Air Navigation Services Regional Aviation Safety Organisations Regional Economic Integration Organisation Regional Economic Integration Organisations Remotely Piloted Aircraft Systems

SAR

Regional Safety Oversight Organizations South Asian Association for Regional Cooperation Special Administrative

SARPs SES

Standards and Recommended Practices (CAO) Single European Sky

SES AR

Single European Sky ATM Research

Ii

List of Abbreviations SESARJU SEZ SGHA

SESAR Joint Undertaking Special Economic Zone Standard Ground Handling Agreement (IATA)

SPR TA TASA

Service Provision Regulation Transit Agreement Template Air Services Agreements (ICAO) Treaty on European Union Treaty on the Functioning of the European Union Unmanned Aircraft (System) United Arab Emirates Unmanned Aircraft Systems

TEU

TFEU UA[S] UAE UAS

UK UN UN CLOS UNTS

us

United United United Sea United United

Kingdom Nations National Conference on the Law of the Nations Treaty Series States

USAP US OAP

Universal Security Audit Programme (ICAO) Universal Safety Oversight Audit Programme (ICAO)

WASA WGOG

World Air Services Agreements Working Group on Governance

WP WTO ZLW

Working Paper World Trade Organization Zeitschrift fur Luft-und Weltraumrecht

Iii

I Sovereignty as a Basic Concept of International Law, Including International Air Law

PART

CHAPTER 1

The Legacy of the 1919 Paris Convention Relating to the Regulation of Aerial Navigation Vincent Correia

Before being recognised for the first time in the 1919 Paris Convention, the principle of sovereignty over airspace - now firmly established by Article 1 of the 1944 Chicago Convention - was at the centre of academic debates at the beginning of the twentieth century. In spite of its inevitable deficiencies, the 1919 Paris Convention marked the beginning of international aviation law and adopted solutions that were, later on, reproduced and perfected by the venerable 1944 Chicago Convention. Accordingly, the examination of the 1919 Paris Convention can help gain a better understanding of some actual features of the international regime governing aviation. After almost two decades of academic discussions, the acceptance of the theory of air sovereignty, tempered by the right of innocent passage, as well as the establishment of the International Commission for Air Navigation (ICAN), marked a major milestone towards effective and reliable international co-operation in the field of air transport. Hence, the legacy of the 1919 Paris Convention is, in many respects, still important nowadays as it demonstrated that States are, at the same time, firmly attached to their sovereignty while accepting of facilitating the operation of international transport, through the right of overflight or through institutionalised cooperation.

§1.01

INTRODUCTION

The development of aerial navigation is intrinsically connected to the major technological innovations achieved throughout the twentieth century, most notably in times of war, and the resulting shifts in the balance of powers among Nations. Since 'of all

3

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Vincent Correia

forms of transport ( ... ) flying is the first to come under legal control so early in its infancy', 1 it is not surprising that both the 1919 Paris Convention2 and the 1944 Chicago Convention 3 were adopted after the First and Second World Wars respectively. Not only did the belligerents realise the strategic importance of aerial warfare but also the victorious Nations reached the end of these conflicts with aircraft and trained pilots that could effectively participate in the booming civil air transport industry. Furthermore, the drafters of these Conventions understood that aviation could contribute to securing long-term peace, by fostering exchanges of people and goods and, thus, overcoming the barriers between Nations. Hence, as the political, material and technical conditions for further development of air transport were fulfilled, it appeared necessary to agree on the legal principles which would govern this industry, as confirmed by the following words: It is possibly unfortunate that a new law was demanded which had to be shaped

before the passions of the war had subsided, and that the lead in shaping it had to be taken by States which were victors in the war determined to capitalize the very uncertain fruits of their victory. It is fortunate, however, that the Peace Conference of 1919 afforded opportunity for a common approach to aviation legislation, at a time when States found agreement easier to reach than in any normal period. 4 Against this historical backdrop, the early academic debates revolved around the crucial issue of sovereignty, 5 as it crystallised different views on the future legal regime governing aviation. At that time, it was understood that unification at the international level was of the utmost importance, and the lawyers 'ne se contentaient pas de suivre les progres de la technique aeronautique, mais en escomptaient le plus souvent les 1. Bin Cheng, The Right to Fly, 42 Transactions of the Grotius Society for the Year 1956, 99 (1958). 2. Convention Relating to the Regulation of Aerial Navigation signed at Paris, 13 October 1919, 58 League of Nations Treaty Series 346 [hereinafter '1919 Paris Convention']; Text reproduced in 1 Journal of Air Law and Commerce 94 (1930); See Albert Ropert, La convention internationale du

13 octobre 1919 portant reglementation de la navigation aerienne: Son origine - Son application Son avenir (Paris: Sirey, 1930); Maurice Lemoine, Traite de droit aerien 81-91 (Paris: Sirey, 1947); Clement L. Bouve, The Development of International Rules of Conduct in Air Navigation, 1 Air Law Review 1 (1930); Daniel Goedhuis, Civil Aviation a~er the War, 36 American Journal of International Law 596 (1942); Andre Henry-Coiiannier, Examen de principe de la convention internationale portant reglementation de la navigation aerienne du 13 octobre 1919 (Paris: edition aerienne, 1922); Nicolas Mateesco-Matte, Traite de droit aerien-aeronautique, 133-154 (2nd ed., Paris: Pedone, 1964); see also Albert Ropert, L'origine de la Convention aerienne du 13 Octobre

1919, son extension progressive de 1922 a1928 et sa revision, 13 Revue juridique internationale de la locomotion aerienne 557 (1929). 3. Convention on International Civil Aviation, signed at Chicago, 7 December 1944, 15 UNTS 295 [hereinafter '1944 Chicago Convention']. 4. Manley 0. Hudson, Aviation and International Law, 24 American Journal of International Law 228, 230 (1930). 5. See Johanna Francina Lycklama a Nijeholt, Air Sovereignty 9-21 (The Hague: Nijhoff, 1910); Harold D. Hazeltine, The Law of the Air (London: University of London Press, 1911); Henri Guibe, Essai sur la navigation aerienne 183-213 (Paris: Marchal & Godde, 1912); Paul Fauchille, Le domaine aerien et le regime juridique des aerostats, 8 Revue Gener ale de droit international public 414 (1901); Johanna Francina Lycklama aNijeholt, La souverainete aerienne, 1 Revue juridique internationale de la locomotion aerienne 229 (1910); Johanna Francina Lycklama a Nijeholt, La souverainete aerienne, 1 Revue juridique internationale de la locomotion aerienne 297 (1910); William M. Gibson, The Development of International Air Law to 1919, 5 Temple Law Quarterly 161 (1931).

4

Chapter 1: The Legacy of the 1919 Paris Convention

§1.02

succes'. 6 Many authors indeed foresaw the major benefits that aviation could bring to world peace and prosperity and, as a consequence, defended the thesis of the 'freedom of the air' which was rejected by the very first Article of the 1919 Paris Convention. Regulating aviation in times of peace, the Paris Convention was the first multilateral instrument dealing with aviation, and, though no longer in force since it was superseded by the 1944 Chicago Convention, it remains important for aviation lawyers, not only from sentimental or historical perspectives. It constituted the foundation stone of the international legal regime applicable to air transport and paved the way for the current Chicago system: The Convention is the historically first multilateral instrument of international law relating to air navigation. It helped to formulate also the principles of the domestic law of contracting states, many of whom by 1919 did not have any laws governing aviation. (... )Its pioneering contribution to the formulation of some basic concepts of air law survives and maintains its relevance. 7 Yet, some of the choices made at the end of the First World War were discarded later on when negotiating the Chicago Convention, but it nevertheless demonstrated that it was possible to multilaterally agree on core legal principles and, more importantly, on a sound method to regulate technical matters, which is still relevant today. At the end of a long maturation process, the drafters of the Paris Convention addressed the issue of air sovereignty but did not lose sight of the need for uniform technical rules, in a permanently changing industry. As a consequence, the drafters of the Paris Convention established the International Commission for Air Navigation (ICAN). It confirmed that international air law could not develop without proper institutionalisation, thus opening the way for the later creation of the International Civil Aviation Organisation. Hence, the legacy of the 1919 Paris Convention is still strong today, regarding both the institutional and normative structures fortifying air law. The study of the factors which contributed to its adoption, as well as its content, can help in understanding some present features of the venerable 1944 Chicago Convention. §1.02

THE SOVEREIGNTY DEBATE IN THE GENESIS OF THE 1919 PARIS CONVENTION

From the MONTGOLFIER brothers to C. ADER, H. FARMAN, L. BLERIOT or P.-G. LATECOERE, French engineers and pilots provided a significant contribution to aerial navigation from its inception, starting by the name given to 'aviation'. 8 It is, then, more than logical that French lawyers, or the French-speaking ones, also contributed greatly to the legal debates which surrounded the first uses of this new means of transport, even

6. Albert Roper!, La convention intemationale du 13 octobre 1919 portant reglementation de la navigation aerienne: Son origine - Son application - Son avenir, supra n. 2, at 12: 'the lawyers were not content to follow the progress of the aeronautical technique, but anticipated most of its successes.' (own translation). 7. Michael Milde, International Air Law and ICAO 10 (The Hague: Eleven International, 2016). 8. The term 'aviation' was first used by Guillaume-Josef-Gabriel de La Landelle in his book Aviation, ou Navigation aerienne (Paris: D. Dentu, 1863) and later used by C. Ader.

5

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Vincent Correia

before the technique allowed for the widespread usage we know today. As acknowledged by E. PEPIN in his fundamental course on Air Law delivered at the Hague Academy of International Law: En matiere aeronautique, (... ) les juristes ont devance les inventeurs; bien avant qu'un aeronef ait reellement vole, les juristes se sont preoccupes des problemes que soulevait deja la circulation des ballons ou aerostats et qu'allait soulever la navigation des appareils plus lourds que !'air; ils se sont efforces de trouver aces problemes des solutions internationales. 9 At the heart of the discussions, the issue of sovereignty was without a doubt the most crucial one as, depending on the solution to be adopted, the entire legal regime governing civil aviation would be drastically different. The drafters of the 1919 Paris Convention could nevertheless rely on pre-existing academic debates and, drawing on the failure of the 1910 Paris International Conference address this issue in the wake of the 1919 Paris Peace Conference. Yet, the advent of the First World War radically changed the terms of the debate.

[A]

Pre-existing Legal and Academic Debates on Air Sovereignty

The 1919 Paris Convention is the result of years of talks about the future regime governing international aviation, even if the rapid technological advancements made during the First World War urged the governments to finally agree on core principles. At the legal level, the process was stunningly swift and, furthermore, oriented towards international co-operation from its inception. Putting aside the first academic work dealing with the status of the air redacted in the seventeenth century, 10 and the primitive legal instruments concerning hot air balloons adopted in France 11 or Italy, the discussion on the future of air law really began in 1889 in Paris, 12 when the first International Congress of Aeronautics was convened. 13 It was attended by representatives of Brazil, France, the United States, Mexico, the United Kingdom and Russia. The delegates decided to establish a Permanent International Aeronautics Commission, which held several meetings (Paris in 1900, Milan in 1906, Brussels in 1907, Nancy in 1909 and Turin in 1911). At the same time, learned societies started discussing this topic, most notably the International Law Association and the Institut de droit international. The latter, at the 9. Eugene Pepin, Le droit aerien, 71 Collected Courses of the Hague Academy of International Law 479, 481 (1947): 'Concerning aeronautics, jurists have anticipated the inventors; long before an

aircraft actually flew, lawyers were concerned about the problems already raised by balloon or aerostat traffic and by those that would raise the navigation of aircraft heavier than air; they strove to find international solutions to these problems.' (own translation). 10. Johannes Stephanus Dancko, De Jure Principis Aereo (Frankfurt, 1687). 11. See Harold Caplan, The Crime of Flying: The Way Forward to 1784, 34 Air and Space Law 351 (2009). 12. See Eugene Pepin, Le droit aerien, supra n. 9, at 481. 13. See Arrete du 5 decembre 1888 du Ministre du commerce et de l'industrie, Journal Officiel de la Republique frarn;aise, 6 December 1888, no. 332, 5172; see also, Albert Ropert, La convention intemationale du 13 octobre 1919 portant reglementation de la navigation aerienne: Son origine - Son application - Son avenir, supra n. 2, at 20-24.

6

Chapter 1: The Legacy of the 1919 Paris Convention

§1.02[A]

instigation of P. FAUCHILLE, held sessions on air law in Neuchatel, 14 Brussels, 15 Ghent, 16 . 18 Florence, 17 Pans an d Ma dn.d . 19

(I}

The 'Second Battle of the Books'20

The academic debates focused, as is well known, 21 on the opposing views regarding the status of the air: P. FAUCHILLE22 and E. NYS, 23 most notably, promoted the thesis of the 'freedom of the air', while authors such as J. WESTLAKE defended the idea of 'air sovereignty', mitigated by the right of innocent passage. For the tenants of the freedom of the air, airspace was a res communis omnium, while for the proponents of sovereignty, the arguments were 'generally placed on the analogy of the principle of private law: "Qui dominus est soli, dominus est coeli et inferorum'" .24 It must be nevertheless noted that, at the beginning at least, the majority of authors were addressing the question of the law applicable to airspace from theoretical and philosophical perspectives, focusing more on the air in itself, as a medium, than on its usages. Hence, radio communications, telegraphy and aviation were often examined conjointly, which somehow led a majority of thinkers to incline in favour of the theory of the freedom of the air. The diverging views were, in any case, not as clearly divided as it is often thought. The doctrinal postures ranged on a subtle scale from absolute freedom to unrestricted sovereignty. Many authors adopted intermediary positions and sometimes

14. Annuaire de l'Institut de Droit international, Session de Neuchfitel - Septembre 1900 (Paris: Pedone, 1900). 15. Annuaire de l'Institut de Droit international, Session de Bmxelles - Septembre 1902 (Paris: Pedone, 1902). 16. Anmiaire de l'Institut de Droit international, Session de Gand- Septembre 1906 (Paris: Pedone, 1907). 17. Annuaire de l'Institut de Droit international, Session de Florence - Septembre-Octobre 1908 (Paris: Pedone, 1908). 18. Annuaire de l'Institut de Droit international, Session de Paris - Mars-Avril 1910 (Paris: Pedone, 1910). 19. Annuaire de l'Institut de Droit international, Session de Madrid - Avril 1911 (Paris: Pedone, 1911). 20. Joseph F. English, Air Freedom: The Second Battle of the Books, 2 Journal of Air Law and Commerce 356 (1931). 21. See Johanna Francina Lycklama a Nijeholt, Air Sovereignty, supra n. 5 at 9-21; Harold D. Hazeltine, The Law of the Air, supra n. 5, at 1-53; Henri Guibe, Essai sur la navigation aerienne, supra n. 5, at 183-213; Carlos Alberto Pasini Costadoat, El espacio aereo (Dominium coeli) (Buenos Aires: Depalma, 1955); Joseph Kroell, Traite de droit international public aerien 13-68 (Part 1, Paris: Editions internationales, 1934); Joseph F. English, Air Freedom: The Second Battle of the Books, supra n. 20. 22. Paul Fauchille, Le domaine aerien et le regime juridique des aerostats, supra n. 5. 23. Ernest Nys, Droit et aerostats, 34 Revue de droit international et de legislation comparee 501 (1902). 24. Lambertus Hendrik Slotemaker, Freedom of Passage for International Air Services at 3 (Leiden: Sijthoff, 1932); see also, John Cobb Cooper, Roman Law and the Maxim Cujus Est Solum in International Air Law, 1 McGill Law Journal 23 (1952); Albert I. Moon Jr., A Look at Airspace Sovereignty, 29 Journal of Air Law and Commerce 328, at 329-330 (1963).

7

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Vincent Correia

mitigated their own initial enthusiasm, such as P. FAUCHILLE who admitted progressively more rights for the overflown States. 25 As acknowledged by J. KROELL, 'intermediary systems' were imagined to avoid excessive rigidity and subsequent problems, which could derive from principles construed too strictly. 26 H. GurnE identified five different positions, 27 including limited freedom or restricted sovereignty: 28 (1) The theory of absolute freedom; 29 (2) The division of airspace theory, 30 which could include freedom within the upper airspace and, by analogy with maritime law, 31 sovereignty in the lower airspace called 'territorial zone' (or, alternatively, freedom limited to the lower airspace, for commercial purposes); 32 (3) The theory of freedom limited by 'conservation rights,' (i.e., for the safety of the overflown State and of persons and properties), without limitation concerning the altitude; 33 (4) The theory of unlimited sovereignty, tempered by the right of 'innocent passage' as a servitude; 34 (5) The theory of unrestricted sovereignty. 35

Putting aside the tenants of absolute freedom and those in favour of unrestricted sovereignty, many doctrinal theories were in fact converging. The majority of authors tried to preserve, at the same time, the rights of States and the needs of aerial navigation, notwithstanding the different emphasis put on either freedom or control by the overflown State. Hence, as J. F. LYCKLAMA A NJJEHOLT rightly noted: 25. See Maurice Lemoine, Traite de droit aerien, supra n. 2, at 74. 26. Joseph Kroell, Traite de droit international public aerien, supra n. 21, at 16. 27. Henri Guibe, Essai sur la navigation aerienne, supra n. 5, at 183-213; See also, Johanna Francina Lycklama a Nijeholt, Air Sovereignty, supra n. 5 at 9-21. 28. Some of them being sometimes mixed by the authors, for instance, by advocating, at the same time, for zones and conservation rights. 29. Paul Fauchille, Le domaine aerien et le regime juridique des aerostats, supra n. 5; Henry Wheaton, Elements oflnternational Law 292 (4th ed., London: Stevens and Sons, 1904); Ernest Nys in Annuaire de l'Institut de Droit international, Session de Bmxelles - Septembre 1902, supra n. 15, at 86-114. 30. See Alexandre Merignhac, Traite de droit public international 398-410 (Part 2, Paris: LGDJ, 1907); Ferdinand Ferber, L'Aviation, ses debuts, son developpement. De crete a crete, de ville a ville, de continent a continent 153-154 (Paris: Berger-Levrault, 1909); Maurice Lemoine, Traite de droit aerien, supra n. 2, at 76-77; Franz von Holtzendorff, Handbuch des Volkerrechts 230 (Berlin: Carl Habel, 1887); Johann Caspar Bluntschli, Das moderne Volkerrecht der zivilisierten Staaten: als Rechtsbuch dargestellt 354 (Niirdlingen: Beck, 1878). 31. See Nicolas Mateesco-Matte, Traite de droit aerien-aeronautique, supra n. 2, at 92-100. 32. See Joseph Kroell, Traite de droit international public aerien, supra n. 21, at 15. 33. See Paul Fauchille in Annuaire de l'Institut de Droit international, Session de Gand - Septembre 1906, supra n. 16, at 293-311; Louis Rolland, La telegraphie sans fil et le droit des gens, 13 Revue generale de droit international public 58. 34. See Alexandre Merignhac, Traite de droit public international, supra n. 30, at 398-410. 35. See Sir Henry Erle Richards, Sovereignty over the Air: A Lecture Delivered Before the University of Oxford, on October 26, 1912 (Oxford: Clarendon, 1912); Harold D. Hazeltine, The Law of the Air, supra n. 5, at 44; Frantz Despagnet, Cours de droit international public 663-668 (4th ed., Paris: Sirey, 1910); see also, aboutJohn Westlake's position, Paul Fauchille in Annuaire de l'Institut de Droit international, Session de Gand - Septembre 1906, supra n. 16, at 299.

8

Chapter 1: The Legacy of the 1919 Paris Convention

§l.02[A]

The difference between this sovereignty group and the greater part of those who claim air freedom is not very great, the latter group proposing freedom but many rights for the ground State, the former asking sovereignty, but free passage for 36 aeronautS.

{2]

The Diverging Approaches Adopted by Learned Societies

These academic debates, and the corresponding uncertainties regarding the issue of sovereignty, led to different approaches being adopted by the learned societies and associations: - At the Congres juridique international pour la reglementation de la locomotion aerienne, held in Verona in June 1910, the participants declared that the airspace over land and territorial waters should be subject to the sovereignty of the State. - The Institut de droit international, during its 1911 Madrid Session, adopted a draft Convention containing an Article 7 proclaiming the freedom of air navigation, only limited by 'conservation rights'. The 'freedom of the air' had already been accepted by the Institut during its 1906 Ghent Session. - The Federation aeronautique internationale adopted in June 1913, in Brussels, a draft Convention advocating for the freedom of the air, limited to the aircraft of the contracting parties. 37 The Comite juridique international de l' aviation conducted more technical work, consisting of drafting a Code international de l' Air, first presented in Paris in 1910 38 and later perfected. 39 The first Article of this Code proclaimed the freedom of the air, limited by 'conservation rights'. The International Law Association adopted several resolutions in 1913, during its Madrid Session, recognising the right of the States to prohibit or regulate the overflight of their airspace, but advocating at the same time for the freedom of air navigation for aircraft of all countries. 40 Thus, according to this association, State sovereignty extended to airspace, but its commercial use should be free, provided that the national rules were respected. Indeed, the position of the learned societies which favoured the complete freedom of the air was unequivocally rejected by the drafters of the Paris Convention in 1919, which recognised the principle of air sovereignty. The insistence of these scholars, who anticipated the future development of air transport, nevertheless had the

36. Johanna Francina Lycklama aNijeholt, Air Sovereignty, supra n. 5 at 15. 37. See Nicolas Mateesco-Matte, Traite de droit aerien-aeronautique, supra n. 2, at 105. 38. See Edouard d'Hooghe, Droit aerien 4-5 (Paris: P. Dupont, 1914). 39. See Comite juridique international de !'aviation, 4e Congres international de legislation aerienne -19-22decembre1921 -Monaco (Paris: CJIA, 1921). 40. See International Law Association, Compte-rendu de la vingt-lmitieme conference tenue ii l' Academie de Jurispmdence et de Legislation de Madrid, Octobre 1er - 6me 1913 (London: Flint, 1914).

9

§1.02[B]

Vincent Correia

virtue of making crystal clear that an acceptable balance between the rights of the States and the interests of aviation had to be met, as to which see the following quote: complete freedom, if only from the fact that measures concerning public security and health could not be enforced, would bring the States into an untenable position. Hence such a point of view found practically no support, and very soon fell into the background. Therefore a solution was sought in many directions by which the rights of the States would be guaranteed sufficiently on the orie hand and, on the other, allowance was made for the interests of air navigation for the proper safeguarding of which as great as freedom of movement as possible is a primary requirement. 41

More generally, the work conducted by the scholars helped reach a consensus on some principles that still remain valid today. For instance, both the Comite juridique international de l' aviation and the Institut de droit international agreed on the fact that an aircraft can only be granted one nationality, 42 as established nowadays under Articles 17 and 18 of the 1944 Chicago Convention and, in the past, under Articles 6 and 7 of the 1919 Paris Convention. Most importantly, all these projects demonstrated the need for 'internationalism' 43 when it comes to aviation, thus opening the way for an international Convention.

[B]

The 1910 Paris International Conference

The significant contribution of the academic debates taking place during the infancy of aviation law did not suffice to avoid the failure of the first International Conference, convened in Paris in 1910 at the invitation of the French Conseil des Ministres. 44 Following several aerial intrusions of German balloons into French territory, 45 the 1910 Paris Conference was attended by the representatives of eighteen countries, 46 who sought to unify the law governing international aviation. On the basis of a detailed questionnaire, as suggested by the German Government, and bearing in mind the legal debates undertaken in other fora, the diplomatic Conference took place from 18 May to 29 June 1910, when it was officially 'suspended' until November 1910, but never reinitiated. 41. Lambertus Hendrik Slotemaker, Freedom of Passage for International Air Services, supra n. 24, at 4. 42. Edouard d'Hooghe, Droit aerien, supra n. 38, at 11. 43. Marcel Le Goff, Manuel de droit aerien - Droit Public 92 (Paris: Dalloz, 1954). 44. See Albert Ropert, La convention internationale du 13 octobre 1919 portant reglementation de la navigation aerienne: Son origine - Son application - Son avenir, supra n. 2, at 24-26; Eugene Pepin, La Conference de Paris de 1910 ou le Premier Essai de Reglementer /'Aviation Internationale, 3 Annals of Air & Space Law 185 (1978); John Cobb Cooper, The International Air Navigation Conference, Paris 1910, 19 Journal of Air Law and Commerce 127 (1952). 45. Michael Milde, International Air Law and ICAO, supra n. 7, at 8; John Cobb Cooper, The International Air Navigation Conference, Paris 1910, supra n. 44, at 128. 46. Austria-Hungary, Belgium, Bulgaria, Denmark, France, Germany, Great Britain, Italy, Luxembourg, Monaco, the Netherlands, Portugal, Rumania, Russia, Serbia, Spain, Sweden, Switzerland and Turkey. As Micheal Milde pointed out: 'The USA and States from other continents were not invited since their geographic distance made the operation of their aircraft in European air space unrealistic' (Michael Milde, International Air Law and !CAO, supra n. 7, at 8).

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§l.02[B]

The main cause of this failure is to be found in the diverging opinions regarding the issue of sovereignty, as reflected by the strict position expressed by the representatives of Great Britain. At that time, 'discussion of the extent of national sovereignty in the airspace had become widespread', 47 but this issue was maybe devalued, or voluntarily ignored, by the organisers of the diplomatic Conference: Malgre tous les efforts des organisateurs pour eviter un conflit sur la question de souverainete, soigneusement passee sous silence, et sans doute meme a cause de cette discretion, la Conference n'avait pas reussi a mettre sur pied la convention internationale dont chacun proclamait portant la necessite. 48 In spite of not having generated the desired Convention, and of being very rarely addressed by the legal doctrine, 49 this Conference had nevertheless a significant influence on the work conducted in 1919, as reflected by the numerous references made to it by the special Aeronautics Commission of the 1919 Paris Peace Conference.50 This Conference settled, first of all, some terminological debates by adopting the terms of 'aircraft' ('aeronef') or 'airworthiness certificates' ('certificats de navigabilite'), still in use today. 51 Furthermore, the delegates agreed on some fundamental principles: the distinction between civil and State aircraft on the basis of their usage; 52 the registration and 'nationality' of aircraft; crew licences (based on the International Aeronautical Federation rules); documents carried on board; prohibition of explosives; and basic rules of the air. The French delegation also suggested the creation of a Bureau international de la navigation aerienne, which came to reality in 1919 with the establishment of the International Commission of Air Navigation. Hence, as recalled by J. C. COOPER: When the 1910 conference met, no acceptable plan existed for international flight regulation. When the conference adjourned, it had completed all but a few clauses of a draft convention, including such subjects as aircraft nationality, registration, aircraft certificates, crew licences, logbooks, rules of the road, transport of explosives, photographic and radio equipment in aircraft, and special provisions dealing with public aircraft. The conference also agreed that subjacent States might set up prohibited zones above which no international flight was lawful, recognised that cabotage could be reserved for national aircraft, and provided that the establishment of international air lines will depend upon the assent of

47. John Cobb Cooper, The Right to Fly 18 (New York: Henry Holt, 1947) 18. 48. Albert Ropert, La convention intemationale du 13 octobre 1919 portant reglementation de la navigation aerienne: Son origine Son application - Son avenir, supra n. 2, at 26: 'In spite of all

the efforts of the organizers to avoid a conflict over the question of sovereignty, carefully ignored, and perhaps even because of this discretion, the Conference had failed to set up the international Convention which was proclaimed, by all, to be necessary.' (own translation). 49. See Eugene Pepin, La Conference de Paris de 1910 ou le Premier Essai de Reglementer l'Aviation Intemationale, supra n. 44, at 204. 50. See Conference intemationale de navigation aerienne, Paris, 8 mai - 28 juin 1910, Proces-verbaux des seances et annexes (Paris: lmprimerie nationale, 1910). 51. Eugene Pepin, La Conference de Paris de 1910 on le Premier Essai de Reglementer l'Aviation Intemationale, supra n. 44, at 191-192. 52. Malgorzata Polkowska, The Development of Air Law: From the Paris Conference 1910 to the Chicago Convention of 1944, 23 Annals of Air & Space Law 59, 60 (2008).

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interested States. These principles were to reappear in the Paris Convention of 1919 and certainly influenced the Chicago Convention of 1944. 53 Alas, in spite of the eagerness to adopt a legal framework for aviation, and the shared consciousness that international rules were more desirable, the advent of the First World War delayed the prospects of an international agreement. The unfinished work accomplished at the 1910 Paris Conference did not, however, lead to a legal vacuum. Unable to agree at the international level, several States decided to enact internal legislation to regulate aerial activities. By way of Decree adopted on 21 November 1911, 54 France had already established its national regime, which strikingly echoed some principles identified during the Paris Conference - most notably regarding registration, 55 marks of nationality, 56 pilot licences, 57 on-board documents 58 and the definition of State aircraft. 59 It is worth noting that the Decree contained an Annex enumerating technical prescriptions for lighting and primitive rules of the air, thus prefiguring the normative technique adopted in the 1919 Paris Convention and still used nowadays in the Chicago Convention. France was, of course, not the only country that decided to legislate on the subject matter, as this movement was also shared with Germany, 60 Great Britain, 61 Italy62 and Russia, among others. 63 This lead to the first bilateral arrangements, including the exchange of letters between the French and German Governments, 64 concluded by States willing to control the access to their skies and desiring to circumvent the inconvenience of lacking an international multilateral instrument. In this respect, the First World War maybe helped the unification of international aviation law, as it stopped the multiplication of bilateral arrangements, which would have had, arguably, led to a major fragmentation of views among contracting parties. 65 However, at the end of this conflict, the issue of sovereignty was more acute than ever, as: Led by France, whose jurists had been the outstanding opponents of national airspace sovereignty, country after country of Europe declared its air boundaries closed. During World War I, belligerent aircraft flying over neutral territory were 53. 54. 55. 56. 57. 58. 59. 60.

John Cobb Cooper, The International Air Navigation Conference, Paris 1910, snpra n. 44, at 127. Reproduced in Edouard d'Hooghe, Droit aerien, snpra n. 38, at 41-50. Article 4 of the 1919 Paris Convention. Ibid., Article 5. Ibid., Articles 8 to 10. Ibid., Articles 18 to 22. Ibid., Article 28. See Elmar Maria Giemulla, International and EU Aviation Law: Selected Issnes 8-9 (Alphen aan den Rijn: Kluwer Law International, 2011).

61. Aerial Navigation Act, 1911; Aerial Navigation Act, 1913. 62. Regio decreto no. 1008 da convertirsi in legge, che vieta la navigazione aerea su qualunque punto de! territorio dello stato, delle colonie e de! mare territoriale, Gazzetta Ufficiale n. 227, 22 September 1914. 63. See Peter H. Sands, Jorge de Sousa Freitas & Geoffrey N. Pratt, An Historical Snrvey of International Air Law Before the Second World War, 7 McGill Law Journal 24 (1960-1961). 64. See Louis Rolland, L'accord franco-allemand dn 26 jnillet 1913 relatif a la navigation aerienne, 20 Revue generale de droit international public 697 (1913); Nicolas Mateesco-Matte, Traite de droit aerien-aeronantiqne, snpra n. 2, at 109. 65. Albert Ropert, La convention internationale dn 13 octobre 1919 portant reglementation de la navigation aerienne: Son origine Son application - Son avenir, snpra n. 2, at 32.

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forced to land and their crews were interned exactly as if surface boundaries had been crossed. Political frontiers had been built in the airspace where physical 66 boundaries could never be.

[CJ

The Aeronautical Commission of the 1919 Paris Peace Conference

Notwithstanding the fact that France expressed its desire to convene a new International Conference on air law as soon as the conflict was finally over, the resentment towards the defeated countries conditioned the outcome of the discussions from their outset. At the invitation of G. CLEMENCEAU, by a letter dated from 24 January 1919, to convene an International Conference on air law, 67 the Supreme Council of the Peace Conference established a Special Aeronautical Commission by two decisions, of 12 and 68 15 March 1919. This Commission was charged with drafting the text of the soon-to-be Paris Convention, and it comprised representatives of the winning countries and their allies. This composition raised a lot of criticism from defeated and neutral countries, 69 most notably from Germany, which already had to accept heavy obligations under the Versailles Treaty. 70 Indeed, this Commission pursued the work conducted by the Comite interallie d'Aviation set up in September 1917, which only reunited representatives of France, Great Britain, the United States and Italy. These countries, having two representatives in the Commission, were, however, later joined by Japan, Belgium, Brazil, Cuba, Greece, Portugal, Romania and the Kingdom of Slovenes, Croats and Serbs, which each had one delegate.

66. John Cobb Cooper, The Right to Fly, supra n. 47, at 22. 67. See Arthur K. Kuhn, International Aerial Navigation and the Peace Conference, 14 American Journal of International Law 369 (1920); Suzanne Pessereau, Des modifications ii la convention du 13 octobre 1919 portant reglementation de la navigation aerienne 10-12 (Paris : Editions internationales, 1935). 68. See John Cobb Cooper, The Right to Fly, snpra n. 47, at 26-32. 69. Marcel Le Goff, Manuel de droit aerien -Droit Public, snpra n. 43, at 97-98; Suzanne Pessereau, Des modifications ii la convention du 13 octobre 1919 portant reglementation de la navigation aerienne, snpra n. 67, at 19-30; Andre Henry-Coiiannier, Examen de prindpe de la convention intemationale ponant reglementation de la navigation aerienne du 13 octobre 1919, supra n. 2, at 8; Hermann Doring, La Convention de Paris et les Etats, 12 Revue juridique internationale de

la locomotion aerienne 385, 385 (1928). 70. Treaty of Peace with Germany signed at Versailles on 28 June 1919. See, most notably, Article 313: 'The aircraft of the Allied and Associated Powers shall have full liberty of passage and landing over and in the territory and territorial waters of Germany, and shall enjoy the same privileges as German aircraft, particularly in case of distress by land or sea.' Article 314: 'The aircraft of the Allied and Associated Powers shall, while in transit to any foreign country whatever, enjoy the right of flying over the territory and territorial waters of Germany without landing, subject always to any regulations which may be made by Germany, and which shall be applicable equally to the aircraft of Germany and to those of the Allied and Associated countries.'

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Two draft Conventions were proposed by, on the one hand, France and, on the other hand, Great Britain, 71 both containing technical annexes. The final draft, after intense efforts to merge the different proposals, was presented to the Supreme Council of the Peace Conference on 10 July 1919, accompanied by several reservations. 72 At the invitation of the Supreme Council, fearing that too many reservations would undermine the project, a new proposal was submitted in September 1919 and, after its formal approval, the Convention was opened to signature on 13 October 1919 for allied countries having participated in the Peace Conference. As was to be expected, the issue of sovereignty was the first to be addressed during the first meeting of the Special Aeronautical Commission on 17 March 1919: while the United States defended the thesis of complete and exclusive sovereignty of States over their airspace, Great Britain advocated for greater freedom, yet limited by preservation rights for the overflown country. The legal subcommittee of the Special Aeronautical Commission nevertheless endorsed the thesis of air sovereignty, explaining: L'espace atmosphenque participe au regime juridique du territoire sous-jacent. Ce territoire est-ii celui d'un Etat particulier? Alors l' espace atmospherique est soumis a la souverainete de cet Etat. Echappe-t-il, comme la mer libre, a toute souverainete? Alors l'espace atmospherique est aussi libre, au-dessus de lamer, que lamer elle-meme. 73 This strict approach was, however, immediately counterbalanced by a statement acknowledging that the Contracting States of the future Convention should grant each other the right to overfly their territory, as long as the other provisions of the Convention were respected. In other words, the legal subcommittee was paving the way for the recognition of both exclusive and complete sovereignty and the right of 'innocent passage', but only for allied States. §1.03 [A]

AIR SOVEREIGNTY IN THE 1919 PARIS CONVENTION

The First Steps Towards the Establishment of Air Sovereignty

The 1919 Paris Convention was the first multilateral instrument to consecrate the victory of the theory of 'air sovereignty' in a similar way as it is construed today. It nevertheless allowed for the right of innocent passage, which is often erroneously presented as a restriction of the sovereignty of the Contracting States. The real and 71. Albert Ropert, La convention intemationale du 13 octobre 1919 portant reglementation de la navigation aerienne: Son origine - Son application - Son avenir, supra n. 2, at 45; John Cobb Cooper, United States Participation in Drafting Paris Convention 1919, 18 Journal of Air Law and Commerce 266 (1951). 72. See Albert Ropert, La convention intemationale du 13 octobre 1919 portant reglementation de la navigation aerienne: Son origine - Son application - Son avenir, supra n. 2, at 48-51. 73. Quoted in Ibid., at 123: 'The atmospheric space is tied with the legal regime of the underlying

territory. Is this territory of a particular State? Then atmospheric space is subject to the sovereignty of that State. Does it escape, like the open sea, from all sovereignty? Then the atmospheric space is as free, above the sea, as the sea itself.' (own translation).

