![]()
1
Introduction
Multilateral conventions and customary international law
Paul Stephen Dempsey
1.1 Introduction
International Air Law (or, if you prefer, Aviation Law) is divided into two broad categories: Public and Private. In this book, we review several of the major issues Public International Air Law likely will confront during this century.1
1.2 The Chicago Convention
Because so much of aviation is inherently international in scope, early in its development the world community assembled and drafted major multilateral conventions attempting to unify international rules governing safety and navigation and other aspects of civil aviation to ensure protection of the public.
The “magna carta” of Public International Air Law is the Chicago Convention of 1944.2 The Chicago Convention is both an organic constitution of an international organization and the source of major principles of Air Law. Established by the Chicago Convention, the International Civil Aviation Organization (ICAO) was given responsibility for regulating the many technical aspects of the international civil aviation. Consequently, the jurisdiction of ICAO was extended to such matters as aircraft licensing, airworthiness certification, registration of aircraft, international operating standards, and airways and communications controls. Beyond safety and navigation, ICAO also has taken the lead on environmental and security issues, jurisdictional areas not originally contemplated when the Chicago Convention was drafted. ICAO has promulgated Standards and Recommended Practices (SARPs) which its 191 Member States are obliged to implement uniformly, unless they find it impracticable to comply.3 Moreover, the Chicago Convention provides that: “over the high seas, the rules in force shall be those established under this Convention.”4 Hence, ICAO has law-making authority over 72 percent of the Earth’s surface. This jurisdictional scope, which is unparalleled by any other international organization, in effect, makes ICAO a paradigm of global governance.5 Today, ICAO is one of the largest, and most successful, specialized agencies in the United Nations family.6
The Chicago Convention set forth many of the guiding principles of Public International Air Law. Among them are:
- Territorial Sovereignty. Every State has, to the exclusion of all other States, the unilateral and absolute right to permit or deny entry into the area recognized as its territory and similar right to control all movements within such territory.
- National Airspace. The territory of a sovereign State is three dimensional, including within such territory the airspace above its national lands and its internal and territorial waters.
- Freedom of the Seas. Navigation on the surface of the high seas and flight above such seas are free for the use of all.
- Nationality of Aircraft. Aircraft have the characteristic of nationality similar to that developed in maritime law applicable to ships. Thus aircraft have normally a special relationship to a particular State which is entitled to make effective the privileges to which such aircraft may be entitled and such State is also reciprocally responsible for the international good conduct of such aircraft.7
The Chicago Convention lists 11 jurisdictional areas to which ICAO is instructed to devote itself, mostly focusing on safety and navigation.8 Yet, since its creation, as air transport has grown and evolved, ICAO has focused on other areas not explicitly listed therein, including, for example, the promulgation of wholly new Annexes addressing environmental and security issues. Some authors assert that the involvement of ICAO in addressing aircraft emissions lacks “any sound textual basis in the Convention.”9 This author, however, takes the view that the Convention is sufficiently broad to permit such jurisdictional assertions, as it provides that in addition to those matters specifically enumerated, ICAO may promulgate SARPs addressing “such other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate.”10
ICAO began operations in 1947. The international Air Law legal regime governing air transport on issues such as safety, security, navigation, and air traffic management are now well developed, and set forth in the Chicago Convention and the 19 Annexes thereto.11 By convening diplomatic conferences, ICAO also has been a major source of multilateral Conventions addressing aviation.12 The success of ICAO is reflected in the nearly universal ratification of both the Chicago Convention, and many of the multilateral Conventions it has generated.13
1.3 The Aviation Security Conventions
More than 190 States have ratified the Chicago Convention. Annex 17 reflects considerable work on the security front, particularly since September 11, 2001. Additionally, an impressive array of international aviation security agreements has been created under ICAO auspices. State ratifications have been widespread:
- the Tokyo Convention of 1963 – 185 States;
- the Hague Convention 1970 for the unlawful seizure of aircraft – 185 States;
- the Montreal Convention 1971 for the suppression of unlawful acts against the safety of aviation – 188 States;
- the Montreal Protocol of 1988 for the suppression of acts of violence at airports – 173 States;
- the MEX Convention of 1991 on the marking of explosives – 150 States.
In addition, ICAO convened diplomatic conferences in Beijing in 2010 and Montreal in 2014 that drafted additional aviation conventions and protocols, which have yet to enter into force. ICAO also has had impressive success in drafting a number of Private International Air Law Conventions addressing airline and air carrier liability.14 ICAO has been a major catalyst for the unification of law globally. One source observed, “very positive results … have been obtained in the technical committees and commissions of ICAO, especially in the field of air law.”15
1.4 Air transport agreements
The Chicago Convention recognizes the customary international air law principle that every State has complete and exclusive sovereignty in the airspace above its territory.16 It prohibits scheduled operations except with the permission or authorization of the State in whose territory an aircraft wishes to fly, and only in accordance with the terms established by that State.17 This has led to a proliferation of bilateral air transport agreements, whereby States negotiate traffic rights, rates, capacity, frequency, and other commercial issues on behalf of their flag carriers. This, too, has created a large body of Public International Air Law.
Some misread the Chicago Convention to address ownership and control of airlines. It does not. It addresses nationality and registration of aircraft. The Chicago Convention provides that, “Aircraft shall have the nationality of the State in which they are registered.”18 Aircraft may not be registered in more than one State, though registration may be changed from one State to another.19 Registration, and transfers thereof, as well as the nationality of aircraft owners are determined by the domestic laws of the registering State.20
The issue of whether aircraft or airline ownership was tied to nationality was left to national law. But since cabotage rights normally were conferred only to airlines owned by nationals of the State, and often nationality was a domestic law prerequisite of air carrier certification, the result would be the same in much of the world. So, the practice of most States has long been to restrict aircraft registration and the issuance of airline operating certificates to its citizens. That tradition began to be assaulted