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uch more subtle !imitations to sovereignty could be found in the normative and :stitutional innovations introduced in the Convention, which most notably lead to the creation of the ICAN.

[BJ

The Consecration of the 'Air Sovereignty' Theory

Regarding the topical question of sovereignty, the main provision of the 1919 Paris Convention is without a doubt Article 1, which provided that: The High Contracting Parties recognise that every Power has complete and exclusive sovereignty over the air space above its territory. 74 This provision - whose essence is still the cornerstone of contemporary aviation law, as reflected by Article 1 of the 1944 Chicago Convention - supposed a clear and definite rejection of all the above-mentioned theories on airspace freedom, including those promoting a division of airspace. In the words of John Cobb Cooper: The adoption by the Aeronautical Commission of the principle of sovereignty, carrying with it the right to exclude foreign aircraft from national airspace, was final. The theory of international freedom of flight, either in the entire airspace or in some undefined upper zone, was definitely repudiated. 75 The wording chosen by the drafters of the 1919 Paris Convention denoted the desire to consecrate a pre-existing principle, applicable not only to the contracting parties but also to all nations. Hence, the sovereignty principle 'usque ad ccelum' is presented as both universal and independent of the will of the signatories, giving it the value of customary international law, be it only by crystallisation. It is worth noting that a similar formulation was adopted in the 1926 Ibero-American Convention on Air Navigation, 76 as well as in the 1928 Pan-American Convention. 77 However, notwithstanding this unambiguous posture, it must be recalled that the influence of the First World War was crucial in settling the sovereignty debate. Before the conflict: although no one was willing to admit it, the fact is that had a majority rule been in effect at the Paris conference in 1910 and had a vote been taken, a convention might have been adopted on this majority vote solemnly recognizing as the long-established Law of Nations that the 'air is free.' But between the 1910 and 1919 conferences war had intervened. 78 The extent of air sovereignty in the 1919 Paris Convention is very similar to that established in the 1944 Chicago Convention, most notably regarding the faculty to reserve cabotage rights to national aircraft. 79 After the early modification of the 74. Article 1, paragraph 1 of the 1919 Paris Convention. 75. John Cobb Cooper, The Right to Fly, supra n. 47, at 32. 76. lbero-American Convention Relating to Air Navigation, signed at Madrid on 1 November 1926. 77. Habana Convention on Commercial Aviation, signed at Habana, Cuba, on 20 February 1928; see

Edward P. Warner, The International Convention for Air Navigation: And the Pan American Convention for Air Navigation: A Comparative and Critical Analysis, 3 Air L. Review 221 (1932). 78. John Cobb Cooper, The Right to Fly, supra n. 47, at 33. 79. Article 16 of the 1919 Paris Convention.

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Convention, it also explicitly recognised that Contracting States were entitled to conclude separate agreements with third countries, 80 as long as they did not infringe on the rights of other contracting parties and were compatible with the general principles of the Convention. The revised Article 5, which helped overcome the opposition of neutral and defeated States, 81 also ruled that such agreements were to be communicated to the ICAN for further notification to the other contracting parties. This regime is strikingly similar to that established by the current Article 83 of the Chicago Convention. More generally speaking, the 1919 Paris Convention prefigured the legal architecture we still know nowadays: a general Convention laying down the essential legal and technical requirements to perform international air services complemented by a network of bilateral agreements, to ensure market access by the exchange of traffic rights. Of course, the 1944 Chicago Convention does not impose bilateralism but neither did the 1919 Paris Convention. De lege lata, both instruments only establish the principle of prior permission to be given by States, the only notable exception being the right of innocent passage granted by the 1919 Paris Convention and absent from the 1944 Chicago one.

[C]

The Right of Innocent Passage

(1)

A Concession Reserved to Contracting Parties

Article 2 of the 1919 Paris Convention stated that: Each contracting State undertakes in time of peace to accord freedom of innocent passage above its territory to the aircraft of the other contracting States, provided that the conditions laid down in the present Convention are observed. 82 Hence, J. WESTLAKE' s theory had triumphed over P. FAUCHILLE' s: the recognition of sovereignty over the territory and territorial waters of each and any nation was accompanied by the right of innocent passage. As defined by M. LEMOINE: 'Le passage est inoffensif s'il ne porte pas atteinte aux inten~ts fondamentaux de l'Etat sous-jacent, ni a ceux de ses nationaux et s'il est effectue dans la stricte observation de la

80. The original text of Article S prohibited the Contracting States from allowing entry to and

overflight of their territory by non-contracting parties. Several third countries, including Denmark, Spain, Finland, Norway, the Netherlands and Switzerland met in December 1919 in Copenhagen and decided to postpone their adhesion to the 1919 Paris Convention, in order to force the modification of the said provision. The requested modifications were introduced by two Protocols, adopted in 1922 and 1923, which entered into force in 1926 and allowed the contracting parties to conclude air services agreements with third countries. See Lambertus Hendrik Slotemaker, Freedom of Passage for International Air Seroices, supra n. 24, at 21-23. 81. See Alfred Wegerdt, Germany and the Aerial Navigation Convention at Paris, October 13, 1919, 1 Journal of Air Law and Commerce 1 (1930); Jonkheer van den Berch van Heemstede, Les Modifications apportees a la Convention aerienne intemationale de 1919 sont-elles suffisantes?, 8 Revue juridique internationale de la locomotion aerienne 537 (1924); Edmond Pittard, L'adhesion des nentres a la Convention Intemationale de la Navigation Aerienne, 7 Revue juridique internationale de la locomotion aerienne 3 (1923). 82. Article 2, paragraph 1 of the 1919 Paris Convention.

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reglementation ectict.ee. ' This r~ght entailed, albeit implicitly, the right to land, 84 most notably because Article 18 provided that: 83

Every aircraft passing through the territory of a contracting State, including landing and stoppages reruonably necessary for the purpose of such transit, shall be exempt from any seizure on the ground of infringement of patent, design or model, subject to the deposit of security the amount of which in default of amicable agreement shall be fixed with the least possible delay by the competent authority 85 of the place of seizure. Some could think that what would become known as the 'first freedom' (and the correlative implicit 'second freedom') is, per se, a restriction of the State's sovereignty. The paradox is, however, only apparent: the limitation of the State's sovereignty by way of an international agreement is a mere demonstration of the exercise of said sovereignty. Indeed, contrary to the principle of sovereignty, the wording chosen in Article 2 of the Convention denoted that the right of innocent passage was a concession86 between Contracting States in times of peace 87 and in no way a right available to all States under general international law. 88 The right of innocent passage was hence reserved and only granted to other contracting, trusted, parties. Thus, former enemies were excluded: The Conference halted between two opinions. One of absolute unlimited sovereignty with regard to ex-enemies; one of relative sovereignty limited by freedom of passage in the case of the states that trusted each other. In respect of 'trustworthy' states, this freedom was considered normal - as a principle of law inherent to the air regime. (... ) On account of the wish to exclude the ex-enemy states, the view was formed that there was no way of acting otherwise. Eventually, however, this led to the right of passage becoming regarded as no more than a concession, whereas it is very clear from observations by the authors of the Convention that this right was considered a 'conditio sine qua non' for international aviation. 89

[2]

The Limited Reach of the Right of Innocent Passage

The right of innocent passage was heavily restricted in the Convention itself: not only did Article 3 allow States to establish prohibited areas, but also Article 15 submitted the

83. Maurice Lemoine, Traite de droit aerien, supra n. 2, at 84: 'Passage is harmless if it does not

84. 85. 86. 87.

88. 89.

affect the fundamental interests of the underlying State, or those of its nationals, and if it is carried out in strict compliance with the enacted regulations.' (own translation). Ibid., p. 84; Nicolas Mateesco-Matte, Traite de droit aerien-aeronautique, supra n. 2, at 141-142. Emphasis added. Antonio Ambrosini, Souverainete et trafic aerien international - De la Convention de Paris de 1919 a celle de Montreux de 1936, 28 Revue Aeronautique Internationale 133 (1938). Article 38 of the 1919 Paris Convention: 'In case of war, the provisions of the present Convention shall not affect the freedom of action of the contracting States either as belligerents or as neutrals.' Nicolas Mateesco-Matte, Traite de droit aerien-aeronautique, supra n. 2, at 137-138. Daniel Goedhuis, Air Sovereignty Concept and United States Influence on its Future Development, 22 Journal of Air Law and Commerce 209, 212 (1955).

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exercise of first freedom rights to strict conditions. Indeed, Article 15, paragraph 1, read as follows: Every aircraft of a contracting State has the right to cross the air space of another State without landing. In this case it shall follow the route fixed by the State over which the flight takes place. However, for reasons of general security it will be obliged to land if ordered to do so by means of the signals provided in Annex D. Article 15, paragraph 3, additionally provided that 'The establishment of international airways shall be subject to the consent of the States flown over.' 90 In other words, the overflight of scheduled commercial flights was dependent on prior authorisation and the overflown States could still prohibit access to certain areas, establish the routes to be followed by the aircraft of the other contracting parties and order them to land. Hence: the 'freedom of innocent passage' without prior permission accorded by Article 2 had apparently been so much restricted by Article 15 that states had construed this to mean that the privilege should apply only to the aircraft of other contracting parties making either special flights (pleasure or touring purposes) or the occasional non-scheduled flight of a commercial nature. 91 Due to these heavy limitations, the right of innocent passage was almost entirely deprived of practical relevance for commercial air transportation92 and, thus, 'the victory for national control of the airspace was complete' .93 While far more limited in practice than the sole reading of Article 2 would ' suggest, the right of innocent passage nevertheless prefigured solutions adopted later on within the 'Chicago Convention System'. Not only did it confirm that access to the airspace of a foreign country can only be granted by way of agreement between States, but it also showed that 'freedoms of the air' could be exchanged multilaterally. The fact that this right is endowed in the 1919 Paris Convention itself, while being subject to a separate agreement under Chicago, 94 is highly irrelevant as the number of contracting parties is to be taken into account. The 1944 Chicago Convention sought, and achieved, universalism, but some States were opposed to exchange multilaterally the first two 'freedoms of the air'. Thus, having a separate agreement helped reach a consensus on the core principles of public aviation law while allowing the majority of States to grant each other the first two, 'technical', freedoms. The situation in Paris was radically different: it counted twentysix signatories, and, when it entered into force on 11 July 1922, only fourteen States

90. This paragraph was amended by a Protocol of 15 June 1929 and incorporated in paragraph 4,

91. 92. 93. 94.

which read as follows: 'Every contracting State may make conditional on its prior authorization the establishment of international airways and the creation and operation of regular international air navigation lines, with or without landing, on its territory.' Sheila F. Macbrayne, The Right oflnrwcent Passage, 2 McGill Law Journal 271, 275 (1954-1955). Nicolas Mateesco-Matte, Traite de droit aerien-aeronautique, supra n. 2, at 143. John Cobb Cooper, The Right to Fly, supra n. 47, at 33. International Air Services Transit Agreement, signed at Chicago on 7 December 1944.

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had ratified it. 95 Hence, the different legal vehicles chosen to allow inoffensive overflight only reflect distinct political considerations as per acceptability and ratification and do not reveal a difference in nature between the rights granted in the 1919 Paris Convention and the 1944 International Air Services Transit Agreement. {3]

Equal Treatment of National and Foreign Aircraft

Article 2 of the 1919 Paris Convention provided that 'Regulations made by a contracting State as to the admission over its territory of the aircraft of the other contracting States shall be applied without distinction of nationality.' This Article - drawing on the principle that aircraft could only be granted one 'nationality' on the basis of their registration 96 - is, thus, very similar to actual Article 11 of the 1944 Chicago Convention as they share the same philosophy. From a systematic reading of both Conventions, it is clear that States are free to refuse access to their airspace, but no distinction on the basis of nationality is admissible once this access has been granted by way of an international agreement. This is perfectly in line with the principle of equality of States under international law: The term 'equality,' designating an essential characteristic of the States as subjects of international law, seems at first glance to signify that all States have the same duties and the same rights. This statement, however, is obviously not correct for the duties and rights established by international treaties constitute a great diversity among States. Consequently, the statement must be restricted to general customary international law. But even according to general customary international law, all the States have not the same duties and rights. (... ) Thus the principle of legal equality, if nothing but the empty principle of legality, is compatible with any actual inequality. Equality is the principle that under the same conditions States have the same duties and the same rights. 97 Furthermore, bearing in mind that States would maybe try to implement indirect discrimination, Article 3 originally established that prohibited areas should be enforced against both national and foreign aircraft, even if a later Protocol introduced in 1929 the possibility to allow, on an exceptional basis, flights operated by national aircraft. Putting aside this exception, it can be concluded that the non-discrimination principle laid down in the 1919 Paris Convention certainly influenced the drafters of the 1944 Chicago Convention, or at least reflected a clear consensus among the international community.

95. Lambertus Hendrik Slotemaker, Freedom of Passage for International Air Seruices, supra n. 24, at 22. In June 1936, only thirty States had ratified or adhered to the Convention: Argentina,

Australia, Belgium, Bulgaria, Canada, Chile, Czechoslovakia, Denmark, Finland, France, Greece, India, Iraq, Ireland, Italy, Japan, Norway, New Zealand, the Netherlands, Poland, Portugal, Romania, Siam, Spain, South Africa, Sweden, Switzerland, Great Britain, Uruguay and Yugoslavia. 96. Articles 6 to 8 of the 1919 Paris Convention. 97. Hans Kelsen, The Principle of Sovereign Equality of States as a Basis for International Organization, 53 Yale Law Journal 207, 208-209 (1944).

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§ 1. 03 [D]

[D]

Vincent Correia

The Creation of the ICAN

In spite of being mainly remembered for the right of innocent passage, the 1919 Paris Convention's major innovation is maybe to be found in its Article 34, which established the ICAN. 98 Not only did it create a permanent institution but also it entrusted it with essential missions to ensure the correct application of the Convention and its continuous adaptation. Among its duties, the ICAN was most notably in charge of: - receiving or making proposals to any of the Contracting States for the modification or amendment of the provisions of the Convention; - amending the provisions of Annexes A to G to the Convention; - notifying changes adopted; - collecting and circulating information concerning international air navigation. Furthermore, Article 37 of the 1919 Paris Convention provided that 'Disagreement relating to the technical regulations annexed to the present Convention, shall be settled by the division of the International Commission for Air Navigation by a majority of votes.' In other words, the ICAN was, as the Council of the International Civil Aviation Organization (ICAO) today, 99 entrusted with quasi-judicial functions, raising the same questions of blurring boundaries between legislative and judicial powers. 100 Hence, and irrespective of the specific institutional provisions, the 1919 Paris Convention again foreshadowed the system which was adopted in 1944 in Chicago: a Convention encompassing all the core legal requirements for international aviation, accompanied by technical annexes that can be modified by a permanent and specialised institution endowed with judicial functions. From a normative perspective, the ICAN could propose amendments to both the Convention itself and its Annexes, even if the modifications to the Convention could only become effective after their adoption by the Contracting States. Regarding the Annexes, the ICAN's composition 101 and the voting rules 102 indeed differed from what 98. See Anne Pignochet, L'organisme le plus evolue du droit international: la Commission intemationale de navigation aerienne (Paris: Editions Internationales, 1935). 99. Article 84 of the 1944 Chicago Convention. 100. See Joseph Kroell, La fonction judiciaire de la Commission Intemationale de Navigation Aerienne, 14 Revue aeronautique internationale 444 (1934). 101. The original 1919 Paris Convention 'breathed the spirit of the Versailles Treaty by regulating the membership of the Commission, that is to say, of the organ established to direct the work of the CINA, so that the United States of America, Great Britain, France, Italy and Japan should have two votes and all the other States one vote' (Alfred Wegerdt, Germany and the Aerial Navigation Convention at Paris, October 13, 1919, supra n. 81, at 3). It was decided, in June 1923, to allow one vote to each State, but the United States of America (in spite of not being a contracting party while being a signatory), Great Britain, France, Italy and Japan still had two representatives each. 102. The original text of Article 34 of the 1919 Paris Convention provided that 'Any modification of the provisions of any one of the Annexes may be made by the International Commission for Air Navigation when such modification shall have been approved by three-fourths of the total possible votes which could be cast if all the States were represented: this majority must, moreover, include at least three of the five following States: the United States of America, the British Empire, France, Italy, Japan.' This Article was later modified and prescribed that 'Any modification of the provisions of any one of the Annexes may be made by the International

20

chapter 1: The Legacy of the 1919 Paris Convention

§l.03[D]

in force today, but they strikingly recall the powers of the Council of ICA0. 103 This ~ncludes the entry into effect of the modifications. Once they were notified to the ~ontracting parties, they were binding upon them and did not require any further 104 ratification or approbation by the States, having the same effect as the Convention itself.1os This very special feature raised concerns regarding the sovereignty of the . 5

Contracting States:

106

On a pretendu qu'elle avait des pouvoirs exageres et trap etendus, qu'elle etait un veritable parlement international ayant le pouvoir de prendre des decisions qui s'imposaient a tous Ies Etats contractants et qui, par la, portait atteinte a Ieur 107 souverainete. Indeed, no provision in the 1919 Paris Convention allowed for a State to 'notify a difference' as is permitted today under Article 38 of the 1944 Chicago Convention: Si, dans !'ensemble, la Convention de Chicago a repris les normes de la Convention de Paris, ii taut cependant constater que, sur certains points, cette derniere avait davantage de possibilites pour le developpement de la reglementation administrative intemationale unifiee, puisqu'elle obligeait les membres adherents a se soumettre a toutes modifications des annexes techniques decidees a la majorite des trois quarts. Cette conception tres large dut etre abandonnee !ors de ]'elaboration de la Convention de Chicago, vraisemblablement pour respecter les dispositions constitutionnelles de certains Etats. 108 However, notwithstanding the criticisms regarding the sovereignty of the States, there is no denying that an Organisation such as ICAN - or ICAO nowadays - is necessary to ensure the safe and orderly development of international aviation. Minor limitations to the sovereignty of States are a fair price to be paid to secure the uniformity of technical rules and hence to guarantee global safety. It is indeed at the heart of the internationalism, which always accompanied the creation and evolution of

103. 104.

105. 106.

107.

108.

Commission for Air Navigation when such modification shall have been approved by three-fourths of the total votes of the States represented at the Session and two-thirds of the total possible votes which could be cast if all the states were represented. Such modification shall become effective from the time when it shall have been notified by the International Commission for Air Navigation to all the contracting States.' Articles 54, I) and 90 of the 1944 Chicago Convention. With the exception of the modification of Annex H on customs. Article 39 of the 1919 Paris Convention; See Clement L. Bouve, Regulation of Intemational Air Navigation under the Paris Convention, 6 Journal of Air Law and Commerce 299 (1935). Andre Henry-Coiiannier, Examen de principe de la convention intemationale portant reglementation de la navigation aerienne du 13 octobre 1919, supra n. 2, at 17-18. Marcel Le Goff, Manuel de droit aerien -Droit Public, supra n. 43, at 103: 'It has been argued that it had exaggerated and over-extended powers, that it was a real international parliament with the power to take decisions binding upon all Contracting States and thereby undermining their sovereignty.' (own translation). Otto Riese & Jean Lacour, Precis de droit aerien (Paris: LGDJ, 1951) 67: 'While the Chicago Convention as a whole has taken up the standards of the Paris Convention, it must be noted that, in some respects, the latter had more powers for the development of unified international administrative regulations, since it obliged contracting parties to submit to any modifications to the technical annexes decided by a three-quarters majority. This very broad conception had to be abandoned during the elaboration of the Chicago Convention, presumably to respect the constitutional provisions of certain States.' (own translation).

21

§1.04

aviation law. In this respect, the main legacy of the Paris Convention is without a doubt the institutionalisation of the international co-operation and the original solution8' adopted to ensure the continuous actualisation of aviation law that are still in fore mutatis mutandis today. In other words: Avec ses attributions etendues, la CINA a ete pendant vingt ans, entre les deux guerres, le plus puissant et le plus efficace des organismes internationaux. (... ) Riche d'experience et d'archives, elle se fond dans !'organisation nouvelle de Montreal, elle y survivra par ses methodes. Elle a ete pour ainsi dire transportee toute entiere dans !'organisation de Montreal. Les annexes aussi ont ete respectees. II n'y a qu'une modification, c'est en ce qui concerne l'etendue de ses pouvoirs. !ls sont beaucoup plus vastes que ceux d'autrefois. 109

§1.04

CONCLUSIONS

Far from being perfect, the 1919 Paris Convention nevertheless constituted a groundbreaking achievement towards the establishment of a sound international regime for aviation: Par les principes juridiques fondamentaux dont elle s'inspire, par son caractere complet et precis (meme dans les details regles avec une singuliere experience dans ses annexes techniques), par la creation d'un organisme central (la Commission lnternationale de Navigation Aerienne - CINA) qui preside a son application et a son adaptation aux exigences croissantes du trafic aerien, la Convention de Paris merite d'etre qualifiee comme un document reunissant la competence, l' equilibre et la sagesse. llO The 1919 Paris Convention was indeed guided by a philosophy of balance between the rights of the sovereign States and the needs of international civil aviation. By granting the right of innocent passage to all the contracting parties, it demonstrated that sovereignty, on the one hand, and development of international traffic, on the other, are not incompatible at all. This contribution to both past and present aviation laws should not be understated, as it opened the way to the exchange of traffic rights on both a bilateral and a multilateral basis. Hence, the drafters of the 1919 Paris Convention adopted a much more realistic approach than that defended by the

109. Marcel Le Goff, Manuel de droit aerien - Droit Public, supra n. 43, at 106: 'With its extensive powers, the CINA was for twenty years, between the two wars, the most powerful and the most effective international organization. (... ) Rich in experience and archives, it blends into the new organization of Montreal, it will survive there by its methods. It was so to speak transported in its entirety to the Montreal organization. The annexes have also been respected. There is only one change, the scope of its powers. This is much larger than that of yesteryear.' (own translation).

110. Antonio Ambrosini, Souverainete et trafic aerien international - De la Convention de Paris de 1919 acelle deMontreux de 1936, supra n. 86, at 131: 'By the fundamental legal principles from which it is inspired, by its completeness and accuracy (even in the details set with a singular experience in its technical annexes), by the creation of a central body (the International Commission for Air Navigation - CINA), which governs its implementation and its adaptation to the increasing demands of air traffic, the Paris Convention deserves to be described as a document combining competence, balance and wisdom.' (own translation).

22

Chapter 1: The Legacy of the 1919 Paris Convention

§1.04

academics in the early twentieth century, and this spirit of equilibrium still remains strong today. At the institutional level, the 1944 Chicago Convention benefited as well from the early efforts of its predecessor to conciliate the sovereignty of the States and the uniformity of technical rules. The ICAN indeed faced criticisms, but its mere existence significantly contributed to the internationalisation of aviation law, which was fortunately deepened by the creation of ICAO. In this respect, even if the sovereignty debate is still present in contemporary aviation legal thinking, most notably regarding market access and liberalisation, we must praise the wisdom of the international community for sticking to international co-operation. Without proper uniformity, on the basis of dialogue and expertise within ICAO, the entire aviation system could fall to pieces very quickly. Drawn by experts knowing the needs of air transport and its undeniable contribution to the better understanding among nations, the 1919 Paris Convention demonstrated that sovereignty should never stand in the way when it comes to co-operating on essential legal and technical requirements. As a compromise text, it appeared indeed too conservative to the tenants of airspace freedom, as well as too ambitious regarding the powers of ICAN. History nevertheless showed that this was the sole practicable path, as this middle line was the only one allowing conciliation of divergent interests. As demonstrated by the longevity of its successor, which celebrates its 75th anniversary this year, aviation needs a powerful international organisation. Along with essential legal principles still in force, the 1919 Paris Convention laid the first stone of institutionalised co-operation. Its drafters would be proud to see that its legacy survived until today, thanks to the Chicago Convention.

23

CHAPTER

2

Aerial Sovereignty: From Paris 1919, Through Chicago 1944, to Today Peter Haanappel

This tribute to the Paris and Chicago Conventions on their respectively lOOth and 75th birthdays concentrates on the notion of sovereignty in the air, or in other words aerial sovereignty, a notion which is still central today in the law and regulation of aerial navigation, civil and other aviation. First, a search will be made of some proper terms and definitions. Following will be a brief comparison of the Paris and Chicago Conventions in regard to sovereignty, after which a number of selected topics will be addressed under three main headings: horizontal sovereignty, vertical sovereignty and current issues. There will be a general conclusion as to whether the Chicago Convention ought to be amended on aerial sovereignty.

§2.01

A WORKABLE DEFINITION OF NATIONAL AERIAL SOVEREIGNTY

Key to Article 1 of the Paris Convention and Articles 1 and 2 of the Chicago Convention are the words State/Power, sovereignty, airspace/air space and territory. In short, the basic rule in both Conventions is that each State has complete and exclusive sovereignty over the airspace above its territory. Let us go to the words State and Power first. The word Power is only used in the Paris Convention and perhaps not properly so. It is essentially synonymous with State, which is also used: in the French text 'Puissance' and 'Etat'. 'Power' seems to have been used principally in the nineteenth and twentieth centuries, often with adjectives such as 'Big', 'Medium', 'Small', 'Allied'. Make no mistake: sovereignty in the Paris Convention applies to all States, not a selected group of them. The notion of sovereignty and especially State sovereignty crystallized, after long debates, in the seventeenth century. In maritime law, freedom of the high seas,

25

§2.02 freedom to sail them became the dominant doctrine. The famous debates between Grotius (mare liberum, 1609) and Selden (mare clausum, 1652) were won by the former. Concurrently, the Treaties of Westphalia of 1648 established what would become the concept of the modern State, characterized by sovereignty, itself comprising three elements: a territory, a population and control thereof (legislative, administrative, judicial). Some add a fourth element to sovereignty: a State's power to enter into international treaties, an element which is useful in the context of aerospace law because it is so much characterized by treaties. Airspace (Chicago) and air space (Paris) are both grammatically correct. This text uses both of them. An often-used synonym for State sovereignty is national sovereignty which is linguistically more attractive, as long as one does not equate State and nation. It is the State that is characterized by sovereignty, not a nation. A State may harbour various nations. It may harbour only one, and then one may speak of a Nation State. Territory, in air law and the two Conventions that we discuss, comprises not only the land mass but also the territorial waters of each sovereign State. Territorial waters will return as a subject in this short text a little bit later. Hence, as this text does, one may speak of (national) aerial sovereignty: sovereignty of a State over the airspace above its territory and territorial waters, but the absence of national sovereignty, thus freedom of flight over the high seas.

§2.02

AERIAL SOVEREIGNTY IN THE PARIS AND CHICAGO CONVENTIONS

The principles of Article 1 of the Paris Convention and Articles 1 and 2 of the Chicago Convention are identical: complete and exclusive sovereignty in national airspace and over territorial waters adjacent thereto as a matter of customary international law. Otherwise, the Paris and Chicago Conventions come to this in different ways. In principle the Paris Convention applies to all aerial navigation, although severely limited by Chapter VII of the Convention, dealing with State aircraft. The Chicago Convention deals only with civil aviation with an attempt to legally separate civil from State aircraft in Article 3. 1 The Paris Convention is special in that it deals with the freedom of innocent passage in Article 2, whereas the Chicago Convention has no comparable provision. The right of innocent passage in peacetime inures to all Paris Contracting States, to all aircraft, it seems, but only for overflight, not landing. An unresolved question is whether Article 2 had any practical significance next to Article 15 of Paris. The provisions of Chapter IV of the Paris Convention on Admission to Air Navigation Above Foreign Territory in practice seem to apply to civil aircraft which the Paris Convention calls private aircraft. Article 15 is of capital importance and grants overflight rights, what we now call the first freedom. The rest of the Article was somewhat ambiguous, to say the least, and was amended in the year 1929 to make it

1. For the texts of the (original) Paris and Chicago Conventions, see Annexes X and Y to this Book.

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Chapter 2: Sovereignty: Paris 1919, Chicago 1944, until Today

§2.03[A]

lear that the establishment of international airways and air navigation lines would be cubject to the prior authorization of the State concerned: 2 a step perhaps already ;awards Articles 5 and 6 of Chicago, and this upon the insistence mainly of European on-belligerent States that had not participated in the original Paris Convention ~afting and were only willing to adhere, once important amendments were made. Otherwise, the Paris Convention would not yet contain the important distinction of Articles 5, 6 and 96 of Chicago between scheduled services and non-scheduled flights. Maybe one can say that, in 1919, certainly as opposed to 1929, the distinction between air navigation and air transport, so characteristic for the later Chicago Convention, had not yet fully developed - indeed, international air transport seems to find its essential year of origin precisely in 1919 - and that this fact explains the unresolved question of the relationship between Articles 2 and 15 of the Paris Convention. §2.03

[A]

HORIZONTAL SOVEREIGNTY

Land and Territorial Waters

Horizontally, a State's sovereign airspace, where it has full jurisdiction, comprises the State's land mass and the territorial waters adjacent thereto, but not out into the high seas, where there is no national jurisdiction. It is a general observation that, not so much during the reign of the Paris Convention, but certainly during the reign of its successor Chicago Convention, there has been a tendency to expand territorial waters or quasi-territorial waters, through various national or international initiatives. By expansion is meant expansion which is relevant to international air law. Historically and still today, it seems, in customary international law where there has been no State choice of width of territorial waters, the width of territorial waters is 3 nautical miles out of the baseline of the coastal State. Normally, nowadays, however, since Article 3 of the United Nations Convention on the Law of the Sea (UNCLOS) of 1984 has come into force, States may extend their territorial waters individually, up to 12 nautical miles, which most States have done. 3 In addition to that, some twenty States of the world, among which the largest ones, have found, since the 1950s, that 3 to 12 miles does not give the coastal State enough security protection from approaching aircraft. Hence, those States have enacted Air Defence Identification Zones (ADIZ), often extending hundreds of miles into the high seas (sometimes also covering land areas), in which approaching aircraft must identify themselves to coastal aeronautical authorities (irrespective of existing

2. For the text of the Paris Convention, as amended in the year 1929, see JALC, Vol. 1, Issue 1, Article 6, 1930, Convention Relating to the Regulation of Aerial Navigation, pp. 94-104. 3. The nomenclature of the UN CLOS is somewhat complicated: Convention on the Law of the Sea, 1O December 1982, 1833 U.N.T.S. 397, closed for signature 31December1984; Enacted as: entered into force as the United Nations Convention on the Law of the Seas on 1 November 1994. Hereinafter 'the UNCLOS'.

27

§2.03[B] Flight Information Regions (FIRs) under the auspices of Chicago's International Civil Aviation Organization (ICAO)). ADIZs are, it is submitted, not recognized by either maritime or air law. So, what is their status in law, if any? Actually, they are on the margin of unilateral illegality, They cannot be regarded as an exercise, even anticipatory, of the right of self-defence under Article 5 of the Charter of the United Nations; they may be analogous to contiguous (enforcement) zones under the UNCLOS (12-24 miles out of the coast) but geographically much broader than them; they have not reached enough communis opinio, it seems, so as to qualify them as legal under customary international law. Sometimes probably desirable from a security point of view, the status of ADIZ in international air law might be in need of regularization, legalization by multilateral agreement. This point will come back in our concluding remarks.

[B]

Antarctica

Antarctica is land. It is actually a continent. It is not permanently inhabited. Many nations have an interest in it, whether for fishing, scientific research or otherwise. Seven nations have formal territorial sovereignty claims to Antarctica. Parts of the continent have not been claimed. There is little flying to, from and over Antarctica at the present time. Most of it is to sustain traffic to/from scientific and other bases and these days also for tourism. There are no major international airlines crossing Antarctica. Might non-stop regular air services be developed between points in let us say New Zealand and points in Argentina/Chile, they might transit over Antarctica, an· safety conditions, therefore, having been fulfilled. The legal regime pertaining to Antarctica, like the one for outer space (see section 2.04 below), was prepared by political and legal developments surrounding the International Geophysical Year 1957-1958. The Antarctic Treaty was signed on 1 December 1959. 4 Currently, there are fifty-three Member States, among which the States having sovereignty claims over parts of Antarctica, all of which were frozen during the lifetime of the Treaty and its many supplementary agreements and arrangements, together forming the Antarctic Treaty System. 5 There is no sovereign air space over Antarctica, at least not more than a nascent one. Article VII (4) of the Antarctic Treaty gives a rather thin legal basis to flight over Antarctica: it permits aerial observations to be carried out at any time over any or all areas of Antarctica by any Contracting Parties. In the middle of the century, in 2049, the current ban on Antarctic mineral mining may become renegotiable. A number of nations, including giants China and India, may be interested in such mining. This might uproot the whole system and also call for firmer international arrangements for flights into, out and over Antarctica. Will Antarctic flight become akin to flight in national sovereign airspace(s), or to flight in

4. US Department of State Publ., in force 23 June 1961. 5. Idem.

28

Chapter 2: Sovereignty: Paris 1919, Chicago 1944, until Today

§2.03[C]

•. ternational airspace, like over the high seas or the North Pole areas, or somewhere in Jn 2 between those extremes.

[CJ

Aerial Sovereignty Resulting from the UNCLOS

Articles 2-3 of the UN CLOS deal with the territorial sea or, in other words, the territorial waters, as we have called them before, and these articles definitely offer a potential :horizontal extension of a State's national airspace from 3 to maximum 12 miles out of the coast. This, of course, is not much for a flying aircraft and was at the basis, where applicable, of the extension in various ADIZs, as mentioned before. Articles 17-18 of the UNCLOS establish a right of innocent passage through the territorial sea, but only in favour of ships, not aircraft. That means that aerial sovereignty over the territorial waters, the territorial sea of a State is as absolute as over land. The Chicago Convention has an entirely different type of multilateral passage, transit rights and potential traffic rights, and that is embodied in Article 5 of the Convention, dealing with non-scheduled international flights. 6 Article 33 of the UNCLOS deals with the contiguous zone and, as already mentioned in the context of ADIZs, it could by analogy extend to aircraft in the contiguous zone from 12 to 24 miles from the coast. Part III of the UNCLOS, as of Article 34, concerns straits used for international navigation, from one part of the high seas, or from one Exclusive Economic Zone (EEZ) to another such part or Zone, via the territorial sea(s) of one or more coastal State(s). Freedom of flight over international straits was never explicitly part of the Paris or Chicago Conventions. Now it is. Articles 38 and 39 of the UNCLOS are perfectly clear in that they grant freedom of flight over international straits (transit passage) to aircraft, both civil and State. Article 39, paragraph 3, obliges civil aircraft, in doing so, to follow the Rules of the Air of ICA0. 7 To this writer, it seems that the extension of passage rights through international straits from ships to aircraft makes little sense. Ships in passage are easily identifiable in the sea lanes but three-dimensional aircraft in airspace over the straits far less. It is, by the way, noteworthy that Turkey, the 'master' of the Bosporus and the Dardanelles (between the Black Sea and the Mediterranean), is not a Party to the UNCLOS, but is still a Party to the Convention Regarding the Regime of Straits of Montreux of July 1936. 8 By contrast, notwithstanding their territorial disputes, on the Western side of the

6. Such transit/traffic right does not extend to scheduled air services (Article 6 of the Chicago Convention), but a transit right for scheduled international air services is contained in an additional agreement, reached in Chicago in 1944: the International Air Seroices Transit Agreement (!ASTA), !CAO Doc. 2187. Currently 193 States are Parties to the Chicago Convention, of which also 133 to the !ASTA. 7. Article 12 of the Chicago Convention, !CAO Doc. 2187, and Annex 2 to the Convention. 8. The Montreux Convention is a regional convention in scope (Turkish passage) and ratification (number of neighbouring and other specifically interested States). Article 23 assures passage for civil aircraft over the Turkish straits. It is to be kept in mind that, in 1936, flight by civil aircraft (airlines) was still fairly rare and at relatively low altitude and speed.

29

§2.04

Mediterranean, in the Strait of Gibraltar, Morocco, Spain and the United Kingdom (UK) (for Gibraltar) are all Parties to the UNCLOS. Next, Part IV of the UNCLOS, beginning with Article 46, deals with so-called archipelagic States, of which the largest one is no doubt Indonesia. Pursuant to Article 49, archipelagic States may have a much larger horizontal airspace than the territorial waters of the individual composing islands would justify. Article 53(1) allows archipelagic States to create sea lanes and air routes thereover for passage purposes. In the case of Indonesia such lanes and air routes are rather vague, since aerial passage rights, in practice, are intertwined with bilateral traffic and transit rights, the whole being compounded by the fact that Indonesia is not a Party to the IASTA, discussed above in footnote 6. Finally, Article 53(12) of the UNCLOS adds to the complexity by providing that, where States have not created sea lanes/air routes in the sense of Article 53(1), other States have the right to passage through lanes and routes 'normally used for international navigation'. Finally, for our purposes, there are Parts V and VI of the UNCLOS, dealing respectively with EEZs and Continental Shelves, both important for the exploration and exploitation of natural resources. Articles 58, 78, juncto 87, leave the normal rights of overflight of all aircraft of all States, borrowed from the freedom of the high seas, . unimpeded. Article 60 in Part Von artificial islands will be dealt with separately below. In sum, the UNCLOS enlarges the horizontal national aerial sovereignty of States in matters of territorial waters, straits used for international navigation and archipelagic States. The continuing unimpeded freedom of flight for all aircraft of all States over EEZs and Continental Shelves, quite acceptable as that may have been in 1984/1994, when the UNCLOS came into being, is now beginning to raise some eyebrows in 'have' as opposed to 'have-not' States, as the following will show. First,. however, the subject of vertical sovereignty in the air. §2.04

VERTICAL SOVEREIGNTY: THE UPPER LIMITS OF NATIONAL AERIAL SOVEREIGNTY IN VIEW OF EMERGING OUTER SPACE ACTIVITIES

Until about the time of the International Geophysical Year 19 5 7-19 58, mentioned above in the context of Antarctica, interest in vertical boundaries of sovereign airspace was limited. Activities of States and their citizens were limited to useable airspace, not higher than the height of flight by aircraft. The International Geophysical Year, however, brought closer the realization of rocket and satellite technology, at much higher heights than the flight of aircraft. Now, immediately, we must distinguish here between private rights in airspace and public rights in air space and, for that matter, in the new environment which we call outer space. Private rights form part of civil property law; public rights form part of the doctrine of State sovereignty. Dating back to late Roman times, in private (air) law, there was and is a maxim, which reads in Latin, in part: 'cujus est solum, ejus est ad coelum', or 'he who owns the land, owns it up to heaven'. But what is meant is private useable airspace, building

30

Chapter 2: Sovereignty: Paris 1919, Chicago 1944, until Today

§2.0S[A]

heights, airspace over roads, dividing walls, bridges, canals, overhanging trees and the like. It is not the right to fly, of which little was going on in Roman and post-Roman .fU:nes. The right to fly and the power of the State to regulate that, as eventually laid down in the Paris and Chicago Conventions, probably goes back to a German 9 dissertation in the late seventeenth century. But what happened as a follow-up to the International Geophysical Year was that States, in their Outer Space Treaty of 1967, 10 declared the new outer space 'free for exploration and use by all States' (Article I) and 'not subject to national appropriation by claim of sovereignty ... ' (Article II). They did this, however, without fixing a vertical boundary between air space, characterized by national sovereignty, and outer space, without such sovereignty: a sovereignty regime versus a freedom regime. 11 Slowly, the realization would come that the boundary would probably lie somewhere between 90 and 110 kilometres above the surface of the earth, either according to some functional approach, physical approach, arbitrary approach or a combination thereof. The literature in this area is abundant. There is still no consensus as to whether a boundary is really necessary, but for some emerging activities, the question is becoming more urgent. Such are space tourism (small), satellite launching and hypersonic transportation. Much, it seems, depends on the nature of the vehicles (rocket or engine) used, the nature of the activity (space or earth oriented) and the height at which the activity occurs. Some right of transit to and/or from, or through national airspaces to outer space or near outer space, where the relevant activities take place, seems desirable but has still not (firmly) materialized in public international law. It is essentially the safety of the activity involved that, it is submitted, would require the transit right. §2.05

CURRENT ISSUES

The following are but a selection of possible issues.

[A]

New Islands

Above, in briefly discussing the UNCLOS and the EEZ, note was taken of the fact that there is some 'uneasiness' or 'unhappiness' about unfettered freedom of flight over EEZs, understandable if one takes into consideration the economic value of EEZ activities and the value of (overflight) information pertaining thereto. Most of the concrete action has been going on in the South China Sea. UNCLOS distinguishes artificial islands (Article 60 of the UN CLOS within the Part on the EEZ) and the 'regime of' islands (Part VIII of the UNCLOS with a single article, Article 121). Much has been written on airports in the sea, but little has been 9. See P.P.C. Haanappel, The Law and Policy of Air Space and Outer Space (Kluwer Law International, 2003), at pp. 1-3. 10. In full: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 610 UNTS 205. 11. See P.P.C. Haanappel, supra footnote 9, at pp. 23-26.

31

§2.0S[B] accomplished. Kansai International Airport is the largest airport built on an artifici island, but the island is located within Osaka Bay and the territorial waters of Jap Neither the Netherlands nor the UK has managed to build new airports in the No Sea, outside territorial waters. Significant for air law and sovereignty is the following. Airports on artifici islands in the EEZ do not form part of the sovereign land mass of the building coast State. That State, nevertheless, has exclusive jurisdiction over the airport island an may create a safety zone around it. The island does not have its own territorial sea. is submitted that this means that the relevant coastal State may have to adjust its bilateral air services/transport agreements so as to make them applicable to flights to/from or via the airport on an artificial island. · Islands in the sense of Part VIII of the UNCLOS are a different matter. They are 'naturally' formed areas of land. The question is what the distinction is between 'artificial' and 'natural'. To what extent can the hand of mankind help with artificial means to create a 'naturally formed area of land'? Islands in the sense of Part VIII of UNCLOS seem to be a more hospitable legal environment for airports in the sea than artificial islands in the sense of Article 60. The former are usually part of the sovereign mainland and have their own territorial sea, EEZ and continental shelf. Thus, no complications in the area of bilateral air services/transport agreements. Some clarification on the distinction between artificial and natural islands in the sense of sovereignty in international air law seems to be required. This question w addressed, for instance, in the more general territorial island issues case between the Philippines and China, decided by the Permanent Court of Arbitration in the South China Sea Arbitration, in its decision of 12 July 2016. 12 Probably not a dictum, the Court nevertheless noted that it is the original natural, maritime status of the island, before its change by human means, that counts. 13

[BJ

Claims to Sovereignty in Polar Regions

In the last paragraph of the section of this chapter, dealing with Antarctica, reference was made to the possible need, in the second half of this century, for a new regulatory regime for flight in Antarctic air space. The need in the North Polar regime (which. 'Polar' refers to here) for a new or amended regime is perhaps more urgent because there is so much more air traffic in the area. Antarctica and the North Pole are physically different in that the former is land and the latter largely frozen high seas (the North Pole and the Arctic Ocean). With climate change, the boundaries between land and ice are dramatically changing in the region. New minerals are being discovered. New straits are opened up. There are, it seems, increased national security considerations. Russia lays claim, as its, to the large underwater Lomonusov Ridge. Canada has proclaimed a very large, amended ADIZ, in 2018/2019, stretching as far North as Ellesmere Island.

12. Case number 2013-19. 13. Ibid., paragraph 305.

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Chapter 2: Sovereignty: Paris 1919, Chicago 1944, until Today

§2.0S[C]

All in all, there are eight coastal States with territorial claims in the North Polar ;'.~ctic,

from West to East: US (Alaska), Canada, Denmark (in the right of Greenland), Norway, Sweden, Finland and Russia. China is trying to carve out its own · Arctic position, but, geographically, it is not an Arctic State. It seems that all ICAO Member States have an interest in that their aircraft and airlines retain or gain access to that part of the North Polar area which is essentially airspace over the high seas and over the aforementioned coastal States. Of those coastal States, the two largest ones, Canada and Russia, are not Parties to IASTA. 14 Russia never was and Canada has not been since the year 1987 /88. Ideally, all these coastal States should be members of IASTA. As a second best, these States could perhaps agree multilaterally that the Polar Arctic should be a free flight zone for all aircraft registered in ICAO Member States and flying in first and/or second freedom 15 and that perhaps at a latitude North of about the 70th parallel North. ,!~eland,

[C]

Relationships Between Oceanic FIRs and National Aerial Sovereignty

A few words about the limits of national aerial sovereignty, in part as a word of caution. Whereas there have certainly been horizontal extensions, as the foregoing has shown, and vertical extensions, if one takes into consideration the low altitude of flying aircraft in 1919, as compared with now, vertically, however, there remains the unresolved question of the boundary between air space and outer space; and, horizontally, one should take the following into account: extensions or not, essentially national aerial sovereignty remains limited to sovereignty over land and over territorial waters. Let oceanic ICAO FIRs serve as an example. 16 Some FIRs only cover land, others land and (high) seas, some only the (high) seas. Together they cover the whole world. In this section of the chapter, we mean by 'oceanic' high seas only, or land and (high) seas. They have in common that civil aircraft over the high seas must follow the Rules of the Air of Annex 2 to the Chicago Convention. 17 An FIR is by no way an extension of national aerial sovereignty. Therefore, unless there is a bilateral or multilateral agreement to the contrary, oceanic airspace may be used freely by all civil aircraft (provided they comply with the Rules of the Air) and all State aircraft, including military aircraft. Notwithstanding the fact that Article 88 of the UNCLOS reserves the high seas for peaceful purposes (like Antarctica and outer space are so reserved by their own treaties), that does not mean that the high seas are demilitarized. The UNCLOS, for instance, has provisions on piracy and the immunity of warships. Similarly, international air law allows certain forms of aerial warfare over the high seas. 18 That an FIR is no extension of national aerial sovereignty was also borne out by the conflict in 2017 between Qatar and Bahrain, then sharing a single FIR (Bahrain),

14. 15. 16. 17. 18.

For IASTA, see supra footnote 6. That is overflight and stops for technical purposes. ICAO FIR as defined above in 3 A. Cf. footnote 7 and text thereto. See N. Ronzitti & G. Venturini (Eds), The Law of Air Warfare (Contemporary Issues) (Eleven International Publishing, 2006), a passim.

33

§2.06

and certain of their respective friends and foes in the Gulf and elsewhere in the Middle East. It is submitted that the way in which Qatar was limited in its access to the high seas through its own shared FIR went beyond the permitted use of national aeri sovereignty outside land and territorial seas. §2.06

CONCLUDING REMARKS

There seems to be no need to amend the Chicago Convention for the basic nation aerial sovereignty rules that this text has reviewed. Amendments to Chicago shoul fulfil a global need, and there seems to be none. On top of that, amendments require complicated rules at the preparatory level, the adoption on the diplomatic level, and at ratification. The only seeming exceptio might be Article 5 of the Chicago Convention on non-scheduled flights, mentione earlier in this chapter. The article is actually a multilateral waiver of sovereignty in one specific area of activity in international air space, namely non-scheduled (charter) flights. As early as the 1950s, the ICAO Council had studied the question, 19 but had not recommended an amendment to Article 5. Even today, ICAO Member States seem perfectly able to live with the situation, especially now that the commercial practice of international civil aviation relies less and less on non-scheduled flights and more an more on scheduled low-cost flights or services. 20 This does not mean that there should be no changes in the area of national aeri sovereignty, either regional or topical, but they can be less ambitious and formal th changes to the Chicago Convention itself. Taken from this text are the following: - ADIZs seem to need a more solid legal basis than they have now, in the areas of size, competencies and enforcement. - The Antarctic Treaty needs a more solid legal basis for the right to overfly Antarctica than is currently provided for in Article VII(4) of the Treaty. Given new activities in (near) outer space and the absence of a binding legal boundary between air space and outer space, there should be a formal right of transit for aircraft, respectively, spacecraft (space objects) to and from (near) outer space, for safety purposes. New thought on the distinction between artificial islands and (natural) islands needs to be given in view of the establishment of airports on the high seas; and North Pole coastal States should either all adhere to IASTA or create a free· flight zone in the far Northern Polar area. The preceding five proposals are without prejudice to other critical comments or observations elsewhere in the body of the text of this short chapter.

19. !CAO Doc. 7278-C/841, 10 May 1952. 20. This last subject goes beyond the scope of this chapter, but there is abundant literature on it.

34

CHAPTER

3

.sovereignty as a Basic Concept of International Law and a Core Principle of Air Law Stephan Hobe

The international air law regime is characterised by the principle of sovereignty. The following chapter will describe the development of this principle under general international law and international aviation law. It will demonstrate its current global importance and highlight problematic areas with regard to the closure of airspace and measures adopted in cases of so-called war risk zones. These cases will finally allow an assessment of sovereignty in international civil aviation.

§3.01

THE DEVELOPMENT OF THE PRINCIPLE OF SOVEREIGNTY

Sovereignty as a legal principle began to govern international relations and international law after the end of the Thirty Years' War in 1618. 1 Before that, the important French philosopher Jean Bodin (1529-1596) had started to develop the idea that, for the purposes of peace within a specific territory, it would be ideal for people to select an emperor. This emperor would govern and have the power to determine the acts needing to be undertaken within the territory and with regard to warfare, being independent of man-made law (legibus solutus). 2 The emperor would also be the reigning sovereign. This idea was further promoted in the peace treaties of Munster and

1. Description by Stephan Ho be, Einfiihmng in das Volkerrecht (Introduction to Public International Law) 36-39 (lOth ed., Ti.ibingen: A. Francke Verlag, 2014). 2. See Jean Bodin, Les Six Livres de la Republique (1576).

35

§3.01

Osnabri.ick of 1648,3 ending the Thirty Years' War in Europe and shaping the mode 'Westphalian' international system of 1648. The concept of more or less absolute sovereignty dominated in the seventee and eighteenth centuries but has ever since undergone significant challenges. The French Revolution, and the unsuccessful attempt to abandon the French monarchy in favour of the people's governance according to the motto of 'liberte, egalite et fratemite', certainly represented the greatest challenge. 4 · Throughout the nineteenth century, attempts to replace absolute monarchi with constitutional monarchies, that is constitutions not yet drafted by the people b granted by the monarch, became more evident. As is well known, this era finally and ultimately ended after the First World War. 5 From a conceptual perspective, Jean Bodin and other theorists of sovereignty, such as John Locke and Thomas Hobbes, already constantly pointed out that sovereignty has three sides: (1) One dimension is the power to protect the territory against foreign enemies. 6

(2) A second dimension contains the power and authority to strengthen the monopoly of all legislative force applied within the territory. (3) A third dimension is the duty to prohibit anyone to fight on the territory (including the airspace) for the purpose of protection against all kinds of. dangers. Be it out of a theological reasoning, that is, the emperor as alter ego of God, as argued by Jean Bodin,7 or be it in a contractual argumentation made by, for instance, Thomas Hobbes, 8 or, finally, via Johannes Althusius, 9 John Locke saw sovereignty as having a 'responsibility dimension' because the 'supreme power' would guarantee peace among the citizens. 10 Therefore, already in earlier times, sovereignty has shown a responsibility dimension, which may require, under certain circumstances, the government to act. 11 It is the duty of the sovereign to protect the citizens against each·

3. The two peace treaties concluded in the Westphalian cities of Osnabriick and Miinster, respectively on 15 May and 24 October 1648, are considered two cornerstone documents for the· establishment of the modern international legal and political systems. The two treaties, which de' facto terminated the Thirty Years' War, are shaped by the concept of Westphalian sovereignty.. 4. The French translation for 'liberty, equality and fraternity', which stands as the main motto of the French Revolution. This famous expression was first used in 1790 by Maximilien Robespierre during his speech 'Discours sur I 'organisation des gardes nationales' ('On the organization of the National Guard'). 5. First World War (1914-1918). 6. See inter alia Thomas Hobbes, Leviathan (London, 1651). 7. See Jean Bodin, Les Six Livres de la Republique, passim. 8. Thomas Hobbes, Leviathan, Second Part, Ch. XXI (1651). 9. Johannes Althusius, De Politica (1603), passim. 10. John Locke, Two Treatises of Government, 1689, Second Book, paragraphs 3, 89, 131, 135, 158, 159. 11. See inter alia Andreas Paulus, Die internationale Gemeinschaft im Volkerrecht, Miinchen 252 et seq. (2001); Thomas Kleinlein, Konstitutionalisierung im Volkerrecht, Heidelberg 9 et seq.

36

~'f){chapter 3: Sovereignty as a Basic Concept of International Law

§3.02

·· '; other and against foreign enemies; hence, the responsibility dimension of sovereignty ~~·the corollary to the warfare dimension. ~3.02

SOVEREIGNTY IN RELATION TO COMMERCIAL AVIATION

The development of the principle of sovereignty in international aviation began in the t\ventieth century after the Wright brothers, in 1903, had demonstrated that flying :could become a reality and a means of transportation. 12 However, aerial sovereignty is only an explicit expression of the general principle of sovereignty under international law.

In this context, a fundamental doctrinal discussion was initiated, whether airspace - which was in any case considered to be part of the territory of the State should become subject to the sovereignty of the subjacent State or should become open for the free circulation of airplanes. In his famous treatise 'Le domaine aerien et le regime juridique des aerostats', the French international jurist Paul Fauchille (1858-1926) developed the theory of the freedom of the air ('L'air est libre'), arguing mainly on the impossibility of establishing sovereignty over the air. 13 This opinion was opposed by the British lawyer John Westlake (1828-1913), according to whom airspace was the natural prolongation of a State's territory into the air. 14 This dispute determined the debate at the first international conference on civil aviation in Paris in 1910, which was attended by eighteen States. Although the majority of these countries tended towards the sovereignty approach, in light of the high peak of imperialism in Europe at the time, no final decision, in terms of codification of the principle, was taken at the 1910 Paris Conference. 15 A final decision was taken, however, nine years later at the second international conference on civil aviation that also took place in Paris in 1919, immediately after the First World War. 16 The fact that this conference took place in Paris was not a coincidence. Rather, previous negotiations with Germany, which, according to Article

12. 13.

14.

15. 16.

(2012); Christian Tomuschat, Ungleichheiten und Grenzen der Globalisierung, in: Jiirgen Schwarze (ed.), Globalisierung und Entstaatliclmng des Rechts 21, 35 et seq. (Baden Baden: Mohr Siebeck, 2008). The first sustained, controlled, powered, heavier-than-air manned flight was carried out by the Wright brothers (Orville and Wilbur) on 17 December 1903 in North Carolina, United States (US). Paul Fauchille, 'Le Domaine Aerien et le Regime Juridique des Aerostats', 8 Revue generale de droit international public 414 (1901). The British jurist John Westlake was opposed to Fauchille's approach. Although he envisaged the sovereignty of a State above its soil, Westlake affirmed that such sovereignty would be limited by 'a right of inoffensive passage for balloons and other aerial machines and for communications by wireless telegraphy'. John Westlake, Regime des Aerostats et de la Telegraphie sans fil, in 21 Annuaire de l'Institut de Droit International 293, 299 (1906). Conference intemationale de navigation aerienne, Paris 28 May- 28 June 1910. See for a detailed analysis, John C. Cooper, The International Air Navigation Conference, Paris 1910, in 19(1) Journal of Air Law and Commerce 127, 143 (1952). Convention Portant Reglementation de la Navigation Aerierme (Convention Relating to the Regulation of Aerial Navigation), adopted on 13October1919, 11L.N.T.S.173, entered into force on 11 July 1922.

37

§3.02 231 of the Treaty of Versailles, 17 was the only guilty nation of the First World War, h established the fundamental withdrawal of the German aviation fleet and, th triggered the idea of combining this overarching Peace Treaty with the first fundam tal Convention on International Civil Aviation. Interestingly, the years after the p· World War witnessed a rapid development of commercial international, and domest aviation. For example, due to the heavy destruction of the German railway in the p· World War, on 5 February 1919, the first commercial flight took place delivering goo to Berlin. Article I of the 1919 Paris Convention declares with astonishing openness that th contracting parties have 'recognised' the exclusive sovereignty of States over their airspace. This shows that aerial sovereignty was already in 1919 considered possessing customary international law status. 18 Moreover, a right to 'innocent pa. sage' was granted to other countries regarding their own airspace, 19 but no freedoms of overflight and landing for commercial purposes were provided for. · Such a static approach was subsequently confirmed in the Convention on International Civil Aviation, adopted on 7 December 1944, henceforth also referred to as the Chicago Convention, which is considered as the Magna Carta of internation civil aviation. 20 However, the Chicago Convention failed in providing a global frame work for the economic regulation of air transport. Being primarily concerned wi questions of safety, the Convention did not establish an international multilater forum for, for instance, the exchange of traffic rights, a pricing regime or establishment of capacity clauses. The provision ex Article 1 of the Chicago Convention reaffirming the cardin principle according to which 'states have complete and exclusive sovereignty over th airspace above their territory' 21 finds one of its main corollaries in Article 6, whic subjects the operation of international air services to the discretionary' authorisation or permission' of States. As a result, national airspace is de jure closed for foreign aircraft and their operators. 22 The privileges to overfly and land in another State's territory for non-traffic purposes were only guaranteed as a consequence of the two ancillary accords to the

17. Treaty of Versailles (1919). 18. Customary international law, along with general principles of law and treaties, is considered a primary source of international law. Custom comprises of two fundamental elements, namely, State practice and opinio juris sive necessitatis. While the latter relates to the belief by a State that a certain action or practice constitutes a legal obligation (subjective element), the former is an indication that a certain action or practice is followed by States in a common, consistent and concordant manner. See inter alia Stephan Hobe, Einfiihrung in das Vi:ilkerrecht (Introduction to Public International Law), supra n. 1, 195 with further references. The central role of custom is acknowledged by Article 38 of the Statute of the International Court of Justice. See James Crawford, Brownlie's Principles of Public International Law 23, 27 (Oxford: Oxford University Press, 2012). 19. Article II of the Paris Convention. 20. Convention on International Civil Aviation, adopted on 7 December 1944, 15 U.N.T.S. 295, entered into force on 4 April 194 7. 21. Article 1 of the Chicago Convention. 22. See Pablo Mendes de Leon, Introduction to Air Law 45 (lOth ed., Kluwer Law International, 2017).

38

< .~{Jhapter 3: Sovereignty as a Basic Concept of International Law

§3.02

vv./

. . ·~~~~hicago convention, which go under the name of International Air Transport Agrees:z?z. ent, also known as IATA, and International Air Services Transit Agreement, also · ··:k_own as IASTA or Transit Agreement. In particular, while the former attempted, with y,• .• ,,.:.ery little success, to establish a mechanism for the exchange of commercial traffic '''.) .fights, the latter, which only provides for the multilateral exchange of the First and S.econd Freedoms of the air, represents a rather successful legal instrument, having attained 133 ratifications. 23 This dichotomy with respect to the number of ratifications the two said Agreements stems from the reluctant attitude of States to surrender their sovereign rights, which has undoubtedly marked the development and evolution of the air transport industry since its early inception. In sum, the principle of sovereignty over the airspace should not and did not hinder the beginning commercial phase of aviation for which overflight rights are essential. Thus, the international legal regime designed at Chicago determined a peculiar evolution in the way sovereign States have negotiated and granted traffic rights. Although bilateralism is in 'no way ordained by the Chicago Convention', 24 which is, on the contrary, silent on how authorisations and permissions ex Article 6 should be negotiated and exchanged, States, by virtue of their indissoluble sovereignty, have traditionally granted rights on a bilateral basis by means of air services agreements. Following a period of rigidly regulated air services agreements, characterised by the type of Bermuda I (1947) 25 and the even more restrictive Bermuda II (of 1977) agreements, 26 since the 1990s so-called open skies agreements 27 essentially leave designation, capacity, tariffs, frequencies, etc. to the carriers' determination, without foreseeing any government intervention. Yet, one restrictive clause characterises the dominance of the traditional sovereignty approach and renders aviation, even in the twenty-first century, a special industry. In line with the refined terminology employed by the IATA and the IASTA, most bilateral air services agreements still contain a clause on 'ownership and control' 28 which grants the respective partner State the right to refuse permission to carriers if 'substantial ownership and effective control' are not held by the designating

· of

23. As of April 2019. 24. Brian F. Havel & Gabriel S. Sanchez, The Principles and Practices of International Aviation Law 75 (Cambridge University Press, 2014). 25. Agreements of the Bermuda I type were named after the sample bilateral agreement concluded between the US and the United Kingdom in 1946, as to which see Air Services Agreement Between the US and the United Kingdom, 11February1946, 60 Stat. 1499, T.I.A.S. No. 1507 (Bermuda I Agreement). 26. The Bermuda I Agreement was replaced in 1977 by a more restrictive agreement, also known as the Bermuda II Agreement: Agreement Concerning Air Services Between the US the UK, 1977, 28 UNTS 5367 (Bermuda II Agreement). 27. The first 'open skies' agreement was concluded in 1992 between the Netherlands and the US. The agreement is considered to be a pioneer accord in the field of aviation relations. The 'open skies' agreement concluded between the European Union (EU) and the US is a significant example of the liberalisation of air services, still on a bilateral basis, as it grants unlimited air services' opportunities between two of the major air transport markets worldwide. 28. Notably, some States, including, for example, Chile, Hong Kong, Ecuador, Costa Rica and other Latin American States have adopted more flexible and innovative criteria in the context of ownership and control. These include principal place of business and regulatory control centre to establish the nationality of airlines.

39

§3.03

Stephan Robe

State or nationals of that State. The rationale for the so-called nationality rule directly stems from the principle of sovereignty. On the one hand, sovereignty is translated into· a mercantilist and protectionist approach, which has proved to be typical of commercial aviation. States justified the 'substantial ownership and effective control' require.: ments in light of internal security and defence-related reasons, whereas they maintain such requirements now to protect labour arrangements at 'their' airlines. As an example, the partner State may refuse admission to the designated airline of the treaty partner if at least 75 % of voting shares, in the case of the US, is not in the hands of nationals of the US; the EU sets this limit at 50% plus one share. 29 If 'substantial ownership' pertains to an easily ascertainable parameter, being usually expressed in percentage terms, the 'effective control' criterion has a subtle and complex significance and can only be tested by way of an attentive scrutiny of factual conditions, including, for instance, the identity of the members of the board of directors or of those who take crucial decisions affecting the management of the airline. Another expression of the principle of sovereignty is enshrined in Article 7 of the Chicago Convention granting the right of all States to refuse so-called cabotage rights (Article 7), 30 that is the right to prohibit air carriers from undertaking air transportation within the boundaries of the respective State. §3.03

SOVEREIGNTY IN RELATION TO THE CONTROL OF NATIONAL AIRSPACE

Article 9(a) of the Chicago Convention confers States the right to restrict or prohibit overflight over certain areas of their territories. This provision finds its roots in the principle of sovereignty, which underpins the spirit of the Convention, and constitutes one of its purest expressions. However, the legitimate exercise of the right under Article 9(a) to establish prohibited areas is subordinated to the existence of particular circumstances and the ·• fulfilment of certain formal requirements. Quoting the text of the provision, prohibited areas may only be established for: (a) reasons of military necessity; or (b) reasons of public safety. Additionally, such 'no-fly zones' shall not have a discriminatory nature, be proportionate and respect temporal as well as geographical requisites. Also, if a State intends to prohibit flights from entering and flying through its airspace, it shall do so in a manner that 'does not interfere unnecessarily with air navigation'. This indicates that

29. See Article 5 of the open skies agreement between the EU and the US. 30. In aviation, cabotage refers to the carriage of traffic between two points, which are both located within the territory of one State, by a foreign carrier. See inter alia Bin Cheng, The Law of International Air Transport (London: Oceania, 1962); Pablo Mendes de Leon, Cabotage in Air Transport Regulation (Dordrecht: Martin us Nijhoff Publishers, 1992).

40

;{·chapter 3: Sovereignty as a Basic Concept of International Law

§3.04

hereas safety is a prime concern, the exercise of the sovereignty principle for the

•/

~otection of airspace must be proportionate to the anticipated danger. 31

.{.~

Examples of circumstances in which States have, legitimately or not, applied the .•: right to establish prohibited areas are numerous. As recently as February 2019, for ·instance, following political and military tensions with India, Pakistan closed its entire airspace to all foreign aircraft. At the time of writing, the prohibition is still in force. Furthermore, in June 2017, a dispute arising in the Arabic peninsula was brought to .global attention whereby Saudi Arabia, the United Arab Emirates, Bahrain and Egypt declared immediate closure of their airspace to all Qatari-registered aircraft, after launching accusations concerning activities allegedly supporting terrorist groups. Another example of the dynamic perception of sovereignty is expressed in the legitimate reaction of States against perceived violations of the sovereignty through civil aviation of other States. Article 3bis, introduced after the shooting-down of a Boeing 747 of Korean Airlines in the airspace of the Soviet Union in 1983, constitutes a reiteration of sovereignty insofar as it recognises the customary right of every contracting State to 'require the landing ... of a civil aircraft flying above its territory ... ' if there are reasonable grounds to suspect that an aircraft is being used for purposes inconsistent with the aim of the Chicago Convention. 32 Again, the long and rather clumsy provision of Article 3bis is an expression of the conception that a proportionate reaction by the infringed State against a grave danger or a severe violation shall be allowed in order to restore sovereignty in the airspace. As a result, this indicates that, although the principle of complete sovereignty is recognised in the fundamental introductory Article 1 of the Chicago Convention, States have exercised their sovereign powers in a dynamic fashion. Rather, other interests such as the lives of passengers or the freedom of overflight are worthwhile considerations when interpreting the meaning of sovereignty as exemplified by the tragedy of MH17, which is also linked to the question on the sovereign powers of a State in its national airspace, as to which see the next section. §3.04

CONFLICT ZONES: THE INSTANCE OF MH17

The shooting-down of Malaysian Airlines MHl 7 over the territory of Eastern Ukraine in 2014, 33 for instance, has brought to light a problematic area relating to aerial sovereignty and closure of airspace. The downing of MHl 7 - supposedly through the actions of the Russian military - occurred at a time of intensive warfare in Ukraine, caused by the Russian aggression that went so far as to invade and illegally occupy Crimea. As a

31. Proportionality is a well-regarded guiding principle under general public international law. For instance, proportionality is a necessary and customary element for the adoption of countermeasures, according to the ILC Draft Articles on State Responsibility for Internationally Wrongful Acts. 32. Article 3bis of the Chicago Convention. 33. See inter alia Stefan A. Kaiser, Legal Consideration about the Loss of Malaysia Airlines Flight MHl 7 in Eastem Ukraine, in 40(2) Air & Space Law 107, 121 (2015); Norbert Knittlmayer, Intemational Obligation to Close the Air Space over Conflict Zones: The Example of MHl 7, in 65(1) Zeitschrift fur Luft- und Weltraumrecht 44, 66 (2016).

41

§3.04 consequence, Ukraine had closed its airspace up to flight level 260 and, then, up flight level 320, that is about 9,750 metres above sea level. The Ukrainian authoriti asserted that they had not been informed of any further danger in the higher regions airspace - MHl 7 was travelling at around 10,000 metres. Thus, they claimed to ha taken all measures that were necessary. Obviously, this was not enough and led to death of all 298 persons (283 passengers and 15 crew members) on board the airplan In the Final Report of the Dutch Safety Board, which was investigating t accident, it was clearly stated that, generally, States guarantee the safety of the airs pa above their territory. 34 In cases of armed conflicts in the territory such a guarante could however hardly be given. 35 Therefore, the Dutch Safety Board recommended t amend the Chicago Convention to the extent that States have a duty to close their airspace in the interest of public safety or military necessity, and relevant Standards and Recommended Practices adopted by International Civil Aviation Organization, 80 , as to impede in the future events similar to the tragic loss of MHl 7. The Board also recommended: - the timely closure of the airspace or restriction of the use of airspace; - to provide information to third parties as quickly as possible in the event of an armed conflict; and - coordination between civil and military air navigation service providers · order to allow the State the fulfilment of its responsibility for the safety of civi aviation in its airspace. 36 But, of course, these are only non-binding recommendations. Other States Parties to the Chicago Convention did not want to accept the proposal pertaining to the imposition of a duty to close national airspace under the above conditions because, indeed, they preferred to keep their sovereign rights in this respect. Notwithstanding scarce State practice in relation to voluntary closure of airspace in cases of imminent danger, the loss of MH17 has made evident a new phenomenon of dangers that due to new technological development now also affects airspace. These dangers engage the protection dimension of national sovereignty over airspace. The notions of international State responsibility and liability play a principal role in the discussion of the MHl 7 tragedy. They are also supported by international law cases and European treaties as illustrated by the following. In the Corfu Channel case in 1949, the International Court of Justice (ICJ) described sovereignty as a cornerstone for the responsibility and liability of States including a duty to warn other States of dangers stemming from their territory. 37 As a consequence, it is increasingly recognised - and, according to this author, required that States have a duty to protect lives and health of passengers at least if there is prior knowledge by a State about imminent danger within its territory.

34. Dutch Safety Board (DSB), Crash of Malaysia Airlines Flight MH17, October 2015, Final Report, 172.

35. DSB Report, supra n. 34, 263. 36. DSB Report, supra n. 34, 264. 37. ICJ Reports 1949, pp. 4, 19.

42

l:lapter 3: sovereignty as a Basic Concept of International Law

§3.05

With regard to Article 2 of the European Convention on Human Rights on life otection, the European Court of Human Rights (ECtHR) has developed a positive r ty to protect lives by enacting useful legislation and 'in certain well-defined cumstances' to enact protection measures for the treatment of persons. 38 As to ed conflict, the ECtHR has held that 'in situations of armed conflict States are under obligation to protect the lives of those not or no longer engaged in hostilities.' 39 It at least disputable whether also a preventive duty to protect lives can be derived from ~?'$.'.[~'European legislation and jurisprudence. ·,'.~;,' This evidences that sovereignty has a 'protection' side. At least in cases in which '',states are aware of imminent danger for aircraft passengers in transit, the principle of . sovereignty requires not only to immediately warn overflying airlines but also, and !Ilore importantly, to close the airspace. In the view of the present author, similar situations may show some limitations and peculiarities of State sovereignty, as described above. In particular, given the highly international and sensitive nature of air transport, State sovereignty may also serve as a guarantee for safe overflight by foreign aircraft. In other words, should extraordinary circumstances arise, entailing situations of warfare, States shall not only be logically entitled to a sovereign right to immediately close their airspace but also may be even considered under a legal obligation to do so, as suggested by the Dutch government after the MHl 7 tragedy. Notwithstanding the term 'may' used in Article 9 and which implies some degree of discretion for States in applying such provision, a broader teleological interpretation of the Chicago Convention, based on the absolute primacy of safety, could underpin the above conclusion. §3.05

CONCLUDING PERSPECTIVES

State sovereignty is still a crucial cornerstone of international aviation law. In particular, as concerns protection against commercial intrusion, the ownership and control clause still represents a sign of protection and an evident expression of State sovereignty. However, a certain fragmentation with regard to a weighing against other rights and interests, typically incorporated in the proportionality principle, shines through with regard to the declaration of prohibited areas and the reaction against aerial intervention. Finally, and most interestingly, the growing existence of conflict zones highlights the protective component of the sovereignty principle because it requires, or at least ought to require, States to warn or even to directly protect national airspace by closing it. This new and dynamic dimension is in line with the increasing emphasis of general international law on the interests of the individuals, most impressively characterised by the steeple career of human rights. As a consequence, this author argues that that

38. ECHR, 87/1997/871, 1087. 39. ECHR, 16064/90, marginal note 185.

43

§3.05

Stephan Bobe

States have a duty to protect the lives and well-being of passengers at least if there is prior knowledge of a State about imminent danger within its sovereign airspace. In the author's opinion, it is quite questionable how long the old traditional concept of aerial sovereignty will prevail in an area of globalisation, based upon opeQ markets, economic benefit, freedom for the individual, companies and the environ, ment. Sovereignty is indeed fluidly and rapidly adapting to new technological developments as well as political, safety and security-related and commercial scenarios.

44

CHAPTER

4

The Development of Civil Aviation and Its Impact on Sovereignty AnnaKonert

International air law is based on the principle that each State has complete and exclusive jurisdiction over its airspace. This principle is defined in international conventions as sovereignty. This chapter is designed to demonstrate that the interpretation and application of the principle of the sovereignty of the State has changed over time, pursuant to the development of aviation.

§4.01

INTRODUCTION

The sovereignty of the State over its airspace, 1 including its territory and territorial waters which do not include the Exclusive Economic Zones,2 is a general principle of international law, universally recognized not only by the Member States of the Convention on international civil aviation, signed at Chicago on 7 December 1944 (Chicago Convention), or the Paris Convention Convention Relating to the Regulation of Aerial Navigation, in the original text named Convention portant reglementation de la navigation aerienne, signed in Paris on 13 October 1919 (Paris Convention (1919)). The Chicago Convention confirms this principle in its Article 1:

1. See, Marek Zylicz, Prawo lotnicze mie:.dzynarodowe, europejskie i krajowe (Air Law - Interna-

tional, European and National) 34 (Warsaw, 2011). 2. See, Pablo Mendes de Leon & Erik Jaap Molenaar, Still a Mile Too Far? Intemational Law Implications of the Location of an Airport in the Sea, 14 Leiden Journal of International Law 234-245 (2001).

45

§4.02

'The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.' 3 The unity of the legal status of airspace and land territory including territorial waters was justified by the theory of 'inseparability of adhesion' .4 Jean Bodin defined sovereignty as the supreme power unlimited by law, 'Su

erenitas est summa legibusque soluta potestas'. The question to be answered in t regard is whether air sovereignty has remained complete and exclusive since 1944. §4.02

LIMITATIONS ON THE PRINCIPLE OF AIR SOVEREIGNTY IMPOSED BY THE ORIGINAL CHICAGO CONVENTION

The fact that the sovereignty of the State over its airspace is considered complete an exclusive does not mean that it should be absolute and free from any legal restrictio (legibus soluta). 5 It may be limited by common law, international agreements and other instruments and factors. While establishing the principle of complete and exclusive air sovereignty, the Chicago Convention imposes certain restrictions on the freedom of action of States in the field of international civil aviation. For example, Member States are responsible fo the organization of airports and air navigation facilities, for ensuring no discrimination of national and foreign aircraft operators, and for ensuring the enforce ment of air traffic safety within its territory. In addition Member States agreed t undertake: to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. That is why international Standards and Recommended Practices (SARPs) and procedures drawn up by the International Civil Aviation Organization can be amended. 6 This is especially pertinent for SARPs dealing with communications sys' terns and air navigation aids, including ground marking, the characteristics of airpo and landing areas, the rules of the air and air traffic control practices. Moreover, Article 6 of the Chicago Convention states that 'special permission'> must be granted for the operation of scheduled international air services, which is usually performed by bilateral Air Services Agreements (ASAs) between States. ASAs are designed to open national airspace for operators of air services coming from

3. For a discussion, see John Cobb Cooper, The Chicago Convention - A~er Twenty Years, 19 U. Miami L. Rev. 333 (1965). 4. In Polish doctrine, this theory was preached by Cezary Berezowski, Mi~dzynarodowe prawo lotnicze 5 (Warszawa, 1964). For other theories see: Joseph Kroell, Traite de droit international public aerien (Paris, 1934); John Coob Cooper, Explorations in Aerospace Law: Selected Essays (Montreal, 1968); Pablo Mendes de Leon, Introduction to Air Law 9 (lOth ed., Wolters Kluwer International, 2017). 5. See, Zylicz, supra n. 1, at 35. 6. See, Article 37 of the Chicago Convention (1944).

46

apter 4: Impact of the Evolution of Civil Aviation on Sovereignty

§4.03

other State which is otherwise closed for such services,7 as to which see also section

.os. THE EVOLUTION OF THE CONCEPT OF SOVEREIGNTY

concept of the sovereignty of States in air law has experienced a genuine many years, after the adoption of the Chicago Convention, the concept prevailed in the doctrine of air law was that the power of the State was not limited the height above the ground as expressed in the maxim ad siderera ad astra. The extent of the sovereign power of States in national airspace was not limited in of height by international law. 9 However, that theory was suddenly affected in 1957 when States agreed to allow the flight of artificial satellites and other spacecraft through their airspace before reaching outer space. That theory was mitigated for two reasons. First, because no country protested against the passage of artificial satellites at the height of their trajectories and, second, before these spacecraft are in orbit or return from it, they sometimes fly through the airspace of foreign States at low altitudes. In this airspace, flights of foreign aircraft are limited while the transit of harmless artificial earth satellites has not been limited. No State protested against the flight of Sputnik (1957), and yet it flew through the domestic airspace of several States and momentarily also at a height at which the flights of civil aircraft were regulated. This silent acceptance can be understood as the recognition that the trajectory passes over the upper limit of territorial space or that the right of innocent passage of such craft was recognized without prejudging the upper boundaries.10 Said development can be seen as the creation of a new rule of international customary law, which does not mean that it should not be regulated by international treaty law. As far as classical air traffic in the lower parts of the atmosphere is concerned, the jurisdiction and domestic competencies of individual States have been affected by the creation of new forms of international air traffic control systems, for example the European Organisation for the Safety of Air Navigation, henceforth referred to as Eurocontrol or regional plans. Both within Eurocontrol and other regional systems, States adopted the practice of transferring their competencies in the field of air traffic management to the authorities of neighbouring States or established common authorities performing responsibilities in areas crossing State borders. For example, the Polish

::.'!c>voJi1Incm 8 For

7. 8. 9. 10.

Mendes de Leon supra n. 2, at 45. Peter Haanappel, The Transformation of Sovereignty in the Air, XX(6) Air & Space Law (1995). See Dean N. Reinhardt, The Vertical Limit of State Sovereignty, 72 J. Air L. & Com. 65 (2007). Marek Zylicz, Sur quelques problems de droit astronautique (extrait de la Revue Generale de droit International Public, nr 4) (1958). See also Myres S. McDougal & Leon S. Lipson, Perspectives for a Law of Outer Space (Faculty Scholarship Series Paper 2618, 1958); John A. Vosburgh, John, National Sovereignty and the Legal Status of Outer Space (Thesis, University of Arizona, 1969); Imre Anthony Csabafi, The Concept of State Jurisdiction in International Space Law (The Hague: Netherlands, 1971); Tare C. Brisibe, State Sovereignty and Aeronautical Public Correspondence by Satellite, 69(4) Journal of Air Law and Commerce (2004).

47

§4.04

Anna Konen

Air Navigation Service Provider (ANSP) PANSA operates services outside Poland, whereas foreign ANSPs can offer their services in Poland. The regulatory and institutional regime of the European Union (EU) has had a b" impact on the exercise of sovereign powers. Among other things, EU Member Stat must harmonize and unify their national legal systems and transfer functional compe tencies to supranational EU institutions, 11 as a result of which the exclusive sovereignty provided for in Article 1 of the Chicago Convention has been relaxed. 12 · §4.04

LIMITATION ON THE ENFORCEMENT OF SOVEREIGN AUTHORITY UNDER NEW TREATY OBLIGATIONS

Aerial sovereignty means, among other things, the exercise of enforcement powers with respect to foreign aircraft overflying a State's territory. First, we will analyse an example regarding the admission of foreign aircraft and carriers to the territory of another State. Although such operations are still conditional upon the consent of that given State, which may prohibit or limit such operations, the interference of the State with foreign aircraft performing flights over its territory has been limited as a consequence of the application of international aerial conventions The Convention on Offences and Certain Other Acts Committed on Board Airer concluded at Tokyo on 14 September 1963 (Tokyo Convention), provides forth creation of the jurisdiction of a State of the flag or another State with respect to aircra in flight. It limits, in strictly defined cases, the right to exercise territorial jurisdiction· a way that prevents the continuation of an aircraft's flight. For example, shortly before the conclusion of the Tokyo Convention, Professo Zylicz was on board a Swissair flight which flew over India. During this flight, the flight attendant collected all the alcoholic drinks, explaining that they were flying over the city of Bombay, in which prohibition of the use of alcoholic drinks applied. If the Tokyo Convention had already been in force, the Republic of India would not be permitted to exercise jurisdiction on board the aircraft. Another example of the limitations on the enforcement of sovereign authority was the drawing up, after the shooting down of Korean Air flight KALOO?, 13 of Article 3bis of the Chicago Convention (1944), which introduced the principle of the non-use· of weapons against civil aircraft in flight. 14 The goal was to find a balance between the safety of international civil aviation and the sovereign powers of States as a result of which a new Article 3bis was laid down. States recognize it as a rule of international law.

11. See, Christopher Nyholm Shawcross and Kenneth Macdonald Beaumont, Air Law (4th ed., London: Butterworths, 2002). 12. See, Alexander Engvers, The Principle of Sovereignty in the Air to What Extent Can It Be Upheld Against Aerial Intruders? 53 (Master Thesis, University of Lund, 2001). 13. See, Ghislaine Richard, KAL 007: The Legal Fallout, IX Annals of Air & Space Law (1984); Peter Martin, Destruction of Korean Air Lines Boeing 747 over Sea of Japan, 31August1983, IX(3) Air Law (1984). 14. See, Gerald F. Fitzgerald, The Use of Weapon Against Civil Aircraft-Amendment (Article 3 bis) to the Chicago Convention, 2(1) The Air and Space Lawyer (1984).

48

Chapter 4: Impact of the Evolution of Civil Aviation on Sovereignty

§4.05

The principle of the use of weapons in relation to civil aircraft was and is still an \ ··. nregulated issue. Some States, including Germany and Poland, have created provi~ons authorizing air defence to shoot down civil aircraft in specific cases. In Poland a 15 Ii.eW article was introduced in 2007. Article 122a states the following: If required by national security considerations and by air defense command, taking into account in particular information provided by air traffic services providers, it determines that civil aircraft are used for illegal activities, in particular as a means of terrorist attack from the air, this aircraft may be destroyed on terms specified in the provisions of the Act ... on the protection of the State border ...

These provisions have been challenged by the Polish Ombudsman as violating the Polish Constitution. The Polish Constitutional Tribunal assessed these provisions in the context of acts of international law regarding the protection of human rights. 16 However, there are additional comments regarding the violation of the rules of international aviation law in these provisions. 17 The United States of America (USA), which for a time pressed for the adoption of Article 3bis of the Chicago Convention (1944), finally did not ratify it. However, Poland and the then USSR, now the Russian Federation, ratified it, while some States, including the USA, had doubts about the adoption of this Article, and, hence, did not ratify this provision. These doubts were related to the fact that civil aircraft could be seized and used for criminal purposes by armed criminals threatening the areas over which they fly. 18 In other words, you can shoot at criminals in a car, but criminals in an airplane would enjoy immunity.

§4.05

THE IMP ACT OF GLOBALIZATION AND GENERAL WORLD TRENDS ON THE DEVELOPMENT OF THE PRINCIPLE OF SOVEREIGNTY

Economic regulation of air transport falls under the sovereignty of the State, or, in the case of the EU, under the powers of the EU in so far as the EU internal air transport market is concerned. 19 Apart from the special case of the EU, as to which see footnote 21, and other regional initiatives such as the regional market which is in the process of being established by the Association of South East Asian Nations, as to which see also below, progress is slow and limited in this area. As for now, the World Trade

15. Incorporated into the Aviation Law Act of 3 VII 2002; as to Polish Aviation Law, see also: Marek Zylicz (ed.), Aviation Law Commentary (Warsaw, 2016); Anna Konert, Air Carrier Liability under Polish Air Law 50 (2) Indian Journal of International Law (2010); Anna Konert & Piotr Kasprzyk, Amendments to the Aviation Law Act in 2015, 9(13) Yearbook of Antitrust and Regulatory Studies (2016). 16. Judgment of the Polish Constitutional Tribunal of 30 September 2008, K 44/07. 17. See, Marek Zylicz, Zestrzelenie cywilnego statku powietrznego jako delikt prawa mifuizynarodowego (Shhotong down of a civil aircraft as a tort of international law), 24(6) Paristwo I Prawo (2009). 18. Ibid. 19. See, EU Regulation 1008/2008 as amended on common mles for the operation of air services in the Community.

49

§4.05

Anna Konert

Organization (WTO)/General Agreement on Trade in Services (GATS) system is not applicable to the operation of international air services. The GATS regime was created in isolation from traditional aviation regulation based on territorial criteria. However, this regime has not yet been extended to the operation of air services. GATS, including its dispute settlement procedures, does not apply to measures affecting traffic rights, however granted, or services directly related to the exercise of traffic rights. It does apply to measures affecting aircraft repair and maintenance services, the selling and marketing of air transport services and computer reservation system (CRS, now Global Distribution Systems (GDS)) services. 20 All freedoms of the air are formulated according to territorial criteria. The exchange of the freedoms of the air is being gradually liberalized when it comes to the scope of the freedoms granted as well as the conditions for granting these freedoms to. foreign air carriers. The liberalization of air transport services is being discussed within the scope limited to regional, as in the EU, or bilateral, plurilateral, or multilateral open· skies-type agreements. In the globalization process, the liberalization of economic regulation of air transport is not very fast and has been implemented to a limited extent only. As stated, significant progress has been achieved in regional agreements, as exemplified by the well-developed system of EU regulation in this area. There remains, however, the problem of non-discrimination regarding the nationality of the air carriers. Nevertheless, the need to extend the principle of non-discrimination with respect to the operation of international air services, and the allowance of 'fair competition' in regional and national regulations, is increasingly recognized in the doctrine and policy of States. 21 The principle of non-discrimination in the treatment of national and foreign air carriers and the issue of competition between them remain to be settled. As the liberalization of access to the air transport market progresses, there is a need to create new rules for 'fair competition'. In a sense, the implementation of sovereign powers of States is limited as a result of the globalization of the economy and the increasing influence of large corporations and financial centres. Examples can be found in the use of freedoms granted to the carriers which are increasingly financed by third States and their nationals. Substantial foreign investments may be sensitive in light of clauses laid down in bilateral ASAs, which were, and still are, based on the recognition of the connection of carriers as operators of air services with the State whose citizens have the majority of ownership and effective control of the airline designating the carrier for the operation of the agreed air services. However, in regional regimes like that of the EU, this requirement has been relaxed as to which see the introduction of the concept of Community air carrier in order to allow for cross-border, but still intra-EU, investment in airlines operating international air services. As a corollary, the concept of the principal place of business

20. See Annex on Air Transport Services. https://ec.europa.eu/transparency/regdoc/rep/10102/2017 /EN/SWD-2017-182-Fl-EN· 21. See: MAIN-PART-I.PDP (access: 14 March 2019).

so

Chapter 4: Impact of the Evolution of Civil Aviation on Sovereignty

§4.06

for determining the nationality of airlines is attracting the attention of policymakers and legislators around the world. CONCLUSION

The classic definition of the sovereign power of States over its territorial airspace has evolved with the development of the global institutional environment and the operation of international air services. For instance, States are inclined to promote liberalization of air services operated by such airlines in a competitive environment while diminishing their economic control over airlines licensed by them. In these instances, security, safety and social policy considerations must be taken into account by these States, regional organizations and the airlines which are affected by such legislative and policy measures. One can observe today's development towards regionalism. However, at the same time States are also resisting regionalism, and the consequent sharing of national competencies making up sovereignty, as to which see the Brexit movement. Thus, sovereignty is also subject to a dynamic process. Although global conventions are still a powerful tool, there is an increasing number of bilateral, regional and plurilateral agreements covering the operation of air services, the management of air traffic and 'fair competition'. 22 While the concept of sovereignty is still alive, its application and interpretation have undergone changes limiting competencies of States. The evolution analysed in this chapter shows that aerial sovereignty is not as complete and exclusive as it was in 1944 when the Chicago Convention was drawn up. Despite the changes described above, the provisions of this convention are still relevant, valuable and significant. However, they will certainly require new legal acts to amend or supplement them, as illustrated by the developments described in this chapter.

22. Engvers, supra n. 12, at 53. See also Assad Kotaite, Is There a Lessening of State Sovereignty or a Real Will to Co-operate Globally?, XX(6) Air & Space Law (1995).

51

II The Impact of Sovereignty on the Administration of International Civil Aviation Through International and Regional Organizations

PART

';

HAPTER 5

he Impact of Sovereignty on the .~f}\dministration

of International Civil Aviation Through International and Regional Organizations: The Role of ICAO Jiefang Huang & Mathieu Vaugeois*

This chapter provides an overview of two mechanisms established or facilitated by the International Civil Aviation Organization (ICAO) in order to assist its Member States in promoting aviation safety while ensuring that State sovereignty is fully respected. These are the ICAO audit programmes as well as the policy relating to Regional Safety Oversight Organizations (RSOOs). As aviation safety has become the common concern of the international community, there is the need to implement the collective sovereign will of States to protect safety.

§5.01

INTRODUCTION

State sovereignty is a cornerstone of international air law. Article 1 of the Convention on Intemational Civil Aviation (Chicago Convention) 1 reaffirms this principle of customary international law previously promulgated in Article 1 of its predecessor, the Paris Convention of 1919,2 by declaring that 'every State has complete and exclusive * The views expressed in the present chapter are those of the authors and do not necessarily represent the views of ICAO or of any other organizations with which they are associated. The authors wish to thank Ms Katerina Havlikova, Intern, Legal Affairs and External Relations Bureau, ICAO, for her valuable assistance in the preparation of this chapter. 1. Convention on International Civil Aviation, Chicago, 7 December 1944. 2. Convention relating to the regulation of Aerial Navigation, signed at Paris, 13 October 1919. See Albert Roper, La Convention intemationale du 13 octobre 1919 portant reglementation de la navigation aerienne (Recueil Sirey: Paris, 1930).

55

§5.02 sovereignty over the airspace above its territory.' On the occasion of the 75 anniversary of the Chicago Convention, it is opportune and necessary to review ho this principle is applied in the twenty-first century and beyond, particularly in context of the role of ICAO, a global organization created by the same Convention. §5.02

STATE SOVEREIGNTY AND THE NEED FOR INTERNATIONAL COOPERATION

Every State is sovereign, in the sense that it has the supreme power to independen deal with its internal and external affairs. It is supreme in its territory and independe vis-a-vis other States. 3 In the context of international civil aviation, the principle sovereignty implies that a State may close its airspace for its national interest or to op it for international cooperation in civil aviation activities. If every State chose to clo its airspace entirely and to prohibit any foreign flight without any reason, internatio aviation would not have existed at all. To benefit from the modern mode of transpor tation, which ensures fast and convenient connectivity of its different parts of th: world, States must, again out of their sovereign will, cooperate with each other utilize the common resources in the blue sky. The Chicago Convention was conclude 'to promote that cooperation between nations and peoples upon which the peace of the world depends', and to avoid friction as well as abuse of civil aviation which may become 'a threat to the general security.' 4

Accordingly, the principle of sovereignty, as enshrined in the Chicago Conve tion, is accompanied by a number of corresponding responsibilities for States, partic larly in the field of safety. The Contracting States recognized at an early stage that th · freedom to exercise certain sovereign rights might be subject to various obligatio which are set out in the remaining ninety-five articles of the Chicago Convention. F example, under Article 12 of the Chicago Convention, States must ensure to keep th own regulations uniform to the greatest possible extent, with those established und the said Convention. Also, under the Convention, States must comply with require~ ments regarding the issuance or the validation of certificate of airworthiness (Article 31), the recognition of certificates and licences (Article 33) and compliance wi Standards and Recommended Practices (SARPs) (Articles 37 and 38). Moreover, the Chicago Convention also established ICAO, whose aims an objectives are to develop the principles and techniques of international air navigatio and to foster the planning and development of international air transport so as t among other things, insure the safe and orderly growth of international civil aviati throughout the world, ensure that the rights of Contracting States are fully respected and avoid discrimination between them. 5 Since its founding, ICAO has become the global forum for its Member States to perform balancing acts between the respect for 3. Gengsheng Zhou, International Law (in Chinese) 64 (first published in 1976, republished by Wuhan University Press, 2007). 4. The first and second paragraphs of the Preamble of the Chicago Convention. S. Article 44, (a), (f) and (g), Chicago Convention.

56

pter 5: Civil Aviation and Sovereignty: The Role of ICAO

§5.03

sovereignty and the need for international cooperation. Ensuring States' compliwith their international legal obligations has always been a challenging task for Organization. For this purpose, the Organization has over the years elaborated and ted creative and proactive ways enabling States to improve their compliance with obligations while ensuring that their sovereignty is fully respected. ICAO PROMOTING AVIATION SAFETY

e of the main objectives of the Chicago Convention, as promulgated in its preamble, the development of international civil aviation 'in a safe and orderly manner'. 6 This jective is also firmly established in Article 44 of the Convention which conveys, inter ;,:~~dlia, that one of the main aims and objectives of ICAO is to '[i]nsure the safe and '·';·otderly growth of international civil aviation throughout the world' as well as to '[m]eet the needs of the peoples of the world for safe, regular, efficient and economical ·au- transport' and to '[p]romote safety of flight in international air navigation'. 7 Consequently, aviation safety may be considered as raison d'etre of ICAO. Safety as a priority has been deeply rooted in the culture of international civil ; ;~Viation. Emanating from the central theme of 'safety first', the principle of State ~.:. stwereignty carries with it the fundamental premise that a State assumes safety , .• o}Tersight responsibility on civil aviation. In its Resolution A29-13 of 1992, the ICAO .lissembly reaffirmed the widely held position that each 'individual State's responsibilfor safety oversight is one of the tenets of the Convention. ' 8 Member States have the ultimate responsibility for safety oversight of international civil aviation within their territories and with respect to aircraft carrying their registration marks. 9 More specifically, this means that the responsibilities for continuing airworthiness of aircraft, the safe and efficient aircraft operations, the licensing and/or certification of personnel as well as the safe air traffic flow within the airspace, including the provision of air traffic services and an adequate aerodrome infrastructure, are vested with Member States. 10 This responsibility/ accountability of State has been defined in ICAO Guidance Material

\ty

as: The State of being responsible for an undertaking, person, thing or action and for which an organization or individual or both are liable to be called to account. An ICAO Contracting State and its respective civil aviation authority are ultimately responsible for the implementation of ICAO SARPs within their State. A State may either perform these obligations or, through mutual agreement, have another

6. InICAO terminology, a distinction is made between 'safety' and 'security'. The former is related to the operational safety of aircraft, whereas the latter means 'safeguarding civil aviation against acts of unlawful interference'. In the view of these authors, the term 'safe and orderly manner' also encompasses the requirements of 'security'. 7. Article 44, (a), (d) and (h), Chicago Convention. 8. Assembly Resolution A29-13, 'Improvement of Safety oversight', Assembly Resolutions in Force (as of 6 October 2016), Doc 10075, I-98. 9. Establishment and Management of a Regional Safety Oversight Organization, Safety Oversight Manual, Part B, Doc 9734, 2nd ed., 2011, p. v. 10. Ibid., 2-1, paragraph 2.1.1.

57

§5.03

Jiefang Huang & Mathieu Vauge 0 organization perform and be accountable for these functions; however, the State retains the responsibility under its duties of sovereignty. 11

The 37th and 39th Sessions of the Assembly further elaborated that Memb States 'collectively and individually' assume the responsibility for 'ensuring the safe of international civil aviation'. 12 It is the collective responsibility of States because safety of international civil aviation has become a common concern of the internatio community as a whole. As pointed out by Dr Kotaite, former President of the ICA Council: when safety standards and procedures are involved on international flights, one cannot even take the position that non-compliance by a sovereign State affects only the citizens of that State. Any other State that receives flights of aircraft registered in the non-complying State has every reason to be concerned about whether international standards and procedures are indeed being followed with respect to such aircraft and crews. 13 Indeed, the benefits of civil aviation are shared by the international community; its disastrous accidents are also jointly suffered by the same community. As it transcends the boundaries of territory and the limit of nationalities, the duty to protect aviation safety is arguably evolving into an obligation erga omnes. 14 One of the important roles of ICAO in promoting the aviation safety is carried out through th adoption of international SARPs with a view to achieving uniformity. Pursuant f Article 3 7 of the Chicago Convention: [e]ach contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. For this purpose, the said Convention provides that ICAO shall adopt and amend from time to time as may be necessary, international SARPs. Currently, there are around 12,000 SARPs which are contained in the form of technical annexes to the Chicago Convention. 15 Also, pursuant to Article 38 of the Convention, any State which

11. Ibid. , xii.

12. See Assembly Resolution A37-5, 'The Universal Safety Oversight Audit Programme (USOAP) continuous monitoring approach' and A39-14, 'Regional cooperation and assistance to resolve safety deficiencies, establishing priorities and setting measurable targets', Assembly Resolutions· in Force (as of 6 October 2016), Doc 10075, I-106 and I-104, respectively. 13. Assad Kotaite, Is There a Lessening of State Sovereignty or a Real Will to Co-operate Globally, 20(6) Air & Sp L 288, 289 (1995). 14. Obligations erga omnes were mentioned in the Barcelona Traction, Light and Power Company (Belgium v. Spain) Judgement, ICJ Reports (1970). See also, Jiefang Huang, Aviation Safety Through the Rule of Law, 157 et seq. (Wolters Kluwer, 2009). 15. There are currently nineteen Annexes to the Chicago Convention: Annex 1 (Personnel Licensing), Annex 2 (Rules of the Air), Annex 3 (Meteorological Service for International Air Navigation), Annex 4 (Aeronautical Charts), Annex 5 (Units of Measurement to be Used in Air and Ground Operations), Annex 6 (Operation of Aircraft), Annex 7 (Aircraft Nationality and Registration Marks), Annex 8 (Airworthiness of Aircraft), Annex 9 (Facilitation), Annex 10 (Aeronautical Telecommunications), Annex 11 (Air Traffic Services), Annex 12 (Search and Rescue), Annex 13 (Aircraft Accident and Incident Investigation), Annex 14 (Aerodromes)

58

apter 5: Civil Aviation and Sovereignty: The Role of ICAO

§5.03

ds it impracticable to comply with any such standard, or to bring its own regulations practices into full accord with any international standard after amendment of the ~tter, or which deems it necessary to adopt regulations or practices differing in any articular respect from those established by international standard, shall give imme·ate notice to ICAO. Consequently, under this machinery provided by the Chicago onvention, once a standard is adopted, it must be incorporated by States into their national legislation and regulations unless they filed a difference for that purpose with

JCAO. •· As observed by Dr Assad Kotaite, it shall be clear from the wording of the Chicago 1 ; ""·tonvention that 'it does not allow for a situation where States do not comply with sARPs and do not file any differences.' 16 In this sense, the Chicago Convention e~tablishes a specific requirement to the discretionary and sovereign choice of a State not to implement the international standard. It is a principle of public international law that States must fulfil in good faith their international legal obligations. This basic principle of good faith is stated, inter alia, in Article 2, paragraph 2, of the Charter of the United Nations 17 as well as in Article 26 of the Vienna Convention on the Law of Treaties. 18 Nevertheless, a number of Member States are still today failing to notify ICAO of the existing differences between the ;international standards and their national legislation or regulations. In fact, the compliance with, or the notification of differences from, international standards has been a subject of concern for a long period of time at ICAO. For example, already in its 1955 Report to the lOth Session of the Assembly (1956), the Council stated that reports from Contracting States on the action they are taking to give effect to SARPs are 'unfortunately still incomplete, although the situation is considerably better than a few years ago' .19 Moreover, the Executive Committee of the 29th Session of the Assembly (1992) even considered the possibility of amending the Chicago Convention in order 'to Impose an obligation for States to notify compliance with Annexes or amendments thereto'. 2° For this purpose, a working paper presented to the Plenary suggested that such amendment could be inserted as an additional paragraph to Article 38 or by way of adopting a new Article 38bis to the Chicago Convention. 21 This proposal was finally dismissed by the Executive Committee which instead favoured the possibility of

"

16. 17. 18. 19. 20. 21.

Annex 15 (Aeronautical Information Services), Annex 16 (Environmental Protection), Annex 17 (Security), Annex 18 (The Safe Transport of Dangerous Goods by Air) and Annex 19 (Safety Management). Kotaite, supra n. 13, 289. Charter of the United Nations and Statute of the International Court of Justice (San Francisco, 26 June 1945). Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. See also Michael Milde, Enforcement of Aviation Safety Standards Problems of Safety Oversight, 45(1) Zeitschrift fiir Luft-und Weltraumrecht 3, 15 (1996). ICAO Assembly Working Paper, 'Long-Term Policy on Annexes to the ICAO Convention Notification of Differences from Standards', A29-WP/86, 3, paragraph 4.1. Ibid., paragraph 4.4. Ibid.

59

§5.04[A]

Jiefang Huang & Mathieu Vaugeois

advancing work on this item through a Strategic Action Plan adopted at that Assem, bly.22 Subsequently, well-documented lack of States' compliance in fulfilling their obligations under Article 38 of the Chicago Convention led the Organization at the 3lst Session of the Assembly (1995) to make a similar observation to the one made in 195 it is at the present time impossible to indicate with any degree of accuracy or certainty what the state of implementation of regulatory Annex material really is, because a large number of Contracting States have not notified ICAO of their compliance with or difference to the Standards in the Annexes for some considerable time. 23 Consequently, given the low level of global awareness on the implementation 0 SARPs and in order to ensure that safety measures are in place and applied worldwide, the Organization began to look for ways to enhance the implementation of SARPs while fully respecting the sovereignty of each Contracting State. 24

§5.04 [A]

ICAO'S AUDIT FUNCTION

Universal Safety Oversight Audit Programme

The landmark decision to enhance the implementation of SARPs came at the 32nd~ Session of the Assembly. Based on the recommendation of the 1997 Conference of th Directors General of Civil Aviation (DGCA) on 'Global Strategy for Safety Oversight'; the Assembly decided to establish as of 1 January 1999 a Universal Safety Oversight Audit Programme (USOAP). 25 At the time it was launched, it was intended that the programme would be comprised of regular, mandatory, systematic and harmonized. safety audits to be carried out by ICA0. 26 The audit function of ICAO has not been provided in the Chicago Convention; neither had there been any precedent for its mandatory exercise in the history of ICAO. For this reason, there was no consensus at the beginning whether the mandatory nature of the audits would be against the principle of State sovereignty. 27 Through the extensive discussions, the President of the Council summarized that given that the audits would be carried out upon the initiative of ICAO, but always with the audited State's consent, 'it was inconceivable that the sovereignty of States would be infringed. upon. ' 28 He further explained that:

22. Report and Minutes, Executive Committee, Assembly 29th Session, Montreal 22 September - 8 October 1992, Doc 9595, A29-EX, 10, paragraph 7.12. 23. Assembly Working Paper, 'Implementation of ICAO Standards and Recommended Practices', A31-WP/56 EX/19, 4, paragraph 2.6. 24. Assembly Resolution A32-11, 'Establishment of an ICAO universal safety oversight audit programme', Assembly Resolutions in Force (as of 6 October 2016), Doc 10075, I-99. 25. Ibid. 26. Ibid., operative clause 1. 27. ICAO, Council Minutes, C-Min 151/10, 94 et seq., Doc 9704-C/1122. 28. Ibid., 101, paragraph 35.

60

hapter 5: Civil Aviation and Sovereignty: The Role of ICAO

§5.04[A]

[j]ust as Representatives sat on the ICAO Council as an act of sovereignty, a State's acceptance of an ICAO audit was an act of sovereignty, and it was out of the question that this sovereignty would be circumnavigated. 29 consequently, in order for the said programme to ensure the respect of State vereignty, Assembly Resolution A32-ll 3° on the Establishment of ICAO USOAP s all Contracting States to agree to audits to be carried out upon ICAO's initiative, t always with the consent of the State to be audited, by signing a bilateral morandum of understanding (MoU) with the Organization. Therefore, as pointed t by Dr Milde, a former Director of the ICAO Legal Bureau, given that the audits are ,\iudertaken on the basis of a MoU between ICAO and the State to be audited, the IX50vereignty of States is fully respected by the program.' 31 · With respect to the audit results, the Assembly Resolution A32- l l calls for greater ~ansparency and increased disclosure. In this connection, the Council of ICAO approved in 2005 a procedure for disclosing information about a State having significant SARPs deficiencies in its aviation safety obligations. 32 Even more significant action was taken in 2006, when DGCA from 153 Member States 33 went a step further and agreed that, by March 2008, the names of those States that fail to agree to full of their USOAP audits would be posted on the ICAO website. 34 By the end the Conference, sixty-six States authorized ICAO to release information regarding safety oversight, and subsequently, in July 2008, the Organization announced that all ICAO Member States audited under the USOAP had given their consent for lCAO to release the results of the audits conducted in their respective countries. 35 As Dr Milde observes, the significance of the decision adopted at the DGCA was far-reaching not only in a sense of its content but also because it resulted out 'of a meeting of no legal status in ICAO and endorsed without a vote by "consensus" of DGCAs who hardly possess any authority for international decision-making'. 36 The original concept drafted in 1999 later evolved due to the transition of the programme to a comprehensive system approach for the conduct of safety oversight audits and expanded the scope to include safety-related provisions of all safety-related Annexes to the Convention. Later, there was a transition of USOAP to a continuous monitoring approach (USOAP CMA). 37 Over the years, ICAO developed and described 29. Ibid., 101, paragraph 36. 30. A32-ll, 'Establishment of an ICAO universal safety oversight audit programme', Assembly Resolutions in Force (as of 6 October 2016), Doc 10075, I-99. 31. Michael Milde, Aviation Safety Audits Audits and the Law, 26 Ann Air & Sp L 165, 175 (2001). 32. ICAO Council Minutes, C-MIN 176/6, 16 November 2005, Doc 9865-C/1152. 33. A total of 567 participants from 153 Contracting States and 26 international organizations attended the 'Directors General of Civil Aviation Conference on a Global Strategy for Aviation Safety', held in Montreal from 20 to 22 March 2006 (See Report, Doc 9866). 34. See Recommendation 2/1 of the DGCA Conference, ibid., 3-5. 35. ICAO News Release, PIO 04/08, 'All Audited States Now Authorize ICAO to Post Audit Results on Public Website', 16 July 2008. 36. Michael Milde, The ICAO Directors General of Civil Aviation Conference on a Global Strategy for Aviation Safety (Montreal, 20 to 22 March 2006), 31 Ann Air & Sp L, 475, 476 (2006). 37. As directed under Assembly Resolution A36-4, 'Application of a continuous monitoring approach for the !CAO Universal Safety Oversight Audit Programme (USOAP) beyond 2010', Assembly Resolutions in Force (as of 28 September 2007), Doc 9902, 1-96. This resolution has

61

§5.04[B] additional tools, processes and guidance that have been implemented to supp USOAP CMA in providing metrics for ICAO to monitor States' objectives set out in the Global Aviation Safety Plan. 38

[B]

Universal Security Audit Programme

Following the terrorist attacks in the United States on 11 September 2001, IC established the Universal Security Audit Programme (USAP). 39 The aim of USAP is promote global aviation security through continuous auditing and monitoring Member States' aviation security performance, in order to enhance their aviati security compliance and oversight capabilities. 40 This aim shall be accomplished obtaining and analysing data on Member State's aviation security performance on regular and continuous basis, identifying deficiencies in the overall aviation securi performance of Member States, providing prioritized recommendations to ass· Member States in addressing identified deficiencies and reassessing the overall levels security performance achieved by Member States. 41 The audits are conducted wi the context of eight critical elements to an effective State aviation security oversi system. 42 In terms of USAP procedure, it differentiates from the USOAP methodology in tw ways. First difference is related to the assurance of confidentiality recognized forth special sensitivity of aviation security-related information. 43 Also, in order to obse the sensitivity of the information, audit reports and all audit-related documentation subject to rigorous physical controls by ICAO and are only shared with the audit State. 44 Second, in case of on-site audits, one or more airports of the audited State ' be selected to be visited by the audit team in order to determine the level of State compliance with Annex 17 as well as other security-related provisions contained other annexes. Hence, the audits are not solely carried out on the governmental lev

38. 39. 40. 41. 42.

43. 44.

been superseded by A37-5, 'The Universal Safety Oversight Audit Programme (USOAP) con tinuous monitoring approach', Assembly Resolutions in Force (as of 6 October 2016), Doc 10075, I-106. As contained in the Universal Safety Oversight Audit Programme Continuous Monitori Manual, Doc 9735, 4th ed., 2014. See A33- l, 'Declaration on misuse of civil aircraft as weapons of destruction and other terroris acts involving civil aviation', Assembly Resolutions in Force (as of 6 October 2016), Doc 10075, VII-I, operative clause 7. Universal Security Audit Programme; Continuous Monitoring Manual, Doc 9807, 2nd ed., 2016, 3-2. Ibid., 3-2. These encompass Aviation Security Legislation, Aviation Security Programmes and Regulations, State Appropriate Authority for Aviation Security and its Responsibilities, Personnel Qualifications and Training, Provision of Technical Guidance, Tools and Security Critical Information, Certification and Approval Obligations, Quality Control Obligations, Resolution of Security Concerns, Universal Security Audit Programme; Continuous Monitoring Manual, Doc 9807, 2nd ed., 2016, 2-4, paragraph 2-3-10. Ibid.

62

apter 5: Civil Aviation and Sovereignty: The Role of ICAO

§5.04[C]

include compliance within the airports as well. 45 As of 2015, the USAP has moved ards a continuous monitoring approach (USAP CMA). Similarly to the USOAP audits, the USAP audits are made with the consent of the ·red State on the basis of an MoU with ICA0. 46 Therefore, State sovereignty under AP is also fully respected.

Significant Implications from the Success of ICAO's Audits decades have passed since ICAO broke the new ground by conducting its first datory audit to a Member State. Despite that safety audit by a team of international erts could at first appear to be potentially intrusive and offending to the sensitivity t)fsovereign State, 47 the fact that such an audit has been performed in almost all ICAO 'I'M:ember States is certainly a convincing argument of the legitimacy and the success of the said programme. 48 It was due to the dynamic development of newly emerging . safety and security requirements in international aviation that ultimately led States to display certain flexibility in the exercise of their sovereign rights. 49 Instead of amending the Chicago Convention to acquire the audit function, which take several decades, ICAO opted for an innovative shortcut in its audit pro~ lfi·amme·s: a top-down approach through an Assembly resolution approving the audit followed by a bottom-up approach through individual MoU between ICAO each of the audited States, 50 all under the banner of full respect to State sovereignty. Its practice has formulated 'a principle that matters of aviation safety are subject of international concern and that the international community should be empowered to verify the national implementation of safety standards and procedures' .51 It may be further argued that the shift from considering safety matters as being exclusively within national jurisdiction to that of the international domain represents a significant movement that would place the duty to protect aviation safety as an obligation owed to the international community as a whole. In this sense, ICAO may be considered as an agent of the international community to exercise collective sovereign will of its Member States and to verify whether an obligation erga omnes has been fulfilled. Thus, its legitimacy to launch audit programmes certainly 'lies in the

45. Ibid., 2-1, 2-1-6. See also Ludwig Weber, Convention on Intemational Civil Aviation - 60 Years, 53 Zeitschrift fiir Luft-und Weltraumrecht 289, 307 (2004); Jiefang Huang, Aviation Safety Through the Rnle of Law, 71-72 (Wolters Kluwer, 2009). 46. Universal Secnrity Andit Programme; Continnons Monitoring Mannal, Doc 9807, 2nd ed., 2016, 4-8, paragraph 4.5. 47. Michael Milde, Enforcement of Aviation Safety Standards Problems of Safety Oversight, 45(1) Zeitschrift fiir Luft-und Weltraumrecht 3, 14 (1996). 48. See 'Safety Audit Results', online: https://www.icao.int/safety/Pages/USOAP-Results.aspx. 49. Michael Milde, The ICAO Directors General of Civil Aviation Conference on a Global Strategy for Aviation Safety, 31 Ann Air & Sp L 475, 489 (2006). 50. ICAO, Council Working Paper C-WP/10162 'Possible Enhancement of the Implementation of ICAO Annexes on Aviation Safety and Security', 4 June 1997. 51. Michael Milde, Aviation Safety Audits Andits and the Law, 26 Ann Air & Space L 165, 175 (2001).

63

§5.0S[B] commitment of the entire international community to protect the safety of internatio civil aviation'. 52 §5.05

[A]

IMPLEMENTATION OF SARPs THROUGH REGIONAL MECHANISMS The Need for RSOOs

Over the years, the audits performed by ICAO have shown that certain Member Stat have not been able to fulfil their safety oversight function, not because of the lack good intention, but because of lack of financial resources and qualified personnel. 53 remedy these situations, an important initiative of No Country Left Behind has b launched by ICAO. As parts of these efforts, ICAO has been promoting for several ye the establishment of regional mechanisms in the form of Regional Safety Oversi Organizations (RSOOs). These structures allow for sharing of aviation safety resour as well as for the harmonization of regional safety policies and procedures in order achieve a sustainable safety oversight capability at a global level. 54 For this purpo every Assembly Session since the 36th Session (2007) has adopted a resolution calli for the promotion of RSOOs. 55 The Organization has also adopted and publish guidance material on the establishment and management of RSOOs, including · organizational structure and financing. 56 [B]

The Purpose of an RSOO

Through an RSOO, Member States have the possibility of pooling their resources order to allow the regional system to conduct safety oversight tasks and functions their behalf. 57 For example, a State may delegate certain safety oversight tasks functions to an RSOO. These functions can range in certain cases from expert advis services with respect to safety oversight to a higher level of delegated functions such 52. Jiefang Huang, Aviation Safety Through the Rule of Law, 78 (Wolters Kluwer, 2009). 53. Establishment and Management of a Regional Safety Oversight Organization, Safety Overs· Manual, Part B, Doc 9734, 2nd ed., 2011, 1-1, paragraphs 1.1.2; 2-1, paragraph 2.1.4. 54. Ibid., 1-1, paragraph 1.1.4. In fact, the establishment of RSOO has been promoted in vari ICAO meetings such as the Directors General of Civil Aviation Conference on a Global Strat for Safety Oversight (2006), the EC-ICAO Symposium on Regional Organizations (2008), ICAO Council Group on Regional Bodies (2009), the High-Level Safety Conference (2010), Forum on Regional Safety Oversight Organizations for Global Aviation Safety (2017). 55. The most recent one on this topic is Assembly Resolution A39-14 which encourages Mem States to foster the creation of regional or subregional partnerships to collaborate in development of solutions to common problems to build State safety oversight capability, and participate in, or provide tangible support for, the strengthening and furtherance of subregio and regional aviation safety and safety oversight bodies, including RSOOs. See A39-14, 'Regio cooperation and assistance to resolve safety deficiencies, establishing priorities and se · measurable targets', Assembly Resolutions in Force (as of 6 October 2016), Doc 10075, I-104. 56. Establishment and Management of a Regional Safety Oversight Organization, Safety Overs· Manual, Part B, Doc 9734, 2nd ed., 2011. 57. Ibid., 2-1, paragraph 2.1.4.

64

ter 5: Civil Aviation and Sovereignty: The Role of ICAO

§5.0S[C]

conduct of inspections for the certification of an operator. 58 Therefore, when an is performing safety oversight function on behalf of a State, it is always at its 0 est and with its consent. In such situation, the analogy is often made that the RSOO as the 'agent' of a State, which is the 'principal'. 59 Nevertheless, a State which ates such function to an RSOO must still retain the minimum capabilities which required by the Chicago Convention to carry its responsibility. 60 Each RSOO is different not only in terms of the level of delegated authority but in terms of structure and level of integration. Some RSOOs, such as the European tion Safety Agency, are highly formalized intergovernmental organizations, while others are less integrated. In fact, the overall structure of an RSOO is usually ted in order to suit the requirements of the group of States forming it as well as to 61 t the needs of a specific region. Notwithstanding their differences in terms of cture and functions, it remains that the main objective of RSOOs is generally to port the licensing, certification, authorization, approval and surveillance of civil ation activities within its Member States as well as to improve aviation safety within region. 62 In other words, the goal of an RSOO is to ensure that their Members is+idJIJef,ate in accordance with ICAO Standards. 63 In addition to RSOO, it should be highlighted that ICAO is also promoting and has pted guidance material for assisting States in establishing other regional mechams such as Regional Accident and Investigation Organization (RAI0). 64 The func'ns of such organization can range from providing consultative and advisory services ;foperforming accident investigations. Similarly to RSOO, for any functions delegated to ;,tJie RAIO, the Member State retains responsibility for the oversight of the system under the Chicago Convention. [CJ

State Sovereignty in Relation to RSOOs

As mentioned above, the overall structure as well as the functions delegated to an RSOO by Member States may differ from one State to another. Nevertheless, the way they operate must always be in accordance with the provisions of the Chicago Convention. In fact, even though a State has delegated some of its safety oversight functions to an RSOO, 'States should not be allowed to release themselves from international obligations by hiding behind another international legal personality.' 65

58. Ibid., 2-2, paragraph 2.1.8. 59. See Ruwantissa Abeyratne, Ensuring Regional Safety in Air Transport, 35(3) Air & Space L 249, 252 (2010); Charles E. Schlumberger & Shruti Vijayakurnar, Regional Safety Oversight Organisation: Service Provider or More, 39 Ann Air & Sp L 213, 220 (2014). 60. Establishment and Management of a Regional Safety Oversight Organization, Safety Oversight Manual, Part B, Doc 9734, 2nd ed., 2011, 2-2, paragraph 2.1.8. 61. Ibid., 2-3, section 2.2. 62. Ibid., 2-5, paragraph 2.3.6. 63. Schlumberger & Vijayakurnar, supra n. 59, 220. 64. Manual on Regional Accident and Incident Investigation Organization, Doc 9946, 2011. 65. Mikolaj Ratajczyk, Regional Aviation Safety Organisations: Enhancing Air Transport Safety Through Regional Cooperation, 220 (Doctoral Thesis, Leiden University, online: https:// openaccess.leidenuniv.nl/handle/1887 /29759, 2014).

65

§5.06

Consequently, States are still liable for any potential liability, which may result fro the actions of the RS00. 66 In this connection, one scholar has observed that: it seems unavoidable that ICAO will need to modify its principle of ultimate State responsibility, or at least give it a very narrow interpretation (from which it would be clear that normally the regional organization concerned is responsible for its own acts, in the areas in which States have transferred powers to this_ organization). 67 At the same time, in order for ICAO 'to modify its principle of ultimate Stat responsibility', an in-depth study is necessary, including the assessment whether the is any need or momentum to amend the Chicago Convention. There is also discussi in ICAO fora about the development of an ICAO mechanism for enhancing Stat safety oversight capabilities. 68 While this matter may await for the action of the 40 Session of the ICAO Assembly, a trend may be discerned that ICAO and region organizations may play more active roles in the coming years in the area of safe oversight. §5.06

CONCLUSION

The seventy-five-year history of ICAO has been full of challenges, and even great challenges are ahead. Despite all these challenges, the Chicago Convention, as fundamental legal framework for international civil aviation, appears to stand the t of time. The principle of State sovereignty has been and will continue to be cornerstone of international air law. As the volume of air transport drastica increases, the exercise of sovereign power in this field is bound to be focused on protection of aviation safety. Aviation safety has become the common concern of the international community. as a whole; it has been the top priority of ICAO's work. While its Member States remain primarily responsible for the enforcement of safety standards, the predominantl international nature of civil aviation requires collective approach through ICAO an regional civil aviation organizations, in order to resolve the common issues which go beyond territorial boundaries and nationalities. As an intergovernmental organization reaching 75th anniversary, ICAO should retire, in the sense of putting on new tires as Dr Milde said, in order to make furth advance. It should be mandatory of the international community to implement th collective sovereign will of its Member States in its long journey to protect aviation safety. 66. Ibid., 219. 67. Niels Blokker, Member State Responsibility for Wrongdoings of International Organizatio

Beacon of Hope or Delusion?, in: Ana Sofia Barros, Cedryc Ryngaert & Jan Wouters (eds) International Organizations and Member State Responsibility: Critical Perspectives 34, 4

(Leiden, Brill Nijhoff, 2016). 68. See Recommendation 6.1.3/1, 'Thirteenth Air Navigation Conference (Montreal, 9 to 19 October 2018). Report', Doc 10115, AN-Conf/13. See also !CAO Council Working Paper, 'Draft Assembl Working Paper - Report on the Global Aviation Safety Oversight System (GASOS)', C-WP/. 14909.

66

TER

6

e Impact of Sovereignty on Regional ooperation in Civil Aviation: The Russian ferspective

approach to the development of regional cooperation in the area of civil aviation is viewed in the context of its permanent search for balance between sovereignty and independence in international relations, on the one hand, and the urge to maintain and strengthen regional ties with the neighbouring States, especially within the framework of the newly established Eurasian Economic Union (EAEU), currently comprising, Russia, Armenia, Belarus, Kazakhstan and Kyrgyzstan, on the other hand. Taking into account this interrelationship with sovereignty, Russia's regional cooperation in civil aviation is divided into two main stages: (1) Russia's regional cooperation starting from the early 1990s, when the Agreement on Civil Aviation and Airspace Utilization was concluded in Minsk and the Interstate Aviation Committee (IAC), empowered with important aircraft type certification and aircraft accident investigation functions, was created after the dissolution of the Soviet Union; and (2) Russia's regional cooperation starting from 2015, when Russia began to limit the IAC's functions and actively develop cooperation within the EAEU. Despite the increased importance of regional aviation organizations and other cooperative arrangements, the Chicago Convention remains a treaty which is exclusively concluded by States. Moreover, it founded the International Civil

* This publication contains exclusively personal opinions of the author. This opinion and this publication as a whole must not be attributed to any institutions and entities with which the author was affiliated or is currently affiliated through any form of employment or other contractual relationships.

67

§6.01 Aviation Organization (ICAO) as the organization of the States regulating interna tional civil aviation. For the benefit of safe and orderly development of internatio air transport, the role of the sovereign State as the regulator of the civil aviati activities should not be undermined and replaced by any other entities.

§6.01

INTRODUCTION

Sovereignty as the basic concept of international law, including international air law has been constantly supported both by the Russian Federation's official foreign poll and by its legal scholars. According to the Concept of Foreign Policy of the Russi Federation adopted in 2016, Russia's foreign relations are aimed, in particular, ensuring its sovereignty and security, and its bilateral and multilateral cooperatio with foreign States is based on the principles of sovereignty and independence. 1 As stated by prominent Russian air law experts, the principle of complete an exclusive sovereignty of every State over the airspace above its territory plays a central role in international air law, defines the contents of many other principles and norms of this branch of international law and must be viewed as the integral element of a. State's sovereignty as a whole. Therefore, the characteristics of sovereignty as the supremacy of State power within the whole State territory and the State's indep dence in international relations also fully apply to airspace. 2 By virtue of the State's sovereignty over its airspace, the State enjoys a whole range of rights, which can be divided into three major groups: (1) rights relating to setting the regime of national airspace and regulation of flights of any aircraft within such airspace; (2) rights relating to regulation of air transport's commercial activities within the State's territory; and (3) rights to exercise criminal, civil and administrative jurisdiction over any aircraft flying within the State's airspace and any aircraft registered by that State, including any person on board such aircraft. 3 At the same time, Russia's geographical, historical and socio-economic charw teristics inevitably necessitate the development of various forms of international cooperation in the field of civil aviation, and especially regional cooperation and even; integration with neighbouring States. The following key factors have influenced such

1. Decree of the President of the Russian Federation No. 640 on Approval of the Concept of Foreign Policy of the Russian Federation Article 3 (30 November 2016), 49 Sobranie Zakonodatelstva Rossiskoy Federatsii 6886. 2. 1 Y.N. Maleev & A.P. Movchan, International Air Law at 36-37, A.P. Movchan (ed.) (1980) (in Russian). See also V.D. Bordunov, International Air Law at 40 (2007) (in Russian) and A. Abashidze, International Air Law at 16-17; A. Abashidze & A.I. Travnikov (ed.) (2018) (in Russian). 3. 1 Y.N. Maleev & A.P. Movchan, International Air Law at 42-43, A.P. Movchan (ed.) (1980) (in Russian).

68

apter 6: Regional Cooperation in Civil Aviation in Russia

§6.01

. ional cooperation from the moment of emergence of Russia as an independent State, t is, since the beginning of the 1990s: _ the historically close industrial, economic, social, academic, language and cultural ties between Russia and its neighbouring States, that is the former republics of the USSR; _ the concentration of large scientific, technological, human and other resources in the territory of Russia, especially in its capital, Moscow, which was also the capital of the former USSR; _ the close, integral links between the air transport operations of Russia and its neighbouring States, that is the former Soviet republics, since these operations resulted from the dissolution of the unified civil aviation system of the USSR; _ the applicability of the Soviet aviation legislation on the territories of Russia and other Member States of the Commonwealth of Independent States (CIS) during the 1990s, that is until the adoption of the national legislation by CIS Member States; 4 - the succession of Russia in respect of all treaties and air transport agreements concluded by the former USSR, as well as membership in the Council of ICA0; 5 - the transfer of all traffic and other rights, previously granted to the single Soviet air transport monopoly carrier 'Aeroflot - Soviet Airlines' by the USSR's air transport agreements, to its successor, the public joint stock company 'Aeroflot - Russian Airlines', which is now incorporated in Russia and designated by Russia for operation of its international air routes; 6 - the convenient geographic location of Russia because Russia is located at the crossroads of Europe and Southeast Asia, and the Western hemisphere and Asia while taking into account the very large size of its territory; and - the economic benefits arising from pooling the resources and closer (re)integration of regional markets, including air transport markets, of Russia and some of its neighbouring States, in particular, Armenia, Belarus, Kazakhstan and Kyrgyzstan, against the background of an increasingly competitive global economy. Pursuant to the Concept of Foreign Policy of the Russian Federation of 2016, its foreign policy priorities include further development of its bilateral and multilateral cooperation with the Member States of the CIS and intensification of integration within the Eurasian Economic Union (EAEU), currently comprising, together with Russia

4. Member States of the CIS, which was created after the dissolution of the USSR, initially included Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, the Russian Federation, Tajikistan, Turkmenistan, Ukraine and Uzbekistan. However, Georgia later withdrew from the CIS, Turkmenistan changed its status from full to associate membership and the status of Ukraine within the CIS is currently not fully clear. S. See Diplomatic note of the Ministry of Foreign Affairs of the Russian Federation addressed to the heads of diplomatic missions (13 January 1992), 2-3 Diplomaticheskiy vestnik 34 (1992). 6. Resolution of the Government of the Russian Federation No. 527 on organization of international air services of the Russian Federation (28 July 1992), 5 Sobranie aktov Prezidenta i Pravitelstva Rossiyskoy Federatsii 251 (1992).

69

§6.02[A] itself, Armenia, Belarus, Kazakhstan and Kyrgyzstan. 7 Of course, these priorities full: apply to all fields of cooperation, including civil aviation. Thus, Russia's approach to development of international cooperation in the ar of civil aviation should be viewed in the context of its permanent search for balan between sovereignty and independence in international relations on the one hand, a the urge to maintain and strengthen regional ties with the neighbouring State especially within the framework of EAEU, on the other hand. Considering th" correlation between sovereignty and Russia's regional cooperation in civil aviation, latter can be historically divided into two main stages: (1) Russia's regional cooperation starting from the moment of its emergence the independent State, i.e. from the beginning of the 1990s, and until 2015; (2) Russia's regional cooperation starting from 2015.

§6.02

[A]

RUSSIA'S REGIONAL COOPERATION IN CIVIL AVIATION STARTING FROM THE EARLY 1990S AND UNTIL 2015 Regional Cooperation in the Area of Aviation Safety and Aircraft Accident Investigation until 2015

The period of Russia's regional cooperation in the area of aviation safety and aircra accident investigation starting from the early 1990s was characterized by the need t. address challenges posed by the dissolution of the USSR and the emergence, in it place, of new independent States. In that period, despite the acquisition of sovereignt over their national airspace, Russia and other former Soviet republics, faced with problems of maintenance of a satisfactory level of aviation safety and fulfilment of thei international obligations under aviation treaties and agreements, realized the impor tance to retain, as much as possible, their mutual ties. These were severed after th break-up of the highly centralized civil aviation management system of the USSR. The problems of development of regional cooperation within the CIS describe above were examined in 1994 by Russian aviation lawyer V.D. Bordunov, who note After the USSR ceased to exist, its airspace was inherited by fifteen independent and sovereign States. Having acquired control over their territorial airspace, these States were faced with the task of establishing their own traffic control and management systems, and rules of the air, as well as assigning responsibilities to government agencies for monitoring activities in their sovereign airspace a task they were not prepared to deal with. Lacking the financial and material resources required to maintain harmonious airspace utilisation, CIS member States had to seek unorthodox solutions .... 8 7. Decree of the President of the Russian Federation No. 640 on approval of concept of foreign po of the Russian Federation, Articles 49-50 (30 November 2016), 49 Sobranie Zakonodatels Rossiskoy Federatsii 6886. 8. V.D. Bordunov, Air Law Development in the CIS: Modem Trends, XIX-II Annals of Air and Sp Law 107, 109 (1994).

70

apter 6: Regional Cooperation in Civil Aviation in Russia

§6.02[A]

The 'unorthodox' solution, adopted almost simultaneously with the dissolution the USSR as the response to challenges faced by former Soviet republics, was the nclusion of the Agreement on Civil Aviation and Airspace Utilization, in Minsk from to 25 December 1991 (Minsk Agreement). 9 While reaffirming each Contracting te's complete and exclusive sovereignty over its national airspace as well as its ts to independently regulate civil aviation activities within its territory, at the same e the Minsk Agreement and further regulations adopted on its basis have provided a rather extensive limitation of such sovereign rights in favour of international dies established by it. 10 Namely, the following international bodies have been ated under the Minsk Agreement: _ the Council for Aviation and Airspace Utilisation (Aviation Council) composed of the plenipotentiary representatives of the Contracting States (including representatives of their Ministries of Defence or Defence Committees) as well as the Commander-in-Chief of the CIS Armed Forces; and - the Interstate Aviation Committee (IAC), empowered to carry out the practical implementation of the Minsk Agreement as well as provide support for the work of the Aviation Council and implementation of its decisions. In addition to the Minsk Agreement itself, the organization and functions of the Aviation Council and the IAC have been more precisely specified by their statutes ~,.,T,rm.rr1 by the Aviation Council on 19 February 1992 and subsequently amended. In

'.%·

321

''

I

§23.04[D] Protocol 180 with the ten ASEAN Member States as a bloc, which mutually opens up Third and Fourth Freedoms without any limitation on capacity, frequency and air type for passenger and cargo services between any point in the ASEAN Member St and any point in China. This achievement certainly marks a significant step forward China in respect of regional liberalisation. 81 In 2014, the Protocol 2 82 was concluded between China and the ASEAN Mem States to further liberalisation by opening up Fifth Freedoms with certain restrictio For instance, the Protocol 2 limits the city points through which Fifth Freedoms can exercised, in particular, it excludes points of Beijing, Shanghai, Guangzhou ASEAN's capitals and major cities. The Protocol 2 also imposes weekly capacity li for external Fifth Freedom operations, i.e., the Fifth Freedom traffic with intermedi and/or beyond points outside China and the ASEAN Member States. As noted Professor Alan Tan, Protocol 2 on the exchange of Fifth Freedoms, therefore, is less significant and unlikely to advance air transport liberalisation appreciably betweert both sides. 83 That said, achieving the ultimate goal of the full liberalisation of the China-ASEAN ASAs has been reaffirmed by both sides in 2018 and will be further strengthened under the BRI. 84

[D]

Opening-Up of Traffic Rights on a Unilateral Basis in Hainan: Fiftee Years On

An experimental step in the liberalisation of China is the creation of an entirely op aviation policy for Hainan Province, which is China's second largest island at · southern tip and also China's largest Special Economic Zone (SEZ). As air services we insufficient to satisfy the demands of Hainan's economic development, in 2003 the CAAC adopted a policy to unilaterally and fully open up of Third, Fourth and Fifth

80. Protocol 1 on Unlimited Third and Fourth Freedom Traffic Rights Between Any Points in ~;l Contracting Parties (signed 12 November 2010). As of August 2017, the China-ASEAN ASA and the Protocol 1 entered into force for China and all ASEAN Member States. +: 81. Prof. Alan Tan identified an asymmetry issue which may prove disadvantageous to the ASEAN carriers - as Protocol 1 does not allow the ASEAN carriers to operate between another fellow ASEAN Member State and China, the Chinese carriers are able to connect any point in China .~ with any point in ASEAN, while the ASEAN carriers can only connect any point in their home''~ States with any point in China. See Alan Khee-Jin Tan, The 2010 ASEAN-China Air Transport J Agreement: Placing the Cart Before the Horse?, 37 Air & Space L. 35, 35-50 (2012). ·~ 82. Protocol 2 on Fifth Freedom Traffic Rights Between Contracting Parties (signed 19 December ·.~ 2014). As of August 2017, the Protocol 2 entered into force for China and eight ASEAN Member ;l 6 States that ratified the Protocol 2, i.e., Singapore, Malaysia, Thailand, Viet Nam, Myanmar, Cambodia, the Philippines and Laos. See Yi Zhang & Xingwu Zheng et al., Measuring the Openness of Chinese International Air Transport Policy, 72 Transport Pol'y 208, 210 (2018); The ASEAN Secretariat, Kuala Lumpur Transport Strategic Plan (ASEAN Transport Strategic Plan) 0 2016-2025 9 (2015). ··~ 83. See Alan Khee-Jin Tan, The 201 O ASEAN-China Air Transport Agreement: Much Ado over Fifth 11 Freedom Rights?, 14 Issues Aviation L. & Pol'y 19, 19-32 (2014). 84. ASEAN, ASEAN-China Strategic Partnership Vision 2030 (2018), https://asean.org/asean-china -strategic-partnership-vision-2030/ (accessed 21 March 2019).

.:j

322

pter 23: Sovereignty and ASAs: The Case of China

§23.05

dorn rights including stopover rights 85 in Hainan to all domestic and foreign airlines eir passenger and cargo services. The policy was imposed on a unilateral basis no restrictions on routes and frequencies and did not request the reciprocal ange of traffic rights. 86 As of March 2003, there were only five international routes to and from Hainan thirty-four flights per week. Thanks to the policy, twelve new international routes established with 306 new flights added in the same year. After more than fifteen of development, Hainan has now opened up sixty-one non-stop routes to Russia, stan, Singapore, the UK, South Korea, Cambodia, Laos and many other States regions, connecting internationally or regionally with more than forty cities. 87 CONCLUSION

ay's economic regulation of international air transport with thousands of ASAs is ed in the customary international law airspace sovereignty as confirmed and 'dated in the Chicago Convention, in particular Articles 1, 5, 6 and 7. The past nty-five years' State practice in the field of economic regulation of international air port has demonstrated that the Chicago Convention and bilateral regulation of national air services are steady and flexible enough to accommodate the changing s of international air transport as well as the growing needs of a wide variety of es at different stages of development. States have relied on and will continue to rely ASAs including those regional and plurilateral ASAs to regulate and liberalise ational air services, while at the same time promoting and protecting its own rests. As an example, China's practice pertaining to the 126 ASAs it concluded in the decades has illustrated the relevance and significance of the Chicago Convention in y's economic regulatory development of international transport. Following the iple of airspace sovereignty, it is China's view that States should promote lisation as they deem appropriate, based on their own choice and pace in the light eir diversified air transport development. For more than fifteen years, China has pted a proactive, progressive, orderly and safeguarded approach towards liberalisaof air transport and, accordingly, it has gradually introduced more liberalised eral ASAs and will continue to facilitate opening-up of traffic rights under the BRI ding building the Silk Road in the air. Regional Open Skies arrangement has also achieved recently through the China-ASEAN ASAs signed in 2010 and 2014,

Stopover traffic is the traffic which has taken a stopover - an intentional interruption of movement through a point under a single air ticket or waybill for a period of time beyond that required for direct transit through or, when changing flights, for a period normally extending to the departure time of the next connecting flight and exceptionally including an overnight stay. See !CAO, supra n. 9 at IV-2-14 section 2.4.lS(c). See !CAO Secretariat, Overview of Regulatory and Industry Developments in International Air Transport 8 (2016). See Hainan Daily, Opening-Up of Traffic Rights for 15 Years, Hainan Becomes China's Most Liberal 'Open Skies Zone' (2018) (in Chinese), http://www.hi.chinanews.com/hnnew/2018-1 1-08/476118.html (accessed 21 March 2019).

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§23.05 which liberalise unlimited Third and Fourth Freedoms as well as limited Fifth p dams. In addition, Hainan, China's largest SEZ, has fully opened up of Third, Po and Fifth Freedoms on a unilateral basis since 2003. China has long treasured and continue to view the Chicago Convention as a basis for its international air trans relations. In respect of economic regulation of international air services, therefore paper concludes that it is advisable to leave the Chicago Convention as it is, hopin~ the Convention will remain as a living document to serve international civil aviation: the future.

324

US Perspective on the Utility of the icago Convention

·s paper describes the merits and the shortcomings of the international regulatory gime governing international civil aviation, that is, the Chicago Convention of 44 supplemented with Air Services Agreements, with special reference to the role hich United States (US) policymakers have played in the process of deregulation of e airline industry. While the Chicago Convention regime permits airline deregution, it does not encourage it. The US and the European Union (EU) have initiated gulation of their domestic markets and liberalization of air services under the brella of the Chicago Convention. In a maturing airline industry, it is now time to ave forward, beyond the restrictions following the Chicago Convention regime, by rther opening markets while addressing enforcement of rules on competition and ate subsidies.

CHANGING PATTERNS IN AIR TRAVEL

tion today is a wonder to behold. We are on the verge of connecting any two points arth with nonstop flights. Air travel has become consistently cheaper, safer and e available over the decades as low-cost airlines and massive, efficient hubs have ocratized air travel. When the Chicago Convention was signed in 1944, hereinafter 'Chicago Convention' or the 'Convention', a trip from San Francisco to Delhi would the better part of a week, require multiple stops, at least one change of airlines, cost more than the average American could ever afford. This itinerary improved in

e author served as Deputy Administrator of the US Federal Aviation Administration from 13-2016. The views expressed by the author in this article are his own.

325

§24.03[B] 1947, when Pan Am1 launched its famous 'Round-The-World' service - Pan Am 1 2 - offering three-stop service between San Francisco and Delhi, via Honolulu Kong and Bangkok. The flight took over three days and cost USD 22,000 in ; 0 d dollars. 2 Today you can make the same trip nonstop in sixteen hours - slightly more w connecting - with multiple travel options and fares under USD 1,000, §24.02

WITH TECHNOLOGIES LAGGING BEHIND

Unlike other industries, this revolution was not driven by breakthroughs in 'h technology. The jet engine, arguably the last revolutionary breakthrough in a · · technology, emerged from World War II and existed when the Chicago Convention w signed. Upgrades to that technology have been iterative - moving from four engines t three, then two; operated by four pilots, then three, now two. Each new aircraft fro Boeing or Airbus provides somewhat better fuel economy, greater range and a qui cabin. But there have been few disruptive technological innovations. While the communications sector has been disrupted multiple times by h technology (the cell phone, the Blackberry, the iPhone, Skype), the technology be · air travel has evolved at a much more deliberate pace. §24.03

[A]

THE EVOLUTIONARY PROCESS OF THE INTERNATIONAL REGULATORY REGIME

The Role of the Chicago Convention

Where massive disruption and innovation has occurred can be found in the technologies of aviation, i.e., the economic regulation of the industry, and changes business models that have resulted from regulatory innovation. The Chicago Convention for seventy-five years has provided the ....~LUUU,,..~ legal framework for the airline industry. It created a framework that allowed changes in domestic regulation - specifically, airline deregulation - that led innovations in the business models. But the Chicago Convention has not spawned the. same level of innovation at the international level. In this regard, it may have its usefulness.

[B]

The Post-War Years ;vers1lble delegation. On the contrary, all uses of delegated power, and all rules that vP"'·U"•~c- from the delegation, are subject to a sovereign re-assessment according to the value obtained and the results achieved. In that sense, sovereignty and are fused: if governments delegate to ICAO a mandate to administer outer including resolution of the longstanding problematique of how to delimit from outer space, then ICAO will be judged, as any agency will be judged, by effectiveness in fulfilling its mandate. Withdrawal of the delegation, therefore, will a reassertion of ancient sovereign prerogatives but rather will itself constitute further act of governance. A new forum and a new mandate may have to be chosen conferred. I realize, once again, that this new "ecosystem" of sovereignty might be criticized too context-bound. It is perhaps easier to proclaim a "new" sovereignty of .collaborative reciprocal governance in a field such as air transport where historically fuere have been technical and economic incentives to collaborate. 30 But that assess:rnent does not change the fact that the general theory of a new sovereignty is as evident ltere as it is anywhere else in the modern political economy. The history of the Chicago Convention is a functional evolution from the original ~message of noli me tangere in Article 6-effectively declaring that the skies were 0

~7.

See Kyoto Protocol to the United Nations Framework Convention on Climate Change, Article 2(2), December 10, 1997, 37 I.L.M. 22; see also Brian F. Havel, Conclusion, in A.L.C. de Mestral, P. Paul Fitzgerald, & Md. Tanveer Ahmad (eds.), Sustainable Development, International Aviation, and Treaty Implementation, 344, 348 (2018). ~8. Based on research I did for the !CAO Council's 2018 summer retreat on "The Future of Aviation," I am currently preparing a study analyzing the source and scope of ICAO's "mandate" in relation to inner and outer space activities. 29. Some Montrealers might be happier for !CAO to assume charge of the potholes. W. See Havel & Mulligan, supra note 7, at 15.

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considered closed unless States chose to open them by a negotiated special permission-toward the large number of substantive rules and policies, many hardly mentioned in the Convention at all, that form the acquis of ICAO in the seventy-fifth year of its existence. ICAO, as a result, is an interesting presence as a successful treaty-based organj, zation, 31 which quickly achieved its most technical internationally-agreed goals of reciprocal recognition of aircraft registration and certification as well as crew licensing. But it traveled well beyond those limited goals of assuring basic certainty in the exchange of air services toward a much wider policy space that includes audits of Member States' compliance with ICAO safety and security standards and global standards for aircraft noise and carbon emissions. Applying the principles of the new sovereignty, therefore, ICAO demonstrates how international aviation can today be viewed as "anti-sovereignty" despite enshrining the classic State sovereignty principle in the very first article of the treaty. Accordingly, the new sovereignty to which the Chicago Convention now attests, three-quarters of a century after it was established on old sovereignty foundations, reflects certain key principles of how States can, and do, allow international agencies to evolve even when political winds change. In a post-Westphalian model of governance, States analyze and desegregate their portfolios of responsibility and may substitute upward to international or regional organisms (or downward to local government, according to the doctrine of subsidiarity32). Where shared interests predominate, and again international aviation is the cynosure, States will agree on rules to advance those shared interests but may also put in place an external administrative structure like ICAO to monitor, adjudicate, enforce, and perhaps also-as we see in the Chicago Convention-to extend the range and content of those rules through a rule-making mechanism.

31. There are much less successful international organizations, although the academic literature on these organizations is not plentiful. For an excellent study of an international organization that struggled and eventually took the unusual step of self-curtailing its mandate in order to survive, see Laurence R. Helfer, Understanding Change in International Organizations: Globalization and Innovation in the [International Labor Organization], 59 Vanderbilt Law Review 649 (2006); and, for a generally positive review of ICAO's record in a decade-by-decade chapter format, see David Mackenzie, ICAO: A History of the International Civil Aviation Organization (2010). 32. The principle of subsidiarity, as expressed in the law of the European Union, signifies that there are certain circumstances where, in areas where the Union shares competence with the Member States, any proposed Union legislation must define the circumstances that determine why "it is preferable for action to be taken by the Union, rather than the Member States." In other words, the Union institutions must justify taking action where local (State) action might also be possible. The legal basis for subsidiarity is found on Article S(3) of the Treaty on European Union (TEU) as well as the attached Protocol on the application of the principles of subsidiarity and proportionality. See European Parliament, Fact Sheets on the European Union, http://www. europarl.europa. eu/factsheets /en/ sheet/7 /the-principle-of-subsidiarity (accessed April 14, 2019).

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TRADITIONAL SOVEREIGNTY IN THE ECONOMIC REGULATION OF GLOBAL AVIATION

sure, the Chicago Convention emerged in an era of absolutism about airspace The conference representatives in 1944 were working from an existing 33 !HU'·"''""' the Paris Convention, that was also suffused with old notions of sovereign Nowhere was this traditional adherence more manifest than in the failed lliini;gond1.1u11~ to achieve economic regulatory powers for ICAO that would match its technical mandates. As a result, the political economy of the international industry has for seventy-five years held fast to traditional sovereignty principles nationality rule on ownership and control of national airlines and, relatedly, to ~:r;n,.nfr·~~c)r Henri Wassenbergh's formula of suum quique tnbuere, "to each his [or her] the assumption that airlines licensed in a State should have in fact, if not in law, claim on third and fourth, and even fifth freedom traffic touching the 34 i;;,,n-,ritiwv of that State. While we cannot say, therefore, that the functional evolution of the Chicago ever touched these rules directly, we do know that ICAO has begun (if to advocate principles of economic liberalization and today even hosts so-called dating" conferences that allow States to quicken the pace of bilateral liberalunder ICAO's panoptical gaze. 35 Here we can see fertile ground for the future application of the principles of new ~;,n.uP1'Pintv The nationality rule, after all, is not the only regulatory survivor of the old As ICAO's speed-dating conferences reflect, States have also not replaced, indeed have only partly modified, the restrictive regime of bilateral aeropolitical that dominated international air transport from the late 1940s and still it today. The persistence of the old economic order means that for seventy-five the regulatory system for international air transport has evolved through a geometry, with old and new sovereignty principles existing side-by-side but in any coherent way. The technical elements of international aviation, notably its codes which were the chief products of the Chicago Convention, have continued evolve in significant part through functionalism, while the airline industry political economy of aviation-has stalled in a protectionist time warp that stifled the industry's potential virtually from the inception. Indeed, because of bilateralism and the nationality rule-in other words, because the persistence of old sovereignty-we do not know at a basic level what the ev•~wc.w of the airline industry could ultimately be. We do not know, because of the nationalism and regionalism the industry has endured through the dominance mercantilist policies, the real level of service that air transport could provide to the population. In this respect, I concur with Erwin van den Steinen's observation

See supra note 10. See Henry A. Wassenbergh, Public International Air Transportation Law in a New Era 153

(Kluwer, 1976).

35. See ICAO, About ICAN, https://www.icao.int/Meetings/ican2012/Pages/About-ICAN.aspx (accessed 14 April 2019).

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Brian F. Havel

that the Chicago Convention's preamble is quite unlike Article 1 in that it speaks of a commu~ity of "nati~ns and peo~les" rather than o_f States a~d sovereignty. 36 Although that ch01ce of populist language m the preamble hmts at not10ns of post-colonialism, it is also another clue to a possible "technical + economic" future for the Convention as traditional sovereignty continues to wane. §27.06

THE FUTURE OF A "NEW" AIRSPACE SOVEREIGNTY

In making a tentative forecast that ICAO could evolve an economic mandate, I am by no means also suggesting, nor could I, that global change through adaptations of traditional sovereignty is a straightforward proposition. The U.N. multisectoral climate change process, for example, has foundered and is largely back in the grip of voluntary enforcement. ICAO's new carbon emissions reduction scheme, the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA}, 37 however, has moved well beyond the non-aviation reduction efforts of the countries which, as noted earlier, tagged ICAO in the Kyoto Protocol with responsibility for curbing global aviation emissions. Even if CORSIA falls short of what could be achieved using probably the most effective market-based mechanism, a global cap on carbon emissions, it will still have measurable economic effects on air transport and may yet restrain aviation carbon growth in combination with a basket of non-market measures. The process of new sovereignty as presented in this essay is unlikely to stop, therefore, and certainly not on the technical side of ICAO's agenda. Events tend to provoke institutional adaptability, assisted no doubt by astute international officials who seize the moment. 38 The tragedies of Malaysian Airlines' flights 17 and 370, two exogenous shocks to the international aviation system, led to State attribution to ICAO of mandates for a coordinated "single-source" online portal for inter-State communication regarding conflict zones, and for flight tracking, 39 each a modest but visible encroachment on traditional sovereign prerogatives for exclusive airspace management.40 The roster of future moments of expanded responsibility for ICAO on both the technical and economic sides is not fully predictable, but could include satellite-based

36. See Erwin von den Steinen, National Interest and International Aviation 34 (Kluwer Law International, 2006); see also Milde, supra note 18, arguing that complete and exclusive territorial sovereignty is not a restrictive and self-centered entitlement but a right that is to be exercised for mutual international benefit and cooperation. 37. See ICAO, CORSIA, https://www.icao.int/environmental-protection/CORSIA/Pages/default. aspx and https://www.icao.int/environmental-protection/pages/a39_corsia_faq2.aspx (accessed April 14, 2019). 38. "Neofunctionalism" is sometimes defined as the expansion of an international organization's mandate through the efforts of its officials to convince States to transfer new responsibilities to the organization based on a proven record of technical competence. See supra note 20. 39. See Global News, The Canadian Press, After MH 370 Tragedy, !CAO Looks into Global Flight Tracking (2014), https://globalnews.ca/news/1328820/icao-to-improve-global-t1ight-trackingafter-t1ight-mh-370-crash/ (accessed 14 April 2019). 40. See Havel & Mulligan, supra note 7, at 20.

364

r' .

.

lchapter 27: Reflections on the "New Sovereignty"

I:

l,a.ir navigation,

§27.06

cybersecurity, suborbital air travel, issues relating to global competi-

~on, uncrewed aircraft systems, the management of human capital, human rights and

labor rights, and the unresolved division between civil and military airspace allocaJt?: lions. However, the rise of multipolarity, especially Asia's emerging prominence as an l~eropolitical hegemon, could ultimately lead to sets of sovereign interests-unilateral regional-that could undermine the model of a global system that ICAO now lepresents. Already signs of fracture are visible in China's creation of an Asian l1ufrastructure Bank" that overlaps with the West's International Bank for Reconstructon and Development (the World Bank), one of the core Bretton Woods institutions l2reated under U.S. patronage in 1944. 41 It is thought that China is already pursuing its ~wn safety oversight infrastructure-which both the United States and the European lJuion also did when they considered ICAO's safety protocols to have fallen short-and ~this incipient unilateralism was already obvious during the Boeing 737 MAX contra~~yersy m . 2019 .42 ~· The other dystopian prospect in a future of more State-delegated powers is that, ~although epistemic collaborations of international officials are likely to be technically l!rroficient, they also risk a technocratic governance structure that is arguably not l~swerable to the demos in each participating State. Whether or not this is true-and feven whether or not it is even important-will depend on case-by-case analysis of how ~international organizations to which powers are delegated, whether inter-State or ~on-State, actually operate and to what extent each State considers itself in all respects ra "democratic" model. ~.· In regard to ICAO's regulatory activity, and despite legitimate concerns about ~lobal "managerialism", 43 governments do ultimately oversee the activities of national ~dvil aviation organizations that implement KAO standards. In addition, ICAO's own ;internal regulatory metric is one of wide State input through the thirty-six States that .comprise the Council, although that still leaves a rather large number of States which ;contribute only through the more diffuse arrangements of the triennial Assembly. Moreover, future incursions into areas of State sovereignty will have to bear in mind that not all delegated responsibilities are free of political odor: just to take one example, the distributional uncertainties of a carbon emissions reduction program have naturally attracted discontent from States that have not had a long history of carbon discharge but whose carriers are nonetheless required to moderate their emissions using a common scale. The upside for ICAO, as already noted, is that if it successfully maneuvers this unique intra-sectoral effort, States may be more likely to contemplate further expansions of ICAO's mandate in the areas of economic regulation

I

lor

41. See Enda Curran, The AIIB: China's World Bank (Bloomberg, 2018), https://www.bloomberg. com/quicktake/chinas-world-bank (accessed 14 April 2019). 42. See Keith Bradsher, China Asserts Its Air Safety Bona Fides After Boeing Crash (The New York Times, 2019), https://www.nytimes.com/2019/03/13/business/china-boeing.html (accessed April 14, 2019).; BBC News, Boeing: Europe and India Join Wave of Countries Grounding the 737 Max, 2019, https://www.bbc.com/news/world-asia-47536502 (accessed April 14, 2019). 43. See Koskenniemi, supra note 26, at 5.

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Brian F. Have1

including global airline competition rules, as well as in broader mandates for outer space regulation and for a more robust form of global dispute resolution beyond the crimped and politicized Council-based system that the Chicago Convention currently provides. With all that said, a telling remark on the present system of global air transport regulation may help to clarify the future scope for the new sovereignty in this domain. Giovanni Bisignani, in his memoir of his tenure as Director General of the International Air Transport Association, recalled a conversation with the Harvard business guru Professor Michael Porter. "Giovanni, I never came across such a mess as aviation" Bisignani recalls Porter telling him in discussions on a possible consulting agreement~ That "mess," although primarily on the economic side, is the product of the old ideas of exclusive sovereignty framed in the Chicago Convention, an incoherent patchwork of national and regional regulatory systems that has never allowed the aviation industry to perform to its full potential as a transnational economic sector. §27.07

CONCLUSION

It appears, therefore, that if the evolution toward a new sovereignty in air transport can

produce global, seamless, and prescriptive regulation of the skies, then the Chicago Convention need not be amended. The Convention's resilience after seventy-five years, where it has allowed a progressive delegation of technical responsibilities and functions-but not of sovereignty itself-shows that States have acknowledged that it is possible to delegate as an act of sovereignty and thereby to ensure more effective collaborative regulation. 45 The new sovereignty, as applied also to economic regulation of the global airspace, would at least partly reinstate the late Professor Nicholas Matte's high concept of airspace as the physical space that belongs to the entire world community and does not bow to the egoistic claims of particular States. 46 This is not warmed-over Kantian cosmopolitanism, however. As this essay has described, the new sovereignty is fundamentally pragmatic and hardly ever idealistic. As such, pragmatism will continue to define the new sovereignty in global air transport regulation so long as the now 193 Member States of the Chicago Convention continue to show confidence in ICAO's capacity, competence, and legitimacy-in a word, its prestige-in the realm of technical coordination and increasingly in the realm of economic coordination as well.

44. See Giovanni Bisignani, Shaking the Skies, 213 (2013). 45. See ICAO, Sixth Worldwide Air Transport Conference: Working and Information Papers, https: //www.icao.int/Meetings/atconf6/Pages/WorkingPapers.aspx (accessed April 14, 2019). 46. Nicholas M. Matte, Aerospace Law, 13 et seq. (1969). Professor Matte's conceptualization might also extend to ideation of the "atmosphere" as a common resource of humankind, which some commentators claim to be one of the evolving principles of international environmental law. See Brian F. Havel & Gabriel S. Sanchez, The Principles and Practice of International Aviation Law, 227-228 (Sweet & Maxwell, 2014).

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28

Future of Sovereignty in International Aviation: The Resurgence of Versus the Freedom of Flight

The preliminary hypothesis of this essay is that, as nationalism rises, the concept of sovereignty does so too. Accordingly, this essay commences by analysing the interrelationship between the concepts of sovereignty and nationalism, and the rise which they seem to be currently experiencing. Upon this foundational hypothesis, a secondary one is constructed. This secondary hypothesis revolves around two notions: the notion that the air transport industry thrives on an international society, and the notion that, as sovereignty and nationalism rise, globalisation concomitantly wanes. The secondary hypothesis is therefore that, as sovereignty and nationalism rise, the air transport industry is more likely to be adversely affected. This essay thus proceeds by determining whether this may be the case. Based on these two hypotheses, this essay undertakes to determine whether Article 1 of the Chicago Convention - as it currently stands - is suitable for the air transport industry, particularly in light of the path which global politics seems to be pursuing. The conclusion reached in this respect is that, notwithstanding the resurgence that sovereignty may be experiencing due to the rise of nationalism, Article 1 of the Chicago Convention does not seem to be affected by it, so much so that this provision does not seem to pose a threat to the freedom of flight generally.

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Roberto Cassar INTRODUCTION

In the year 2037, it is projected that passenger numbers in the air transport industry could exceed the 8 billion mark. 1 Juxtaposed with the 4 billion passengers in the Year 2017, 2 which equated to USD 534 billion in revenue,3 this figure is encouraging as it predicts a twofold increase in passengers, though not necessarily in revenue thereof within the span of twenty years. ' This promising outlook, however, is not absolute. It is not absolute because currently, global politics is experiencing a shift from the collective to the isolationist, a~ can be seen, albeit not exclusively, from the rise of nationalism in several States across several continents. From the withdrawal of the United Kingdom (UK) from the European Union (EU) ('Brexit') and the election of Trump as President of the United States (US) to the nationalist policies of Turkey, China, and the Philippines, and the success of far-right parties in Italian, German, and Austrian elections in the last few years, nationalism is on a global rise. 4 As nationalism rises, States ostensibly work inward and moderate their international activity, thereby suggesting that the bonds which tie the international community together may have started to slowly come undone. Further, as this happens, a concept which until recently had faded out of the limelight in political discourse seems to be regaining traction: the concept of sovereignty. Considering that the air transport industry is intrinsically international, this rise of nationalism and resurgence of sovereignty may therefore cause it to grow at a slower pace and with fewer socio-economic benefits. 5 Accordingly, it is apposite to examine the concept of sovereignty in air law under the political microscope and determine whether it is suitable in this day and age. Prior to commencing, it is submitted that considerable effort was made to treat the themes in this essay - namely those of sovereignty and nationalism - objectively. Should the treatment of these themes be nonetheless perceived as subjective, the reader should contrast this work with work of another nature in order to derive an equilibrated treatment of said themes. As to the methodology employed, the intention was to blend 'traditional' sources, such as jurisprudence, monographs, and journal articles, with 'contemporary' ones, such as reports by intergovernmental organisations and trade associations, and

1. International Air Transport Association (IATA), IA TA Forecast Predicts 8.2 billion Air Travelers in 2037 (Press Release No. 62, 24 October 2018) https://www.iata.org/pressroom/pr/Pages/201810-24-02.aspx (accessed 23 June 2019). 2. IATA, Travel Numbers Reach New Heights (Press Release No. 51, 6 September 2018) https:// www.iata.org/pressroom/pr/Pages/2018-09-06-0l.aspx (accessed 23 June 2019). 3. IATA, Industry Statistics: Fact Sheet (June 2019) https://www.iata.org/pressroom/facts_figures /fact_sheets/Documents/fact-sheet-industry-facts.pdf (accessed 23 June 2019). Note that the 534 billion USD in revenue is not equivalent to the net profit; id. 4. Florian Bieber, Is Nationalism on the Rise? Assessing Global Trends, 17(5) Ethnopolitics 519 (2018). See, for a thorough analysis of whether nationalism is actually on the rise, id. 419-540. 5. IATA, supra n. 1.

368

apter 28: The Resurgence of Sovereignty Versus the Freedom of Flight

§28.02

ctronic news articles. Reference was also made to quantitative data in order to vide a solid rationale for certain arguments put forth. THE CONCEPT OF SOVEREIGNTY

arious are those authors who have provided a definition of the concept of sovereignty. an Bodin6 (1530-1596) and Thomas Hobbes 7 (1588-1679} are two impeccable amples thereof, having treated this concept profoundly at a time when the State, in modern sense, was being forged in the midst of Europe. As instructive as a definition of the concept of sovereignty may be, the exercise of fining it - that is, using several words to elucidate the meaning of a single one - is lpful only to a limited extent. For the concept of sovereignty is an intangible one, and with any other intangible concept, it is not easy to fathom with the mere use of ords. Rather than attempting to define sovereignty, it may therefore be more suitable to · termine what sovereignty expresses. On the one hand, within a State, sovereignty presses the supremacy of the governmental institutions; on the other, outside a State, expresses the supremacy of the State as a legal person. 8 Once sovereignty expresses supremacy within a State and outside of it, it follows at the concept of sovereignty does not occur in vacua. The basis for this deduction is t 'supremacy' implies a hierarchy, and 'hierarchy' implies a multiplicity of subjects; ·thin a State and outside of it, there thus exists a hierarchy of multiple subjects. Within a State, for instance, a conceivable subject and member of this hierarchy the citizen who is subjected to the governmental institutions which reign supreme. the international platform, a comparable example is the international organisation the supranational one (such as the EU) which, significant as it may be, is inferior to State as a legal person. Without delving deeper into the composition of this hierarchy of subjects, it anspires that sovereignty, which demonstrably does not occur in vacua, is the fining characteristic of a State. As Hobbes viewed it, sovereignty is 'an artificial soul, giving life and motion to the whole body. ' 9 In light of this inextricable link between the State and sovereignty, and in light of e indispensable dependence of the former on the latter, it comes as no surprise that, late, as waves of nationalism swell across the globe, sovereignty is resurging with 'ght.

See Jean Bodin, Six Livres de la Republique (Fayard, 1986); Julain H. Franklin (ed.), Bodin: On Sovereignty (CUP, 1992). See Thomas Hobbes, Leviathan (Penguin Classics, 2017); Richard Tuck (ed.), Hobbes: Leviathan (CUP, 1996). Malcolm N. Shaw, Intemational Law 487 (6th ed., CUP, 2008) . . Note that this quote from Hobbes (supra n. 7) was cited by Antonio Cassese, States: Rise and Decline of the Primary Subjects of the Intemational Community 51, in Bardo Fass bender & Anne Peters (eds), The Oxford Handbook of the History of Intemational Law (OUP, 2012).

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Roberto Cassar THE RISE OF NATIONALISM

Similar to the concept of sovereignty, the concept of nationalism is an abstract one. As already expressed, the incorporeal nature of such a concept suggests that defining it will only be helpful in part. Accordingly, it may be more suitable to understand that; [i]n modern social science, 'nationalism' is generally used to describe ariy movement that seeks to make state boundaries correspond with those of self-proclaimed 'nations', or any doctrine that gives national interests priority over other considerations. Such uses aspire to value-neutrality. They do not assume that nationalism must have stronger affinities with some political ideologies than others, but recognize its capacity to link up with a wide range of values: internal freedom and internal control, liberation from foreign dominion and imperial self-assertion. 10

In essence, from this explanation it can be drawn that 'nationalism' is generally used to describe the will of a determinate group of people - which need not necessarily embrace a particular political ideal - to decide for itself and by itself, and to be able to do so freely. In the current political climate, this explanation of what 'nationalism' generally describes may come across as partially unexpected. The part which may come across as unexpected is that which suggests that 'nationalism' describes the apolitical, rather than the politically influenced will of a determinate group of people. This may come across as unexpected because, at present, 'nationalism' is attributed to a specific segment of the political spectrum: the far right. 11 Nowadays, 'nationalism' is viewed as the central animating feature of the far right so much so that, without it, that segment would lack an anchor. 12 Further, while 'nationalism' is attributed to that specific segment of the political spectrum, it is also linked with events which have ushered in a time of division between people and States, such as Brexit or the election of Trump as President of the

us. The concept of nationalism has thus become a contentious one and is treated in two opposite manners: for those to whom it resembles the unrest and tension of a nation, it is likely to be treated with distaste, if not hostility; for those to whom it conversely resembles the revival and reclaiming of a nation, it is likely to be treated with sympathy, if not pride. Against this present reality, it is therefore not without reason that the above explanation of what 'nationalism' generally describes may come across as unexpected

10. Erica Benner, Nationalism: Intellectual Organs 36, in John Breuilly (ed.), The Oxford Handbook of the History of Nationalism (OUP, 2013). 11. Marcel Lubbers & Marcel Coenders, Nationalistic Attitudes and Voting for the Radical Right in Europe 18(1) European Union Politics 98 (2016). Note that the authors of this compelling study depart from the notion that '[i]t has often been assessed that the radical right in contemporary Europe is nationalist in its ideology'; id., 98. This notwithstanding, pursuant to their statistical modelling, the authors conclude, inter alia, that 'people who identify stronger with the nation are somewhat more likely to vote for the radical right, but the effect is small'; id., 114. 12. Tamir Bar-On, The Radical Right and Nationalism 17-18, in Jens Rydgren (ed.), The Oxford Handbook of the Radical Right (OUP, 2018).

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§28.03

part, especially since it suggests that 'nationalism' need not have 'stronger affinities some political ideologies than others.' 13 Unexpected as this part may be, the rest of the explanation of what 'nationalism' describes - that is, the will of a people to decide for itself and by itself, and to able to do so freely - is applicable to date. In fact, by closely inspecting events such Brexit and the election of Trump as President of the US, it is possible to trace the key of 'nationalism'. In terms of Brexit, one 14 popular reason why people voted in favour of withdrawwas because they wanted decisions about the UK to be taken in the UK. 15 In terms the election of Trump as President, one 16 reason why people voted for him was 17 ii'hP,r.iltJSe they wanted government to have fewer free trade agreements. In both cases, the people chose the way they did - to withdraw from the EU or to Trump as President, as the case may be - on the pretext of 'nationalism', that is, the pretext that the governments of their respective countries should decide for and by themselves, and that they are able to do so freely. Yet why is it that these people seemingly believed that the governments of their ~respective countries had an implicit right to decide freely for themselves and by lfhernselves? Why is it that these people seemingly believed that the governments of ~eir respective countries enjoyed unrestrained and untouchable autonomy? ~ The answer is sovereignty. People wield the concept of nationalism with such i~igour not because this concept is unassailable in itself, but because it is inextricably llinked with the indomitable concept of sovereignty. With or without knowing, people lwield the concept of nationalism along with the concept of sovereignty. ~·· As people do so, the concept of sovereignty is inadvertently being reinvigorated, ~'9Jld from this, it may be inferred that the concept of nationalism and the concept of ~overeignty enjoy a symbiotic relationship of sorts. In turn, this means that, as ~ationalism spreads across the globe, the concept of sovereignty is experiencing a irenaissance.

B. Benner, supra n. 10, at 36. 14. See, for other reasons, Noah Carl, CSI Brexit 4: Reasons Why People Voted Leave or Remain https:/ /ukandeu.ac. uk/wp-content/uploads/2018/07 /CSI-Brexit-4-People %E2 %80 %99sStated-Reasons-for-Voting-Leave. pdf (accessed 23 June 2019). 15. Lord Ashcroft, EU Referendum 'How Did You Vote' Poll https://lordashcroftpolls.com/wpcontentjuploads/2016/06/How-the-UK-voted-Full-tables-1.pdf (accessed 23 June 2019). Note that, in this survey (sample size: 12,369 UK adults), 49% of the people who voted leave chose this reason as their first reason for Brexit. 16. See, for other reasons, Diana C. Mutz, Status Threat, Not Economic Hardship, Explains the 2016 Presidential Vote, 115 (19) Proceedings of the National Academy of Sciences of the United States of America E4330 (2018). 17. Ibid., at E4333. Note that Mutz based her findings on data collected by GfK Limited and by Arnerispeak/NORC at the University of Chicago.

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THE RESURGENCE OF SOVEREIGNTY IN THE REALM OF AVIATION

Once a potential explanation for the resurgence of sovereignty has been offered, it is possible to consider whether the resurgence of sovereignty may bear any implications on the air transport industry.

[A]

The Cardinal Role of Sovereignty in Aviation

At the outset, it must be made clear that ' [s] overeignty plays a central role in aviation.' 18 So central is its role in aviation that both the Paris Convention19 of1919 and the Convention on International Civil Aviation ('Chicago Convention') of 194420 explicitly declare that the contracting States thereto recognise that every State has complete and exclusive sovereignty over the airspace above its territory. 21 The International Court of Justice ('I.C.J.') has further explained that: The basic legal concept of State sovereignty in customary international law, expressed in, inter alia, Article 2, paragraph 1, of the United Nations Charter, extends to the internal waters and territorial sea of every State and to the air space above its territory. As to superjacent air space, the 1944 Chicago Convention on International Civil Aviation (Art. 1) reproduces the established principle of the complete and exclusive sovereignty of a State over the air space above its territory. [... ] The Court has no doubt that these prescriptions of treaty-law merely respond to firmly established and longstanding tenets of customary international law. 22 This pronouncement of the I.C.J. means that, even if the Paris Convention and the Chicago Convention did not explicitly declare the principle that States have complete and exclusive sovereignty over the airspace above their territory, it would nonetheless subsist since it is a cardinal principle of customary international law. 23 Turning to the meaning of this principle, the airspace of a State is thus de jure closed for each and every aircraft carrying the flag of another State. 24 The Chicago

18. Pablo Mendes de Leon, Introduction to Air Law 9 (lOth ed., Kluwer Law International, 2017). 19. Convention relating to the Regulation of Aerial Navigation ('Paris Convention'), Article 1 (13 October 1919) T.S. no. 2. 20. Convention on International Civil Aviation ('Chicago Convention'), Article 1 (7December1944) T.S. no. 102. 21. Note that Article 1 of the Paris Convention declares that every 'Power' - rather than 'State' - has complete and exclusive sovereignty over the airspace above its territory. 22. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), I. C.J. Rep. 14, 111 (1986). 23. Customary international law is 'the generalization of the practice of States'; Fisheries Case (U.K. v. Norway) Dissenting Opinion of Judge J.E. Read, l.C.J. Rep 116, 191 (1951). Note that, customary international law can be defined more accurately as 'those rules of international law that derive from and reflect a general practice accepted as law'; ILC, Second Report on Identification of Customary International Law by Michael Wood paragraph 20 (22 May 2014), A/CN.4/672. 24. Mendes de Leon, supra n. 18, at 9.

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in fact provides that no scheduled international air service may be operated or into the territory of a contracting State except with its special permission. 25 This prohibition has consequently led to a proliferation of bilateral air services !1;.,,rPf'ments (ASAs),2 6 that is, international trade agreements in which governmental of two States negotiate and regulate the performance of air services - such traffic rights, rates, capacity, and frequency - between their respective territories. 27 The Evolution of Bilateral ASAs in Relation to the Principle of Sovereignty

right after the Second World War, bilateral ASAs have evolved significantly with passage of time. 28 Bilateral AS As were conceived in the year 1946 when the US and UK produced the first ASA which was a somewhat liberal instrument and which became the model instrument for the second half of the twentieth century. 29 Some three decades later, specifically in the year 1977, bilateral ASAs underwent first noticeable evolution when the US and the UK replaced the aforementioned with a more restrictive one which, unlike its predecessor, did not become an 30 ssm11e11.1ctt.1u1.1ct1 standard. Moving to the 1990s, the second noticeable evolution of bilateral ASAs occurred the US entered into agreements, such as with the Netherlands and South Korea, 31 incorporated the concept of 'open skies' 32 and which were more liberal than their predecessor of 1977 and their ancestor of 1946. 33 Considering that bilateral ASAs embody the special permission which States scheduled international air services to operate over or into their territory, 34 and zcm.1~n1e111u~ that this special permission is the result of States enjoying complete and sovereignty over the airspace· above their territory as stipulated in Article 1 of Chicago Convention, it emanates that the bilateral ASAs are the direct consequence Article 1 of the Chicago Convention.

Chicago Convention, supra n. 20, Article 6. 026. Paul Stephen Dempsey, Introduction: Multilateral Conventions and Customary International Law S, in Paul Stephen Dempsey & Ram S. Jakhu (eds), Routledge Handbook of Public International Law (Routledge, 2017).

29. 30. 31. 32. 33. .34.

Peter P.C. Haanappel, Bilateral Air Transport Agreements - 1919-1980, 5 Maryland Journal of International Law 241 (1980); ibid. See, for a comprehensive analysis of the evolution of bilateral ASAs, Juan Carlos Salazar & Peter van Fenema, International Air Transport Agreements in Dempsey & Jakhu, supra n. 26. See also Brian F. Havel, Beyond Open Skies: A New Regime for International Aviation 111-119, 268-272 (Kluwer, 2009). Mendes de Leon, supra n. 18, at 51. Salazar & van Fenema, supra n. 28, at 267. Havel, supra n. 28, at 271-272. 'The term "Open Skies" indicates a shift form the traditional exchange of traffic rights towards a system under which regulation of competition between designated airlines forms the core element'; Mendes de Leon, supra n. 18, at 72. Salazar & van Fenema, supra n. 28, at 271. Chicago Convention, supra n. 20, Article 6.

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Once bilateral ASAs are the direct consequence of Article 1 of the Chicago Convention, it is contended that their evolution from liberal to restrictive to liberal once more did not happen independently over the years. Rather, their evolution must be the reflection, if not the byproduct, of a parallel evolution. This parallel evolution is none other than of the manner in which States have interpreted and applied the source from which bilateral ASAs stem, . that is, the principle enshrined in Article 1 of the Chicago Convention that States enjoy complete and exclusive sovereignty over the airspace above their territory. While it is acknowledged that the reasons for the evolution in the interpretation and application of this principle enshrined in Article 1 of the Chicago Convention are manifold, it is nevertheless contended that this evolution must surely be the result, to one extent or another, of international politics and relations over the years. In the wake of World War II, in Europe there was a powerful expectation that a new age had dawned, 35 and on a global scale, the newly established United Nations36 symbolised the birth ofa new world wherein peace would be effectively safeguarded.37 This optimistic political aura must have left a genetic imprint on the bilateral ASAs as they were indeed born liberal. In 1977, however, the political landscape was dramatically different since the Cold War had introduced a bipolar global system, consisting of the US on the one side and the Union of Soviet Socialist Republics on the other, 38 and had ushered in a time of political wariness due, in particular, to the persistent risk of nuclear war. 39 This state of international affairs, eventually exacerbated by an oil crisis which led to inflation in the West and which halted economic growth overnight, 40 may very well have constituted the primary environment to which the bilateral ASAs adapted towards the end of the 1970s when they evolved from the liberal to the restrictive. Moving to the 1990s, the political landscape was different once more as the Cold War came to an end and 'globalisation' 41 started to make possible an unprecedented

35. Richard Overy, Interwar, War, Postwar: Was There a Zero Hour in 1945? 63-64, in Dan Stone (ed.), The Oxford Handbook of Postwar European History (OUP, 2012). 36. The United Nations had been established instead of the failed League of Nations; Franz Cede, Historical Introduction 5-6, in Franz Cede & Lilly Sucharipa-Behrmann (eds), The United Nations: Law and Practice (Kluwer Law International, 2001). 37. Evan Luard, A History of the United Nations Vol. 1: The Years of Western Domination, 1945-1955 17 (Macmillan Press, 1982). 38. Mario Del Pero, Incompatible Universalisms: The United States, the Soviet Union, and the Beginning of the Cold War 3, in Artemy M. Kalinovsky & Craig Daigle (eds), The Routledge Handbook of the Cold War (Routledge, 2014). 39. William Burr & David Alan Rosenberg, Nuclear Competition in an Era of Stalemate, 1963-1975 88, in Melvyn P. Leffler & Odd Arne Westad (eds), The Cambridge History of the Cold War Vol. II: Crises and Detente (CUP, 2010). 40. Ivan T. Berend, A Restructured Economy: From the Oil Crisis to the Financial Crisis, 1973-2009 407, in Stone, supra n. 35. Note that, in tile seventies, the Arab oil-exporting countries introduced an oil embargo, causing the cost of a barrel of oil to jump from 2.70 USD in 1973 to 9.76 USD by 1974, and then to 12 USD. Six years later a second oil crisis followed and, between 1973 and 1980, oil prices increased tenfold; id. 41. Note that, herein, this term is used in the conventional sense in that it refers to 'heightened transnational interconnections and interdependencies, propelled by intensified global trade, production, and finance, new information and communication technologies, and looming crises

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hapter 28: The Resurgence of Sovereignty Versus the Freedom of Flight §28.04[C] gree of financial and economic interdependence and growth. 42 This era, marked in articular by the unfurling of 'globalisation' ,43 must have stimulated the bilateral ASAs evolve again, this time from the restrictive to the liberal. From this evolution, two facts transpire. First, States have always retained rnplete and exclusive sovereignty over the airspace above their territory since they ave constantly entered into bilateral AS As by means of which they granted scheduled ternational air services special permission to operate over or into their territory. Second, although States have always retained complete and exclusive sover·gnty over the airspace above their territory, they have interpreted and applied the rnpleteness and exclusivity of their sovereignty differently over time, particularly in rrespondence with the motion of global politics. In 1946 and in the 1990s, the States involved seemingly interpreted and applied e principle of sovereignty under Article 1 of the Chicago Convention mellowly since e bilateral ASAs were liberal in both instances. Yet in 1977, the same principle was emingly interpreted and applied tightly by the States involved since the bilateral SAs took a turn to the restrictive. Against this evolutive backdrop, the question which thus arises is whether the urrent political climate, represented by the rise of nationalism and the resurgence of vereignty, is likely to bring about another alteration in the interpretation and pplication of the principle of complete and exclusive sovereignty enshrined in Article 1 of the Chicago Convention.

[C]

The Future of Bilateral ASAs in Relation to the Principle of Sovereignty

ased on the analysis undertaken thus far, the intuitive reply to the preceding question .is in the affirmative. The rise of nationalism and the resurgence of sovereignty ought to .lead States to alter their interpretation and application of the principle of complete and xclusive sovereignty over the airspace above their territory. An example which may be utilised to substantiate this intuitive reply is the relatively recent 'Qatar-Gulf Crisis' 44 wherein, on 5 June 2017, Bahrain, Saudi Arabia, of the global commons'; Christian Reus-Smith & Tim Dunne, The Globalization of International Society 30, in Tim Dunne & Christian Reus-Smith (eds), The Globalization of International Society (OUP, 2017). 42. Kofi Annan, The Politics of Globalization (address to Harvard University, 17 September 1998) https://academy.wcfia.harvard.edu/politics-globalization-hon-kofi-annan (accessed 23 June 2019). 43. Note that, although 'globalisation' did not begin in the 1990s, the view herein embraced is that 'globalisation' became a 'truly global phenomenon' at that time; Peter Vanhm, A Brief History of Globalization (World Economic Forum, 17 January 2019) https://www.weforum.org/agenda/ 2019 /01/how-globalization-4-0-fits-into-the-history-of-globalization/ (accessed 23 June 2019). See, for more on when 'globalisation' is likely to have begun, Kevin H. O'Rourke & Jeffrey G. Williamson, When Did Globalisation Begin?, 6(1) European Review of Economic History 23 (2002). 44. See, for an overview of the crisis, Al Jazeera, Qatar-Gulf Crisis: Your Questions Answered (5 December 2017) https://www.aljazeera.com/indepth/features/2017/06/qatar-gulf-crisisquestions-answered-170606103033599.htmlitblockading-countries (accessed 23 June 2019).

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the United Arab Emirates, and Egypt severed diplomatic relations with Qatar and imposed a land, sea, and air embargo on it. 45 This example may be utilised because it demonstrates that, from the day of the embargo onwards, the blockading quartet has interpreted and applied the principle of sovereignty under Article 1 of the Chicago Convention tightly, completely closing its airspace to Qatar despite the foreseeable strain which that closure would have caused the latter, 46 as it eventually did. 47 Although the Qatar-Gulf Crisis may demonstrate an alteration in the interpretation and application of the principle of sovereignty under Article 1 of the Chicago Convention, it is not the most suitable example to answer the above-stated question since it does not relate to the interpretation and application of the principle of sovereignty in the context of bilateral ASAs. A better example to this end is the new ASA between the UK and the US. 48 On 28 November 2018, these two States concluded an agreement with the intention to 'maintain the existing open access to markets and maximize benefits for consumers, airlines, labor, businesses and communities on both sides of the Atlantic.' 49 Effectively, the UK and the US have entered into a new 'open skies' agreement.so This means that the UK and the US have interpreted and applied the principle of sovereignty under Article 1 of the Chicago Convention mellowly, something which, on the basis of the previous analyses of the evolution of bilateral ASAs 51 and the rise of nationalism, 52 seems quite illogical at first glance. Indeed, on the basis of those analyses, one would have expected the UK and (more so) the US to start interpreting and applying the principle of complete and exclusive sovereignty enshrined in Article 1 of the Chicago Convention tightly, similar to what they did in 1977 when they entered into a more restrictive ASA. Illogical as it may initially seem, this mellow interpretation and application of the principle of sovereignty in aviation by the UK and the US swiftly makes sense when it is coupled with the fact that the new liberal agreement between the UK and the US protects the GBP 50 billion (or 65 billion USD) trading relationship between them which is supported by air transport. 53 45. Ibid. 46. See, for a treatise on the legality of the ban on Qatari flights, S.G. Sreejith, Legality of the GulfBan on Qatari Flights: State Sovereignty at Crossroads, 43(2) Air & Space Law 191 (2018). 47. Note that, toward the end of the year 2018, Qatar Airways (the national air carrier of Qatar) attributed a loss of more than $69 to the blockade imposed on it by the abovementioned quartet; Al Jazeera, Qatar Airways Reports $69m Loss Amid Gulf Blockade (19 September 2018) https: I /www. alj azeera. com/news/2018 /09 I qatar-airways-reports-69m-loss-gulf-blockade-180 919053048255.html (accessed 23 June 2019). 48. See, for the full air services agreement, U.S. Department of State, U.S.-UK Air Transport Agreement of November 28, 2018 (28 November 2018) https://www.state.gov/u-s-uk-airtransport-agreement-of-november-28-2018/ (accessed 23 June 2019). 49. Ibid., preambular paragraph 7. SO. UK Department of Transport, UK and US Agree New Open Skies Arrangements (28 November 2018) https:/ /www.gov.uk/ governmentjnews/uk-and-us-agree-new-open-skies-arrangements (accessed 23 June 2019). 51. Snpra section §28. 04 [B]. 52. Supra section §28.03. 53. UK Department of Transport, supra n. SO (emphasis added).

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§28.05

Not only does it make sense, but, by recalling that 'nationalism' generally describes the will of a group of people to decide, among other things, for itself, this mellow interpretation and application of the principle of sovereignty under Article 1 of the Chicago Convention by the UK and the US actually aligns with the rise of nationalism therein. For with this mellow interpretation and application of the principle of sovereignty under Article 1 of the Chicago Convention, the UK and the US have entered into a Jiberal agreement which safeguards the national economic interests of both, namely their GBP 50 billion (or 65 billion USD) trading relationship. Ironically, therefore, in the case of the UK and the US, the rise of nationalism has actually impeded the principle of sovereignty enshrined in Article 1 of the Chicago Convention from being interpreted and applied tightly since such an interpretation and application would have potentially harmed the national interests of both States. Using this analysis of the new 'open skies' agreement between the UK and the US as a point of reference, it may be derived that, although nationalism and the concept of sovereignty may enjoy a symbiotic relationship of sorts, this relationship ceases to function successfully when it enters the realm of aviation. §28.05

CONCLUSION

It is true that nationalism appears to be on a global rise. It is also true that, as nationalism rises, the concept of sovereignty resurges to the forefront. It is not

necessarily true, however, that the rise of nationalism and the resurgence of the concept of sovereignty shall pose a grave threat to the air transport industry. This is because, even if States 'are increasingly overcome by nationalism, they will most likely continue to enter into liberal bilateral ASAs and retain a mellow interpretation and application of the principle of complete and exclusive sovereignty over the airspace above their territory enshrined in Article 1 of the Chicago Convention. A principal reason for this is that the air transport industry is a financial powerhouse: air transport is significantly boosting economic development worldwide .and governments are set to gain substantially from the performance of the industry as air carriers and their customers are forecast to generate USD 136 billion in tax revenues this year. 54 In light of this economic ability of the air transport industry, States concerned with ensuring that their national interests are secured might actually tum to aviation to do so, as the UK and the US recently did. It is therefore to this end that States will most likely retain a mellow interpretation and application of the principle of sovereignty under Article 1 of the Chicago Convention. In all likelihood, the rise of nationalism and the resurgence of sovereignty will not harm the air transport industry, and as it stands, Article 1 of the Chicago Convention will not impede the industry from flourishing further. 54. IATA, Economic Performance of the Airline Industry 2 (End-Year Report, 12 December 2018) https://www.iata.org/publications/economics/reports/industry-econ-performance/iata-econ omic-performance-of-the-industry-end-year-2018-report.pdf (accessed 23 June 2019).

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CHAPTER

29

The Future of Sovereignty in International Civil Aviation Brendan Lord

This paper will discuss the question of what externalities will shape and develop sovereignty in the future and is split into two overlapping parts. The first part analyses the forces that have developed sovereignty since 1944 to the present day and considers the effect of those same forces in shaping sovereignty in the future. The second part provides some of the factors affecting the longer-term outlook of the issue of sovereignty in international civil aviation by considering one of its greatest challenges - the vertical limit and the intersection of air law and space law - and provides some observations on how we can be led to a more desirable outcome when these future issues of sovereignty come to the fore. This paper concludes that sovereignty has ample room for growth, will deliver up difficult questions and that lessons from the past can be a useful means to pre-empt such difficulties and respond appropriately.

§29.01

TECHNOLOGY AND THE LAW

It is symptomatic of legal systems to assess the efficacy of existing rules and their relevance to contemporary values. 1 What is a permissible development in law is contingent, in part, on the various external influences and social norms that are initiating the change. 2 For large swathes of the twenty-first century, regulators have

1. Benjamin Cardozo, 'Nature of Judicial Process', in: Margaret Hall (ed.) Selected Writings of Benjamin Cardozo (Fallon Publications, 1980) 153, 155. 2. William Allen, 'Our Schizophrenic Conception of the Business Corporation' (1992) 14 Cardozo Law Review 261.

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been faced with the difficulty of rapidly changing technological conditions. 3 The law is caught between following technological advancements, which allows developments to run for some time untrammelled from regulation, or being engaged proactively and pre-emptively, which risks stifling innovation through overly restrictive regulation.4 The solution to the problem of how the law is to maintain equilibrium with evolving technology is far from absolute, yet it is the exact difficulty faced by regulators in regards to civil aviation. 5 This regulatory complexity is heightened when viewed from the broader abstraction of the various ancillary bodies of law that now bear down upon air law. Air law is increasingly intertwined with 'constitutional law, trade law, competition law, EU law, administrative law, civil law, corporate and commercial law criminal law, consumer protection law, environmental law, labor law and tax law.'6 s~ heavy is the impact of aerospace technology upon the regulators and the law, it affects our understanding of legal maxims, such as sovereignty, which for so long has provided the fundamental maxim of the nation State. 7 A question directed to the future of sovereignty in international civil aviation is a complicated question, as it is necessarily a predictive exercise. The precise nature of aviation developments, let alone their political, military and economic implications is largely a matter of guesswork, but yet - 'since we cannot do without policy, conjecture we must.' 8 §29.02

[A]

POLITICAL CONSIDERATIONS OF SOVEREIGNTY

Factors Affecting the Concept of Sovereignty

The near-term advance of sovereignty is a difficult prediction for there are the sum of all kinds of sets of experiences to be gained from legal, cultural, environmental, industrial, financial, social and technological developments that affect the operative elements of civil aviation. Despite being a legal axiom, the exercise of sovereignty- the practical application of sovereign power - is subject to the vicissitudes of socio-political developments, and thereby subject to change. 9 To alleviate this unpredictability, the past can be used as a guide for developing presuppositions that are expected to continue, and thereby ground our prediction on some basis of facts, serving as governing truths of the conduct of aviation activities. Mapping out the forces conducive to these changes allows for a more reliable, yet still uncertain, estimate of how sovereignty will be exercised and subsequently shape the legal environment around it. 3. David Grant & Lyria Moses, Techrwlogy and the Trajectory of Myth (Elgar, 2017) 191. 4. Charles Stotler, 'The Effects of the Fragmentation of International Law on Aerospace Regulation' (2015) Proceedings of the International Institute of Space Law 53, 65. 5. Gary Marchant et al. (eds), The Growing Gap Between Emerging Technologies and Legal-Ethical Oversight (Springer, 2011). 6. Pablo Mendes de Leon, Introduction to Air Law (Kluwer International, lOth ed., 2017) 2. 7. Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies, signed at Munster on 24 October 1648. 8. Joseph Goldsen, Outer Space in World Politics (Frederick Praeger, 1963) 110. 9. Thomas Hobbes, Leviathan: Or the Matter, Forme and Power of a Commonwealth Ecclesiastical and Civil (1651) 239.

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Through ascertaining the general path of development, the logical next steps ecome clearer although not always stable and predictable: 'our tendency to construct d believe coherent narratives of the past makes it difficult for us to accept the limits four forecasting ability ... The illusion that we understand the past fosters overcon"dence in our ability to predict the future.' 10 [B]

Sovereignty Circa 1944

he first set of rules for international aviation regulation agreed to at Paris on 13 October 1919, provided fundamental axioms that were maintained in the Chicago Convention: 11 complete and exclusive sovereignty and control over airspace and the 'recognition for the right of transit without landing for international traffic between two points outside the territory of a contracting State.' 12 These two conventions begin with the 'unequivocal proclamation of the principle of sovereignty' which is the foundation upon which the rules of the air have been built. 13 Article 1 of the Chicago Convention provides the overriding principle, the gmndnorm, from which all others follow .14 This article prohibits any international air service unless the normative dictates of Article 6 are followed. What are commonly called 'freedoms of the air' are actually economic rights that prevent otherwise legitimate participants in aviation markets from engaging in air services. 15 The political consequences of this have been significant as the de jure closure of airspace to foreign aircraft acts as a prima face limitation on trade and transport: 16 'in a world divided into closed airspaces, the grant of any transit or traffic right must be viewed as a privilege.' 17 The boundaries erected by the sovereign can only be removed at a price - typically a reciprocal exchange of rights in by way of an Air Services Agreement or diplomatic letter. 18 The complete and exclusive control over airspace is therefore imbued with an economic quality and this quality enhances the political

10. Nassim Taleb, The Black Swan (Random House, 2007). ll. Convention on International Civil Aviation, opened for signature 7 December 1944, entered into force 4 April 1947, 15 UNTS 295.

12. Pietro Benintendi, 'Code-sharing in the Air Service Agreements: A Critical Analysis of the Creation of Another "Un-Freedom" of the Air' (2018) 3 ALLANZ Aviation Briefs. 13. Mendes de Leon, above n 6; Convention Relating to the Regulation of Aerial Navigation, League of Nations Treaties Series, 13 October 1919, Article I: 'The High Contracting Parties recognise that every power has complete and exclusive sovereignty over the air space above its territory', whereas Article 1 of the Chicago Convention stipulates that: 'The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory'; see on this subject, Peter Haanappel, The Law and Policy of Air Space and Outer Space: A Comparative Approach (Kluwer, 2003) 15-23. 14. Hans Kelsen, General Theory of Law and State (Harvard University Press, 1945). IS. Henri Wassenbergh, 'International Air Transport: Regulatory Approaches in the Nineties' (1992) 17 Air Law 75.

16. Mendes de Leon, above n 6. 17. Pablo Mendes de Leon, Cabotage in Air Transport Regulation (Martinus Nijhoff Publishers, 1992) 44.

18. Bin Cheng, The Law of International Air Transport (Stevens and Sons, 1962) 17.

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pressure to ensure that airspaces are utilised to the best advantage of a State. 19 A State that wishes to be more protective of its own airspace will exchange low level of traffic rights whilst more liberal States will provide for high level of traffic rights through open skies agreements. 20 It is uncontroversial that the system of exchange orchestrated under Article 6 of the Chicago Convention, has developed from being a largely protectionist_ exercise of rights to one recognising the mutual benefit between sovereign States in allowing their airspace to be traversed for purposes of trade and transport. 21 The nationalistic view is subverted by engendering an inevitable reduction of sovereignty in recognition of the global public interest. 22 Here emerges the first presupposition for predicting the future of sovereignty: the outcome from an exercise of sovereign rights under Article 1 and Article 6 of the Chicago Convention in 1944 is a different practical legal outcome compared to the exercising of the same sovereign rights in the contemporary environment. The practical outcome of sovereignty, therefore, has changed, despite the authority of sovereign powers remaining constant and indelible. Understanding the forces that have led to this change in practical outcomes - which has allowed for the liberal model of aviation markets to emerge as the dominant model for the exchange of traffic rights - allows for a more educated guess on the practical application of sovereignty in the future. 23

[CJ

The Developmental Forces of Sovereignty

[1]

From Protectionism to Open Markets under State Sovereignty

The burgeoning development of the international legal consciousness, spurred by legal pluralism, has rendered the exercise of sovereignty today as involving greater interactions between sovereign States. Cross-border regulatory competition is high in a globalised world with information excess and accessibility. Regulatory competition involves ceding the drafting of efficient laws to the self-regulatory capacity of the legal market, which acts as the catalyst in obtaining the laws 'actual and/or ideal function.' 24 Lawmakers treat law as a product, 25 and engage

19. Arnold McNair, The Law of the Air (Stevens and Sons, 1953) 8; Marek Zylicz, International Air Transport Law (Springer, 1992) 59; Paul Dempsey, Public International Air Law (McGill University, 2008) 28. 20. Alan Dobson &Joseph McKinney, 'Sovereignty Politics and US' (2009) 74 Journal of Air Law and Commerce 532. 21. Cheng, above n 18, 123. 22. Rowland Fixel, On the Law of Aviation (Charlottesville Virginia: The Michie Company, 1928). 23. Brian Havel, Beyond Open Skies: A New Regime for International Aviation (Kluwer Law International, 2nd ed., 2009). 24. Grant & Lyria, above n 3; Richard Posner, Economic Analysis of Law (Little Brown and Company, 1973) 322. 25. Pierre Larouche et al. (eds), National Legal Systems and Globalisation (Springer, 2013).

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in a process of trial and error by remoulding and shifting policy objectives in-line with market forces. 26 Through competition to maintain market share, a pool of regulatory frameworks develop, around which the relevant actors can coalesce, 27 This development is a precursor to convergence, as when the effective legal solution is discovered, it becomes common knowledge and replicated in competing systems. 28 A multitude of regulatory frameworks competing for adherents does introduce some risks: externalities can occur, where the lower standards of one jurisdiction negatively affects others; or it can lead to a race-to-the-bottom as a result of coordinated and 'systematic lowering of regulatory standards'; or it can establish path dependencies, which refer to the institutionalising of incorrect legal responses within the 'shared knowledge of the legal community. ' 29 Notwithstanding these concerns, the process of regulatory competition - where . market forces dictate the pace of regulatory change and development is essential in responding to technology. Regulatory competition enables for a pluralistic approach, and the existence of different solutions 'can enable a learning process towards the discovery of the most appropriate one.' 30 This process 'stimulates innovation' and creates 'competitive, efficient and qualitative laws' 31 but requires, at its core, regulators willing to proffer divergent norms to the marketplace of legal ideas. Heterogeneous as opposed to homogenous rules, therefore, can better produce a corpus of law gravitating to changes in technology. 32 When this framework of a competitive, market-driven regulatory environment is applied to sovereignty in international civil aviation, it is clear that the past seventy-five years of regulatory competition under the Chicago Convention have left us with a regulatory model far different from that ordainedin 1944. This is the case even though sovereignty has not changed, but the manner in which it is exercised has. In order to remain competitive and access the market, States have agreed to exercise their absolute and indivisible authority, paradoxically, to reduce their own sovereignty by increasingly opening their skies. So varied is this position to the pre-Chicago Convention means of exercising sovereignty, descriptions of such an environment are seldom recognisable in the contemporary world, excepting, perhaps, those with a bent to cynicism: All scheduled air services were negotiated bilaterally and a very complex global network of internal, colonial, and international services evolved. It was more a patchwork quilt, as each state protected its domestic market and guarded its colonial possessions. Competition increased along with state subsidies; territorial 26. Roger Van Den Bergh, 'Towards an Institutional Legal Framework for Regulatory Competition in Europe' (2001) 53(4) Kyklos 438. 27. Ibid. 28. Larouche, above n 25, 30. 29. Ibid., 14. 30. Ibid., 22.

31. Dimitri Linden, 'The Impact of National Space Legislation on Private Space Undertakings: Regulatory Competition vs. Harmonization' (2016) 8(1) Jo11mal of Science Policy & Governance. 32. Paul Berman, 'A Pluralist Approach to International Law' (2007} 32(2) Yale Jo11mal of International Law 301, 316.

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sovereignty was protected jealously and used to advantage; rivalries intensified, both between airlines and between the states they represented. 33

Today, you can travel from Lincoln, Nebraska USA to Paris on a single flight.34 On this basis, the voluntary reduction of national competencies in the exercise of sovereign powers by States for purposes of international civil aviation is the direct result of regulatory competition from a marketplace of competing legal ideas. Yet it is precisely because this is only a development of the exercise of sovereignty and not a mandate enshrined in the text, that the exchange of rights under the Chicago Convention - based upon past experiences - will continue change, as regulators seek to develop this body of law towards more efficient, economic and practical ends. Although it is difficult to predict the position at the end of the next seventy-five years of the Chicago Convention, or even for the 1OOth anniversary, or perhaps even as short-term as the year 2030, it appears that the essential next steps will involve multilateral systems, open aviation areas, shared administrative structures for personnel and licensing, and increased uniformity in safety regulations. 35 Each of these developments can only increase through a correlative decline in sovereignty as each of these areas originally vests authority in the sovereign. [2]

Regional Engagements and Agencies

On the multilateral exchange of rights, regionalisation or associations that involve a consortium of geographic States directly impacts upon the fundamental basis of the core tenet of international air law: sovereignty. 36 Economic unions such as the European Union (EU) allow for integrated traffic markets with the consequent abolishment of bilateral exchange of rights and routes. 37 Arrangements such as the African Union, Common Market for Eastern and Southern Africa the Tasman Pact, Association of Southeast Asian Nations arrangements and Mercosur and the Andean Pact are developing with the outcome, by consequence or design, reducing the prominence of the bilateral exchange, as these associations will negotiate as blocs. 38 Although commercial multilateralism with universal reach remained an elusive goal in 1944, the tilt to regionalism appears to be leading us to this outcome. 39

33. David Mackenzie, ICAO - A history of the International Civil Aviation Organisation (University of Toronto Press, 2010} 19. 34. Havel, above n 25. 35. Max Planck Encyclopaedia of Public International Law, Chicago Convention (1944) (Oxford Public International Law, 2014) 21. 36. Max Planck Encyclopaedia of Public International Law, Air Law (Oxford Public International Law, 2016). 37. EU Regulation 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast) (OJ 2008 L 293, 3) repealed Regulation No 2407 /92 with effect from 1 November 2008, Article 15. 38. And with greater negotiating power, as traffic rights are exchanged like commodities, a parcel of rights provides greater utility within the negotiators toolset. 39. Alan Dobson, A History of International Civil Aviation: From Its Origins Through Transfonnative Evolution (Rutledge, 2017) 52.

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Commercial multilateralism will have to address ownership and control requirements, as designated carriers will belong to unions as an economic bloc. 40 This may even be a catalyst for abolishing the requirements altogether. 41 Although there will be 0 procedural difference in the normative rights granted to each State of an association, such developments may 'precede the possible transfer of the economic aspects of air transport to the World Trade Organization (WTO), whereas ICAO keeps control of safety, security and the environment on a multilateral basis.' 42

{3]

Responsibility for Safety under State Responsibility

On the existence of regional agencies, the largely technical areas of the Chicago Convention - being those ancillary areas of State responsibility - will too be subject to change. States are responsible for safety supervision under Article 12, which provides that States ensure that aircraft flying over their territory or carrying their nationality mark shall comply with the rules and regulations governing flight there in force, and each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under the Convention. States are also responsible for issuing airworthiness and personnel licences under Articles 31 and 32. The State must provide such aircraft with a certificate of airworthiness, and issue certificates of competency and licences for pilots and flight crew on such aircraft. In the same manner that rights may be exchanged in a multilateral system, regional safety agencies with legal, financial and administrative autonomy stand to emerge to carry out tasks currently undertaken by States. The benefits of this development are evident with the European Aviation Safety Agency (EASA), which undertakes otherwise common duties on behalf of its members, to render efficiency and safety at a higher level, than if the same tasks were undertaken by the States. However, while EASA exercises delegated national competencies in the field of safety, States remain ultimately responsible for aviation safety under the Chicago Convention. [4]

The Provision of Air Navigation Services

The vastly different approaches to Air Navigation Services seventy-five years on from 1944 positions it as another area subject to change. It is a natural corollary of a nation

40. See, for example, EU Regulation 1008/2008, Article 4: Member States and/or nationals of Member States own more than 50% of the undertaking and effectively control it, whether directly or indirectly through one or more intermediate undertakings, except as provided for in an agreement with a third country to which the Community is a party. The two elements ownership in excess of 50% (50% plus one share of the capital of the undertaking concerned) as well as effective control - by Member States or their nationals are distinct and cumulative, i.e., both have to be met at all times, otherwise the airline is no longer entitled to hold a license and take advantage of the liberalisation of the EU's aviation market. 41. Havel, above n 23. 42. Brian Havel & Gabriel Sanchez, 'Restoring Global Aviation's "Cosmopolitan mentalite"' (2011) 29(1) Boston University International Law Journal 1.

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exercising sovereignty over airspace that they must have in place a system to monitor and control those aircraft that seek to use it. Article 28 of the Chicago Convention provides that it is the obligation of States to provide Air Navigation Services: Each contracting State undertakes, so far as it may find practicable, to: provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention. 43

Historically, these services were funded by public taxation as a duty of the sovereign to provide public services within the limits of its national boundaries. 44 This approach helped ensure the fragmented development of airspace, confining air navigation facilities in national boundaries and making the process of air navigation services and air traffic management (ATM) more difficult and less productive than is an enterprise otherwise not bounded by borders. As a result, although an area of State responsibility, delegation of this responsibility has become a contemporary norm. 45 International Civil Aviation Organization (ICAO) Assembly Resolution A37-1S states that a 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, but this act nonetheless involves a transfer of responsibility ICA0. 46 Privatisation has assisted in the technical modernising of equipment and procedures and introduced commercial financing principles to Air Navigation Service operations. 47 This introduces some uncertainties as regards civil liability. 48 The provision of air navigation services, however, is far from settled, as it involves States ceding the decision-making powers over their exclusive airspace, to an externalised institution for the purposes of ATM, as opposed to a more readily controllable private institution within national boundaries. 49 Sovereignty is therefore

43. There are ancillary Articles related to Air Navigation, which are non-exhaustively: Article 22 States must adopt all practicable measures to facilitate and expedite navigation by aircraft and prevent unnecessary delays; Annex 11 pertains to the establishment of airspace units and services necessary to promote a safe, orderly and expeditious flow of air traffic. Its purpose, together with Annex 2, is to ensure that flying on international air routes is carried out under uniform conditions designed to improve the safety and efficiency of air operation; Article 68 allows each contracting State to designate the route to be followed within its territory by any international air service and the airports which any such service may use; Article 5 allows States to subscribe specific route for non-scheduled flights. 44. Francis Shubert, An Introduction to Air Navigation Services: From Convention Air Traffic Control to CNS/ATM (IASL, McGill University, 2014). 45. Erwin von den Steinen, National Interest and International Aviation (Wolters Kluwer Legal, 2006) 71. 46. 'Consolidated statement of continuing !CAO policies and associated practices related specifically to air navigation' Resolutions Adopted by the Assembly - 37th Session (2010). 47. Anthony Adams, 'The Effects of Air Traffic Control Privitsation on Operating Cost and Flight Safety' (2005) 14(3) Journal of Aviation/Aerospace Education & Research 21. 48. Chrystel Erotokritou, 'The Legal Liability of Air Traffic Controllers' (2012) 4(2) Inquiries Journal/Student Pulse. 49. Whilst it appears a simple statement to integrate skies, the lengthy regulatory framework that firstly needs to be unbundled, and secondly reorganised so as to permit external managements is a significant challenge. The Single European Sky (SES) program is a package of regulations

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pitted against the efficiency afforded by governance of ATM through market principles . .Although the pushback in this area by States is perhaps greater than it is in the area of safety, the future is shaping to be one of further delegation and therefore a reduction in vereignty in service of an international public interest.

[5}

The Establishment of Uniform Rules and Procedures

The final example of the Chicago Convention that is inextricably tied to the sovereignty of the State is under the executive functions of Article 37. States are obliged to collaborate in securing the high practicable degree of uniformity in regulations, standards, procedures, and organisation in relation to aircraft, personal, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. Edward Warner, the first president of ICAO stated on the role of uniform procedures, that: Aircraft over most of the earth are already flown in accordance with ICAOs rules of the Air. Their personnel are begging to be licensed to ICAO's standards ... The meteorological forecasts given are drawn to an ICAO specification. After the flight begins, communication between aircraft and the ground is conduct in ICAOadopted codes and in !CAO-specified phraseology. 50

{6]

Balancing Uniform Rulemaking with National Competencies for Their Implementation

Article 12 and Article 37 result in a perennial abandonment of State competencies by way of deferring to ICAO to make uniform rules and norms: the sovereignty of a State to enact their own rules and norms concerning their airspace as these norms are

intended to improve the European air traffic control system and address the lack of capacity of the existing system which may be a risk to the future growth of air transport in Europe. The first focus to improve EU Air economy is to address acute infrastructure deficiencies - and ATM was regarded as an inefficient mess inhibiting the creation of a pan-European Airspace (Framework Regulation, preamble 13). Optimum and efficient use of airspace can only be possible if the requirements of all users are taken into account and represented in the whole development. The SES represents a shift away from intergovernmental practice towards and EU Framework. The creation of the SES cannot be achieved at the transnational scale of action: it is better achieved at Community level. The legislative framework of four basic regulations (SES Package 1) consisted of: the framework regulation - EU Regulation 549/2004, laying down the framework for the creation of the single European sky; the service provision: Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004, on the provision of air navigation services in the single European sky; the airspace regulation - Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky; and Regulation (EC) No 552/2004 of the European Parliament and of the Council of 10 March 2004 on the interoperability of the European ATM network. The framework was revised and extended in SES Package 2: Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 21 October 2009 amending Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004 and (EC) No 552/2004 in order to improve the performance and sustainability of the European aviation system. SO. Dobson, above n 39, 60.

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formalised externally. 51 This is a necessary achievement of the Chicago Convention, as international carriage by air is subject to a plethora of foreign elements. Each legal culture is the result of various background forces within which thought takes place and the principles and ethos of each community reflect localised preferences. 52 Th~ 'common' is differential and divergence is inevitable, referring to differences in substantive or procedural rules dealing with the same subject matter. 53 The legal regime for air law requires broad international unification and standardisation to regulate the various social relations present and to mitigate the intricate and complex problems that may arise. 54 The concerted push towards a common regulatory framework is a spirited goal of Chicago Convention, but it has always and will always come up against two factors: (1) by design, any unification is non-exhaustive, relinquishing many procedural problems to municipal laws; 55 and (2) the substantive legal rules can be adopted or transplanted unaltered, but they are subject to changes in formulations. 56 The first is a practical problem to uniformity, as treaties cannot address the idiosyncrasies of national systems and must mandate the application of national laws. The second is theoretical, for barring differences of the authentic language of the treaties and that of the respective municipal systems, embedded within the national legal codes are the same concepts: - and the language is to be given common effect. Yet because States are free to interpret the text of the treaties and implement obligations accordingly, at the preliminary stage of assimilation, norms are incorporated within different interpretive communities. These differences lead to the haphazard embodying of terms with different values. 57 The background context - the economic, social, political and technological culture of each State - leads to a difference in scope and goals reflecting the practical considerations of the State's activity. Under Article 12 and Article 37, there stands to be great strides made in regard to uniformity in the future.

Sl. The Council adopts Standards and Recommended Practices (SARPS) on issues affecting the safety and efficiency of air navigation, and for convenience, designates them as Annexes to the Chicago Convention. SARPs become effective as Annexes to the Convention (Article S4(L)) not less than three months after they are approved by a two-thirds vote of the Council (Article 90(a)), unless during that period they are disapproved by a majority of the members of the ICAO General Assembly (Article 90(b)).Typically, they are not issued until after extensive consultation with Member States, and consensus is achieved, a process that takes two years or longer. S2. Larouche, above n 2S. S3. Stotler, above n 4. S4. Michael Milde, The Problems of Liabilities in International Carriage by Air: A Study in Private International Law (University Karlova Press, 1963) 14-lS. SS. Ibid., 23. S6. Alan Watson, Legal Transplants: An Approach to Comparative Law (University of Georgia Press, 1993) 20. S7. Daniel Goedhuis, 'Some Suggestions Regarding the Interpretation and Implementation of the OST' (1981) 19 Columbia Journal of Transnational Law 213.

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Uniformity is a type of equality, and equality is the highest social value a society should pursue - there is no noble nor purer ambition of the law. 58 As uniformity heralds certainty of law, it develops a stable legal regime that definitively determines the legal rights and duties of parties concerned. Uniformity remains an overarching ideological ambition of the Chicago Convention, and it is forever competing against independent, unilateral action of the State by way of sovereignty. This quest for uniformity will continue, and every agreement based upon cooperation and standardisation, or emulation, or harmonisation relating to civil aviation, is one step closer to the jnherent ideal of the Chicago Convention as a truly common system of international aviation rules. 59 [7]

Concluding Remark

Since the genesis of international civil aviation, the sovereignty axiom has allowed for States to exercise complete and exclusive contrive over their airspace. The peculiar set of historical circumstances preceding the Chicago Convention led to the value of sovereignty being provided a heavyweight in the decision-making calculus. The concept has undergone significant transformations, in part through an ad hoe yet concerted and continued process of regulatory competition to create an efficient, effective and fair system of global trade and transport. These transformations have resulted in a sustained period of interactions between States where the ideology of a common benefit has prevailed. 60 The logical deduction from this position is that sovereignty will continue to wane in the pursuit of those common benefits that must invariably result in a State reducing their national competencies. §29.03

[A]

THE RELATIONSHIP BETWEEN SOVEREIGNTY AND TECHNOLOGY

Basic Elements of Sovereignty

The sovereignty axiom from which absolute and indivisible authority of the State develops is reflected in the constitutive text of public international law - the United Nations (UN) Charter. 61 The rights of sovereigns, logically contained in the meaning of sovereignty itself, entails that a State cannot exercise sovereignty without first having the 'exclusive, supreme and inalienable legal authority to exercise power within their area of governance.' 62

58. Jack Lively, The Social and Political Thought of Alexis de Tocqueville (Clarendon Press, 1962) 4. 59. Michael Pearson & Daniel Riley, Foundations of Aviation Law (Ashgate Publishing Company, 2015) 308. 60. Havel, above n 23. 61. Charter of the United Nations, opened for signature 26 June 1945, entered into force 24 October 1945, Article 2(1), (7). 62. Stefan Kaiser, 'Sovereignty in the Air: From National Security to the Single European Sky'(2008) 35(1) Annals of Air and Space Law 154.

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Despite agreement that sovereignty imparts rights, there are intricate differences in the manner in which sovereign powers exercise their rights. In a world of a single sovereign State, there would be no need to worry about the intricate difference in the exercise of sovereign rights, for there would only be one sovereign, a Leviathan State capable of dictating the manner in which power is exercised. But no such world presently exists, and therefore the position we inhabit is one where many independent sovereigns engage in sovereignty - and this system of interacting States elicits the need for a geographical demarcation of territorial non-interference: the boundaries within which the State exercises sovereign control.

[BJ

Defining Sovereignty in a Territorial Sense

[1]

In Relation to the Law of the Sea

States are constrained by limits that demarcate where one sovereign States exercise of rights will end, and another begins. Hugo Grotius's Mare Libemm63 shaped the high seas as a barrier to the exercise of sovereign rights, and in our system of public international law this has been formalised by the UN Convention on the Law of the Seas. 64 This Convention provides for a 12 nautical mile territorial limit within which a State can exercise sovereignty over adjacent seas. 65 Where States straddle the same land, the precise point where the competing sovereign powers converge is often less clear, but the principle that this point indicates a limit is rarely disputed. 66 Airspace above national territory and territorial waters, excluding exclusive economic zones, form part of the exclusive sovereignty of a State under international air law. 67 As the area beginning 12 nautical miles from the coast is res communis, the airspace above the high seas is not subject to the sovereignty of any State, 68 which is reaffirmed by Article 12 of the Chicago Convention which states that over the high seas, ICAO rules will apply, and in general, the law of the state of registration of the aircraft will apply during the flight. 69 The horizontal limit is settled insofar as it is agreed that such a limit must, somewhere, exist, thereby reaffirming that the limit of the territory is the limit of the sovereign's power. 70

63. Mare Liberum, sive de jure quad Batavis competit ad Indicana commercia dissertatio (1609). 64. Convention on the Law of the Seas, opened for signature 10 December 1982, entered into force 16 November 1994, 1883 UNTS 3, 397 (167 State ratifications). 65. Ibid., Article 3. 66. See for example Territorial and Maritime Dispute (Nicaragua v. Colombia) International Court of Justice (2012). 67. Chicago Convention, Article 2. 68. Convention on the High Seas, opened for signature 29 April 1958, entered into force 30 September 1962, 450 UNTS 11, 82. 69. Chicago Convention, Article 12. 70. Mark Franklin, 'Sovereignty and the Chicago Convention: English Court of Appeal Rules on the Northern Cyprus Question' (2011) 36(2) Air and Space Law 109.

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The Vertical Limit: The Boundaries with Outer Space

A question concerned with the future of sovereignty in international civil aviation is concerned less with the somewhat stable horizontal limit, but the far more unsettled vertical limit. The literature on this topic is vast and to examine it would be a serious task indeed - many acute minds have attacked the subject from various points of yiew. 71 Only a precursory view is provided in this chapter, but it concludes with a narrower focus on interpretation of scientific terms such as 'airspace' and 'aircraft.' The confines of aviation, as a category of technological artefacts imbued with capabilities of flight, are not stable. Increasingly, because the categories of aviation activities expand as technology develops, so too does the domain of where these activities take place. The result is that the legal definition of 'airspace' - being that where regulation of aviation activities occurs - is subject to change as technology redefines where aircraft are capable of flight. If that which is 'airspace' is that where 'aviation' activities take place, then an expansion of 'aviation' dialectically increases 'airspace'; and an expansion of 'airspace' necessarily shifts the bounds of sovereignty to the boundaries of where technology is capable of operating, and therefore where regulation can occur. This poses an interesting problem, as regulation does not merely cease because some threshold has been crossed, but the threshold does alter the set of rules that are to apply. If the horizontal limit is a relatively settled phenomenon that limits where a State can exercise its sovereign control, the vertical limit must equally be the place where the exercise of sovereignty ends. Within that limit - the upper threshold - it must also be in the economic interests of a State to control the area, as it was, and is, an economic .interest of the State to control its entire airspace. The question of the vertical limit will be greatest test to sovereignty, as it is a limit of a States zone of economic influence. The following extract from the American Journal of International Law in 1913 is lengthy, but touches upon the very issues being faced by the vertical limit, in the context of the then unsettled notion of sovereignty over airspace and subsequent uncertainty around the horizontal boundary: When Grotius was a young lawyer he served for a time as counsel for the Dutch East India Company. Out of his early labors as a corporation lawyer there grew later two wonderful books - one the De Jure Belli et Pacis, the greatest gift that any lawyer ever gave to the world, and the other, published in 1608, the Mare Liberuin. In 1868, came to light the brief which he had written in a celebrated case in which the company had captured a rich Portuguese galleon in the Straits of Malacca. It was found that one chapter of the Mare Liberum had been taken bodily from this brief. At the time the book was written, Portugal claimed dominion of the eastern and England of the northern seas. John Selden of the Inner Temple, most famous 71. See for example, ICAO legal Committee 36th Session, Commercial Space Flights (2015) LC/36-WP/3-2; Steven Freeland, 'Fly Me to the Moon: How Will International Law Cope with Space Tourism' (2008) 11 Melbourne Journal of International Law 92; Steven Freeland, 'The Emergence of Space Tourism and Its Impact on the International Law of Outer Space' (2005) 6(1) Chicago Journal of International Law l; Tanja Masson-Zwaan, 'Regulation of Sub-orbital Space Tourism in Europe: A Role for EU/EASA?' (2010) 35(3) Air and Space Law 263; Frans von der Dunk (ed.), Handbook of Space Law (Edward Elgar Publishing, 2015).

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of English legal scholars, answered Grotius by a work entitled Mare Clausum; but the stars in their courses fought against Selden and today the world rejoices in the freedom of the seas. Three hundred years have swept over that great controversy, and now in our own day again the international lawyers of tbe world are marshaled in controversy. This time they are contesting over the freedom of the air. Fauchille, like a new Grotius, is pleading the cause of aerial liberty, and English scholars once more are the advocates of exclusive dominion. This time, has the Englishman a better case than before? There are not a few jurists on the continent as well as in England who think that he has. At first thought there is something almost revolting in the idea that this new and universal means of communication through the air, the latest gift of human genius, should no sooner be discovered than states should begin to raise invisible barriers against its exercise. A little reflection should convince us, however, that there can be no unchartered freedom anywhere. Man takes his law with him upon the seas, and the security of states and safety of mankind must make the very air subject to dominion. When men explore its azure, depths obedience must fly with them. We live in the age when man has reached the poles and made conquest of the air! 72 We are perhaps traversing into an unregulated domain, where, absent uniform understanding of the limit, we are left with a series of conflicting ideas and interpretations that form a complex matrix of laws that are difficult to unbundle, precisely because sovereignty was exercised in its limited incarnation as servicing only State interests. These national norms may diverge too far in principle and substance that old structures cannot be demolished when a treaty becomes paramount. This is to say that if all indications have been that sovereignty in international civil aviation has been reduced, as a result of regulatory competition, so it can accrue towards a common benefit, it makes little sense to get bogged down in discussion on vertical limits, for the same conclusion should be reached on the basis of the work already undertaken in this parallel field. But this is the very discussion we are forced to have. There is a risk, therefore, that in the same manner that the horizontal limit had to evolve out of nationalistic conceptions towards its more enlightened, liberalised mode, the vertical limit will to be shackled under nationalist prerogatives before the realisation can occur that the same benefits for horizontal limit apply to the vertical. In the present absence of an agreement as to a vertical limit, States will begin to erect their own invisible barriers and therefore subject the upper threshold to an exchange of rights much the same as occurred international civil aviation. The lack of uniformity in this area does not affect our paradigm, but future jurists stand to inherit a system of chaotic demarcations of sovereignty if this issue is not resolved. The present jurist must have regard to the technology involved and advances already made in the aerospace industry, for although no present need is obvious - so clear the divide is between air and space activitiPs - technology shall continue to push the limits and blur the divide.

72. Blewett Lee, 'Sovereignty of the Air' 7(3) American Journal of International Law 1993, 470.

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[C]

Sovereignty under Future Air and Space Law

{l]

Future Interactions Between Aviation and Outer Space Related Activities

t present air law and space law are separate bodies of international law that seldom teract for the distance between the upper limit of aviation activities and the lower ·mit of space activities is, simply stated, vast. It would be nai"ve, however, to expect is gap to remain. Developments in aerospace technology that permit the use of that wer stratosphere, somewhere above the vertical 100 km boundary, but below the low arth orbit satellites will be the first developments to affect the issue of sovereignty and ivil aviation. 73 The issue can be surmised as whether air law covers those parts of the flight that ccur in airspace, or whether space law covers the entire flight, or whether it is a ombination of the respective parts. In academia, these views are bifurcated into the nctionalist approach of defining 'outer space activities' and the opposing spatialist pproach of defining 'outer space' itself. 74 Such a classification is important for the potential for conflict between the UN space treaties 75 and the Chicago Convention raises all manner of difficulties as regards liability, registration and safety, as each is eated substantially differently with different normative outcomes.

[2]

Conceptual Differences Between Air and Space Law

he Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967) assumes the antle of the constitution-equivalent for international space relations. This treaty is nshrined with humanist intent and profoundly dictates that activities connected with uter space are to be conducted for the benefit of all and to the detriment of none. The object and the purpose of the treaty are to facilitate international relations so as to derive universal benefits. 76 A general spirit of cooperation, unity, harmony and

73. Freeland, above n 71, 9. 4. Olavo Bittencourt Neto, 'The Elusive Frontier: Revisiting the Delimitation of Outer Space' (2012) 1 International Institute of Space Law 6. 75. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature 27 January 196 7, 61 O UNTS 205 (entered into force 10 October 1967) ('OST'); Convention on Registration of Objects Launched into Outer Space, opened for signature 14 January 1975, 1023 UNTS 15 (entered into force 15 September 1976); The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature 22 April 1968, 672 UNTS 119 (entered into force 3 December 1968) ('Rescue Agreement'); Convention on International Liability for Damage Caused by Space Objects, opened for signature 29 March 1972 961 UNTS 187 (entered into force 1 September 1972); Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature 18 December 1979 UNTS (entered into force 11July1984) ('Moon Agreement'). 76. This utilitarian underpinning considers the wellbeing of the global society and is explicit in the OST preamble: '[b]elieving that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic of scientific development.'

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community can be ascertained from the express language used. 77 In this exercise 'international co-operation is essential, and if all the possibilities opened up are to b~ used in a responsible manner, the conduct of States in regard to outer space must be submitted to the rule of law.' 78 That outer space is res communis runs contrary to the core principle and fundamental axiom professed by Article 1 of the Chicago Convention. Air law is intertwined with sovereignty and nationalism; space law is intended to promote outer space as the province of all mankind. Where these two bodies of law intersect therefore has important considerations for the future of sovereignty in international civil aviation; and it is advancements in technology that will be responsible for influencing sovereignty in the future, shaping our understanding of this concept and posing many novel problems along the way: Air Law 79

Space Law

Applies to 'airspace' Applies to 'aircraft' States enjoy 'complete and exclusive sovereignty' over their territorial air space Imposes liability on the airline, or the aircraft operator Requires States to certify and register aircraft Requires States to regulate safety, navigation, and security Requires States to regulate noise and emissions

Applies to 'outer space' Applies to 'space objects' State sovereignty over outer space is prohibited Imposes liability and oversight responsibility upon the State Creates an international registration regime

(3)

No universal safety, navigation or security standards Environmental standards are 'soft law'

Interpretation of Terms Laid Down in Air and Space Law

All the problems posed by the intersecting air and space law cannot be solved in one composite text without first agreement as to a limit. The limit is essential, for it demarcates the particular set of rules to apply. In lieu of an agreement, incremental steps are not only desirable but necessary, in order to lead us to the discovery of the most effective solution. One such intermediary step is to recognise the unique position of both air law and space law as being bodies of law concerned with technology, and This utilitarian approach aims to 'maximize innovation and associated economic growth, whilst remaining cognizant of the social, ethical and regulatory context for this subject matter,' Robert Merges & Glen Reynolds, Outer Space - Problems of Law and Policy (Westview Press, 1989) 49. 77. Aldo Cocca, 'Solidarity and Humanism in the OST' (1997) 40th Proceedings on the Law of Outer Space 68.

78. Manfred Lachs, The Law of Outer Space - An Experience in Contemporary Law-Making (Martinus Nijhoff Publishers, 2010) S. 79. Paul Dempsey & Maria Manolia, 'Suborbital Flights and the Delimitation of Air Space vis-a-vis Outer Space: Functionalism, Spatialism and State Sovereignty' (2018) Committee on the Peaceful Uses of Outer Space: 57th Session of the Legal Subcommittee A/AC.105/C.2/2018/CRP.9.

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that this interplay between technology and law creates difficulties for regulators in olving an issue both presently and in the future. In order to mediate this position and to resolve difficulties, such as where the boundary of sovereign rights ceases and res communis principles commence, there ust be an agreed approach as to the manner in which terms of technology are mterpreted. The terms 'airspace' and 'aircraft' are not precisely defined in the Chicago convention, which in part contributes to the present uncertainty, and therefore emerges as an area of development that can subsidise the larger issue at play. This is to say that the relative value of the terms, and the shape given to them by the terpretive community, can be used to ensure an interpretive consistency that can recede an agreement on the vertical limitation. The notion that new disciplines and generalised advancements in science introduce a new vocabulary is commonplace in the philosophy of language. 80 Lanuage serves as the catalyst for communication, but language is by no means static and it does not remain unchanged. Words are capable of adopting new meanings, and so to new words can be coined to fill the language-lacunae upon the introduction or discovery of new concepts. The technological advances in aviation are difficult to separate from the technological advances which gave birth to the Space Age. 81 These technological advances not only furthered scientific knowledge but have 'added dimensions and color to our language' such that even ordinary words - airspace - get new meanings. 82 The following extract is in the context of outer space, but readily applicable to developments in aviation, particularly, for instance, as regards remotely piloted vehicles: The lexicon of space terms grows from the necessity of naming materials and concepts, and out of the very real need for scientists and technicians to achieve a common basis of understanding as means for communicating special knowledge. It is a kind of science interlingua which cuts across all scientific disciplines. 83 Science, therefore, permits new concepts and new procedures and brings forth protologisms and neologisms. The benefits of these neologisms are that they are inseparable from the scientific enterprise that bought them into existence, and it becomes impossible for the law to escape this technical construction of language. Science and technology are fluid commodities, and technology is the 'archetypal heritage of mankind.' 84 The task of interpretation, therefore, cannot be done independent of the scientific origin of the very terms that now fall under scrutiny. And, if this proposition is to be accepted, so too the difficulties of separate authentic languages are overcome, for

Neville Collinge (ed.), An Encyclopedia of Language (Toutledge, 1990); Bob Hale & Crispin Wright (eds), A Companion to the Philosophy of' Language (Blackwell, 1997). 81. Reynolds and Merges, above n 76. 82. Lillian Levy (ed.), Space: It's Impact on Man and Society (WW Norton & Company, 1965) 80. See

169-170. 83. Ibid. 84. Reynolds and Merges, above n 76, 154.

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science produces universal values and so too must the terms described be embodied with a universal understanding. It is therefore troubling that there is no unanimous and unified legal understanding as to scientific terms such as airspace; and, because of this absence of unified understanding, there is no body, organisation or collection of States, that is willing to cede ground in the area of interpretation - that is: to defer to science for clarity on the issue - for the ability to interpret is a primary form of legal argument used to explain or justify certain actions and achieve certain aims. The introduction of a plurality of different legal values and priorities over diverse areas of law makes any inter-systemic consensus on an act of international codification a difficult task, 85 as there is no common trunk on which doctrines of law are to graft themselves. 86

[4]

Application of Treaty Rules

To belabour this point should not undermine the importance of the central proposition. Technological neologisms are a consequence of scientific inquisition, and this intrinsic scientific link cannot be severed when under scrutiny by the law. Where such neologisms filter within and into the legal lexicon, they are stripped of any special status, and instead exist, like all interpretable phenomena, as something that can be provided a new meaning and new application. The 'natural and ordinary meaning,' a concept from the Vienna Convention on the Law of Treaties, henceforth referred to as the Vienna Convention, 87 illuminates this point clearly: what is natural and ordinary are subject to the whole variety of external and contextual factors that are capable of bearing down upon the issue, for what is 'ordinary' and 'natural' or even 'common' can only be assessed against the values permeating within society at any given moment. 88 This follows the fundamental presupposition of John Stuart Mill in On Liberty, that no two ages or societies have treated the same issue in the same manner for there are inherent differences in the customs, traditions and values between any two political ages. If, therefore, sovereignty is linked to territorial boundaries, and States are unable to come to an agreement as to a vertical limit, and such a vertical limit affects international civil aviation for it dictates what is aviation and the specific regime of liability, registration and safety that will apply, then an interim solution is to agree to the interpretation of some of the essential terms on the basis of their scientific qualities, in order to distinguish which regime of air law or space law is to apply. Some measure of uniformity of the interpretive process, being the jurisprudential methods used to

85. Edward McWhinney, Aerial Piracy and International Terrorism (Martinus Nijhoff Publishers, 1987) 169. 86. Watson, above n 56, 20. 87. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) ('Vienna Convention'). 88. The absoluta sententia expositore non indigent changes from generation to generation.

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§29.04

nliven the a text, is needed to foster this goal. 89 Simply stated: 'rules with shared rigins' 90 cannot be subject to divergent interpretative measures, 91 and inconsistent terpretive approaches predicates substantive differences in application of treaties. 92 hus, unified action in the process of interpretation - the procedural approach - is a ecessary precondition to uniform application of a text, and this can be achieved rough adherence to a set of interpretive norms that situates the interpreter in an terpretive community and establishes communal traditions through shared judicial ethodologies and understanding. 93 To achieve this goal, recourse must be had to the Vienna Convention, for it rovides general parameters of interpretation inter alia interpreting a treaty in good ith in light of the treaty's object and purpose. 94 When construing the text interpreta. n cannot be done with reference to domestic principles of construction, for the text is part of a specific international legislation and its purpose would be undermined if 'the courts of each State were to interpret it in accordance with concepts that are specific to their own legal system. ' 95 §29.04

CONCLUSION

This paper has considered the uncertain question of the future of sovereignty in · ternational civil aviation. The attempt has been to consider some of the logical directions of sovereignty based from past experience - analysing how it has already changed and use this as a metric to predict its future shape. International civil aviation is a paramount example of States engaging in the sovereign act of sharing their national competencies in service of an international public interest. The near-term advance would likely continue this practice, as this globalised pursuit results in greater advantages through multilateral engagements. The second part has considered longer-term issues that sovereignty will face, which must be in that area where air law and space law intersect, and the difficulties · resolving this matter presently without having factual circumstances mandating such a distinction. But these circumstances will arise, for the advance of aerospace technology is as unpredictable as it is marvellous, and when these circumstances take hold, we must be prepared for how States will seek to exercise their sovereign rights, and in which boundaries they so claim.

89. Rene Mankiewicz, The Liahility Regime of the International Air Carrier: A Commentary on Warsaw (Kluwer Law, 1981) 20; Raymond Speciale, Fundamentals of Aviation Law (McGraw Hill, 2006) 283. 90. Watson, above n S6, 20. 91. Mendes de Leon, above n 6, 189. 92. Watson, above n S6, 20. 93. Stephen Feldman, 'Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice' (1994) 88 Northwestern University Law Review 1046. 94. Justin Gleeson, 'The Australian Constitution and International Law' (201S) 40 Australian Bar Review 149, 166. 95. Bin Cheng, 'Wilful-misconduct: From Warsaw to the Hague and from Brussels to Paris' (1977) 2 Annals of Air and Space SS.

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To help in this eventual situation, understanding that these unique areas of law are technologically driven, and that by recourse to science as the great leveller is a sensible, neutral means of interpretation to apply in the present, so that future jurists inherit a system that is absent the nationalist prerogatives that shaped air law thus far.

398

Convention portant reglementation de la avigation Aerienne, signee a Paris le 13 octobre 1919, avec Protocole additionnel signe a Paris le 1er mai 1920

CHAPITRE PREMIER.

PRINCIPES GENERAUX.

Article 1.

Les Hautes Parties contractantes reconnaissent que chaque Puissance a la souverainete complete et exclusive sur l'espace atmospherique au-dessus de son territoire. Au sens de la presente Convention, le territoire d'un Etat sera entendu comme comprenant le territoire national metropolitain et colonial, ensemble les eaux territoriales adjacentes au dit territoire. Article 2.

Chaque Etat contractant s'engage aaccorder en temps de paix, aux aeronefs des autres Etats contractants, la liberte de passage inoffensif au-dessus de son territoire, pourvu que les conditions etablies dans la presente Convention soient observees. Les regles etablies par un Etat contractant pour I' admission, sur son territoire, des aeronefs ressortissants aux autres Etats contractants, doivent etre appliquees sans distinction de nationalite. Article 3.

Chaque Etat contractant a le droit d'interdire, pour raison d'ordre militaire ou dans l'interet de la securite publique, aux aeronefs ressortissant aux autres Etats contractants, sous les peines prevues par sa legislation et sous reserve qu'il ne sera fait aucune

399

Annex 2 (b) Denunciation shall take effect one year from the date of the receipt of the notification and shall operate only as regards the State effecting the denunciation. CHAPTER XXII Definitions Article 96

For the purpose of this Convention the expression: (a) "Air service" means any scheduled air service performed by aircraft for the public transport of passengers, mail or cargo. (b) "International air service" means an air service which passes through the air space over the territory of more than one State. (c) "Airline" means any air transport enterprise offering or operating an international air service. (d) "Stop for non-traffic purposes" means a landing for any purpose other than taking on or discharging passengers, cargo or mail. Signature Of Convention In witness whereof, the undersigned plenipotentiaries, having been duly authorized, sign this Convention on behalf of their respective governments on the dates appearing opposite their signatures. Done at Chicago the seventh day of December 1944, in the English language. A text drawn up in the English, French and Spanish languages, each of which shall be of equal authenticity, shall be open for signature at Washington, D.C. Both texts shall be deposited in the archives of the Government of the United States of America, and certified copies shall be transmitted by that Government to the governments of all the States which may sign or adhere to this Convention.

436

Index A

Accident and incident investigation, 99 Aerodromes. See Airports Aeronautical Commission of the Peace Conference, Paris (1919), 11, 13-14 Aircraft certificate of airworthiness for, 346 distinction between civil and State aircraft, 198, 200, 204-205 equal treatment of - (under the Paris Convention, 1919), 19 innocent passage (see Innocent passage [under the Paris Convention, 1919]) leasing of, 348, 349 overflight rights, 26, 39, 235, 336 prohibition of weapons against civil in flight, 48, 267 regulation, 3-23, 74-75, 78-80, 89-92 safety oversight of, 57 Air Defence Identification Zones (ADIZ), 27-29,32, 34 Airlines cross border alliances between, 291 effective control of, 50, 341 formation of transnational [air carriers], 209-220 nationality requirements for, 284-287, 300 privatisation of, 216

Air Navigation Services (ANS), 147-161, 385-387 Airports charges at, 144, 205, 250 cross-border flights into, 149, 150 in a European context, 115-119, 220, 225,229,231 in the sea (on an artificial island) groundhandling at, 250, 253-254 military use of, 340 responsibility for the organisation and management of, 46, 63, 112, 128, 142, 178, 194, 217, 251, 386 slot allocation at, 144, 239, 276, 341 traffic distribution between airports, 214, 299 uniform access to, 250, 267 Air services China's approach towards the liberalisation of, 320-323 creation of a multilateral regime for the operation of, 273-290, 331-332 deregulation of - [under US law and policies], 328-329 liberalisation of, 299-302, 320-323 operation of - under Air Services Agreements (ASAs) (see Air ServicesAgreements (AS As)) US position with respect to the operation of, 327-328

437

Index Air Services Agreements (ASAs) Bermuda I Agreement (1946), 39, 236, 295,299, 338 Bermuda II Agreement (1977), 39, 236,299 bilateral, 50, 126, 130, 136, 138-144, 219,235,240,242,244-246, 262-264,267-270,295,299, 310, 312, 315-321, 323, 373-377 China-EU Horizontal Agreement on air transport (2017), 319-320 EU-US agreement on air transport, 301 multilateral, 126, 130, 138-144, 268, 271, 272 open skies, 92, 143, 236, 237, 239-241,243,274,280,283, 299, 300, 321, 323, 329,330, 339-341,373, 376, 377,382 plurilateral, 276-280, 310, 315, 323 provisions of, 245, 246 reciprocity, principle of-, in relation to, 139, 212 Air Traffic Management (ATM) Chicago Convention and ICAO, regulation of - under the, cross border cooperation in relation to, 192-193 definition of, 164 establishment of a Flight Information Region (FIR) as a matter of, 165-166 international State responsibility for, 111-112, 187-189 relation to sovereignty, 111-124, 187-195 role of SESAR for, 114-115, 118-120 single European sky, 113-114, 191-194 (see also Single European Sky (SES)) Air Traffic Services (ATS) civil-military coordination in relation to, 156-159 cross border provision of, 190-193

delegation of - in the context of cross border cooperation, 192-193 formal agreements on - in relation to cross border service provision, 148-160 ICAO resolutions on, 150-151 oversight of, 154 Antarctica, legal status of, 28-29 Archipelagic States, legal status of under air law, 30. See also Territory ASEAN Agreement with China (2010/2014), 321-322 establishment of external aviation policies of, 287-289 Single Aviation Market of, 278, 279, 285-288 Asia's emerging aviation markets, 275-276 Astana Treaty (Eurasian Economic Union, 2014), 78-80 ATM. See Air Traffic Management (ATM) Aviation safety, 57-60, 70-78, 97-108, 169-170 B

Bermuda I Agreement (1946), 39, 236, 295,299,338 Bermuda II Agreement (1977), 39, 236, 299 Bilateral Air Services Agreements, 39, 46, 80,211,235,262, 273,274, 277,283,284, 327, 355, 373 cabotage privileges in, 311-313 China's policies in relation to, 315-321 description of, 246, 235 India's policies in relation to, 281-282 market behaviour and commercial opportunities, 263, 267-269

438

Index Competition application to the airline sector, 366 enforcement of - rules, 260 regulatory, 382-383, 389, 392 relationship with Air Services Agreements, 2 71 and subsidies, 332 CORSIA arrangements on aircraft emissions (ICAO), 364 Customary international law, 15, 19, 26-28, 38, 55, 229, 293, 307-309, 323, 372

relationship with the Chicago Convention, 46, 211, 235, 274, 327

c Cabotage, 311-313 Chicago Convention applicability to civil aircraft, 198, 203-205,267, 309-310,357 Article 6, 38, 39, 46, 131, 132, 135-136, 139,210, 219,220, 234,259,260,265,268,274, 292,294, 315, 327, 330, 333, 335, 361, 381, 382 Article 11, 19, 141 Article 12, 56, 346, 385, 390 Article 28, 112, 149, 150, 178-181, 187, 188, 194, 386 Article 32, 142 Article 33, 56, 142 Articles 37 and 38, 56 Article 83bis, 345-352 dispute settlement under, 366 equality of opportunity under, 261-262 functions of ICAO under, 60-64, 104-105, 360-362 market access under, 261-262 objectives, 57, 147, 152 overflight rights, 39, 235, 336 scheduled and non-scheduled air traffic, 27, 34, 130, 132, 307, 309-310, 311 sovereignty under, 25-34, 291-303 territorial jurisdiction, 48 China-EU Horizontal Agreement on air transport (2017), 319-320 CINA (Commission internationale de la navigation aerienne). See !CAN Civil and State Aircraft, 11, 197-207 Community (EU) air carrier, 50, 213-215, 218, 219, 227-228, 232,247, 282

D

Dispute settlement under the Chicago Convention, 366 Dissolution of the USSR, 70, 71, 74 Drones. See Unmanned Aircraft Systems (UAS) E

EAEU common air transport market, 79, 80 EASA. See European Aviation Safety Agency (EASA) ECAC. See European Civil Aviation Conference (ECAC) ECHR. See European Court of Human Rights (ECHR) Economic regulation and market access, 74-75 Emission Trading Schemes (ETS), 223, 228-231 Equal treatment of aircraft. See Aircraft Equality of opportunity. See Chicago Convention Erga omnes obligation, 58, 63 EU-Canada Agreement on Air Transport (2009), 218 EU legislation in the field of Air Traffic Management (ATM)/SES, EASA, 97, 98, 101-108, 111, 116-117, 124, 193,224,225, 349, 385

439

Index ETS,223,228-232 Internal/single air transport/aviation market, 113, 213-215, 218-219,224,233-247 liberalisation, 245, 296 licensing of air carriers, 227 progressive liberalisation of air transport as laid down in, 238 Single European Sky (SES), 111, 113-114, 118, 119, 151, 191-195,224 EU single [internal] aviation [air transport] market establishment of the Third Package, 213-216, 218 formation of transnational air carriers, 209-220 rise of low cost carriers, 216-217 Eurasian Economic Union (EAEU), 67, 69 European Aviation Safety Agency (EASA), achievements of, 101-105 as a regional aviation safety organisation (RASO), 97-98 Basic Regulation (functions of - under the), 101-105, 193, 225 competencies of, 102-105, 117, 224-225 establishment of, 117, 385 functions of - in relation to Art. 83bis of the Chicago Convention, 349 legal personality of, 103 relationship with ICAO, 104-107 EU-US Agreement on Air Transport (2007 /2010), 301 Open Skies Agreements, 241 (see also, Bilateral Air Services Agreements) Exclusive Economic Zone (EEZ), 29-32, 45 External aviation relations of the EU EU designation clause, 244, 245, 320 horizontal agreements, 219, 228, 240, 241,243, 246, 247,319, 320

mixed competences, 239-240 Open Skies judgements of the Court of Justice of the EU, 239-240 shared competences, 244 vertical mandate, 241 F Fair competition, 50, 51, 79, 143, 226, 246,247, 260,271, 301 Fifth Freedom rights, 210-212, 264, 276-280,289,295,338-340 Flight Information Region (FIR), 28, 120, 148, 163, 165-166 Freedom(s) of the Air, 5, 7, 9, 37, 137, 139, 264 Fifth Freedom, 264, 265, 268-271 Limited, 9, 269 Under the International Air Services Agreement (1944), 288-289 Under the International Air Transport Agreement (1944), 136, 277, 294 Unlimited, 264, 269 Future Air Navigation System (FANS), 176 G General Agreement on Trade in Services (CATS), 50, 263, 265, 271 Global Navigation Satellite Systems (GNSS) in relation to sovereign, 175-186 relationship with ATM under Article 28 of the Chicago Convention (1944), 178-181 sovereign immunity for the provision of services through GNSS, 178, 182-184 Groundhandling, 250, 253-254 H

High seas, 25-27, 29, 30, 32-34, 130, 150, 166, 229, 390

440

Index I

International Laws Association (ILA), 6,

IATA. See International Air Transport Association (IATA) ICAN creation, 20-22 duties, 20 ICAO. See International Civil Aviation Organization (ICAO) Innocent passage [under the Paris Convention, 1919] limited reach of, 17-19 right of, 16-19 International Air Services Transit Agreement (IASTA), 19, 30, 33, 34, 39, 136, 210, 265, 274, 294, 307, 313, 334 International Air Transport Agreement (IATA), 39, 136, 138, 277, 294, 307, 313, 334,336-337 International Air Transport Association (IATA), 88, 128, 229, 249, 250, 366 International Bureau for Investigation of Aircraft Accidents and Serious Incidents, 76 International Civil Aviation Organization (ICAO) Annexes,60, 105, 107 Council, 34, 58, 61, 148, 168, 172, 190,202, 310-312, 348,351 General Assembly, 150, 343 objectives, 56, 57, 149, 150 promotion of safety, 57-60 regional organisations, relations of with, 97-108 role, 55-66 Standards and Recommended Practices (SARPs), establishment of - by, 79, 98, 120, 141, 189, 202 International cooperation, 56-57, 68, 70, 72, 103, 194

International organisations worldwide, 126 IATA. See International Air Transport Association (IATA) ICAO. See International Civil Aviation Organisation (ICAO) Interstate Aviation Committee (IAC), 67, 71-76, 78, 81

9

J Jurisdiction domestic rules on, 181 exclusivity of. 32, 45, 98, 130 immunity from, 177, 182-82, 185 in relation to the EU, 228-229, 328 in relation to the International Court of Justice (ICJ), xl in relation to State aircraft, 198, 202 in relation to unmanned aircraft, 141 of ICAO for suborbital flights, 361 of sovereign States, 47, 48, 63, 68, 130, 165, 198, 223, 224, 225, 260,291,293,299 territorial-, xliii, xliv, 27, 32, 48, 165, 166, 198, 223-225, 260, 291, 293,299 L

LACAC [Latin American Civil Aviation Commission] functions, 85-86 resolutions, 85, 86, 96 strategy, 94 structure, 86-88 Law of Treaties sources of international law, 291 Vienna Convention on the Law of Treaties (1969), 59, 139, 265, 309, 396 Lex specialis derogat generalis, 130-136

441

Index Liberalisation European [EU] model [policies] for the - of air services, 282-283 ICAO's initiative for the - air services (2019), 340-342 multilateral efforts for - of air services, 275-283, 340-342 of air services [generally], 320-323 unilateral, 321

0

Open Skies Agreements, 39, 143, 239, 280,299, 329, 339, 382 Outer Space Treaty (1967), 31 p

Paris Convention of 1919, 3-23, 25-27, 38,45, 55, 148,200,210,234, 291, 308,333, 357, 363,372 Peace Conference, Paris (1919), 4, 6, 11, 13-14, 201 Prohibited areas [under Article 9 of the Chicago Convention], 40

M

Minsk Agreement (1991), 71-74, 76, 78, 81 Moscow Agreement (2018), 76, 78. See also International Bureau for Investigation of Aircraft Accidents and Serious Incidents Most Favoured Nations (MFN) treatment, 337

R

Regional Organisations European EASA, 101-103, 225,246 Eurocontrol, 111, 117, 119 South American (LACAC), 83-96 Regionalism, 51, 74, 237, 363, 384 Regulatory oversight, 89 Rules of the Air, 11, 12, 29, 33, 46, 70, 346, 381, 387

N

Nationality of aircraft as regulated in the Chicago Convention, 346 non-discrimination in relation to, 50, 239 Nationality of airlines effective control as a condition for the, 40, 50, 319 EU designation clause, 244, 245, 320 liberalisation of the requirements for, 300 principal place of business as a condition for the, 284 requirements for, 228, 284-287 Non-discrimination in relation to the application of competition law, 143 in relation to the nationality of aircraft, 50, 239

s Safety of air navigation safety oversight, 57, 188 SARPs, 153, 156 SARPs. See Standards and Recommended Practices [SARPs] Scheduled and non-scheduled air traffic, 27, 34, 130, 132, 307, 309-310, 311 Single European Sky (SES) establishment, 116-117 Functional Airspace Blocks under, 117 purposes, 115-118

442

Index Sovereignty air/aerial/airspace, 25-34, 291-303 concept, 35-44, 175-186, 369, 380-381 customary law in relation to, 47 development of, 35-37, 45-51, 296, 382-389 economic regulation in relation to, 49, 50,323, 363-364 evolution of, 47-48, 373-375 functionalism in relation to, 359-360 the future of, 184-185, 355-398 in relation to airspace and territorial waters, 9, 29, 45-46, 130, 390 in relation to technology, 175-186, 379-380, 389-397 legal basis, 164-166, 175-186 limitations with respect to, 46-49 relationship with Bilateral Air Services Agreements (BASAs), 46, 373 resurgence of, 367-377 rise of nationalism in relation to, 370-371 role of ICAO with respect to, 55-66 Westphalian origin of/approach to/model of, 292, 302, 355-357, 359, 360 Standards and Recommended Practices (SARPs) adoption of - under the Chicago Convention, 56, 59, 98, 99, 105, 106, 120, 141, 143, 153, 156, 166, 189, 190 as laid down in Annexes, 394-396 implementation of, 64-66 State operator of the aircraft, 103, 156, 347-352 registry of the aircraft, 105 relation to sovereignty, 65-66 Substantial ownership and effective control. See Nationality of airlines

T Taxation, 90-91, 144, 348, 386 Territory airspace above, 25, 26, 38, 42, 46, 56, 68, 90, 98, 107, 125, 130, 148, 151, 164, 178, 178, 180, 187, 210,292,309, 372-375, 377, 390 of archipelagic States, 30 boundary with outer space, 391-392

cuius est solum eius est ad coelum/ ad sidera ad astra 30, 233 definition of, 26 high seas, 25-27, 29, 30, 32-34, 130, 150, 166, 229, 390 territorial waters/sea, 9, 16, 26-30, 32-34,45,46, 130,292,293, 372, 390, 412 Transfer of safety oversight/ Article 83bis Chicago Convention, 345-352 Transit rights Aircraft, overflight of, 30 Chicago Convention, overflight rights, 309-310, 336 Treaty of Versailles (1919), 38

u UAS. See Unmanned Aircraft Systems (UAS) UNCLOS, 27-33 Universal Safety Oversight Audit Programme (USOAP), 60-63, 105-107 Unmanned Aircraft Systems (UAS) application of Freedoms of the Air to, 136-138 operation under Air Services Agreements (ASAs), 136-144 regulation under Article 8 of the Chicago Convention (1944), 132-135

443

Index

v

w

Vienna Convention on the Law of Treaties (1969), 59, 139, 265, 309, 396

World Trade Organization (WTO), 49-50, 237, 263, 313, 316, 317, 327, 330, 359, 385

444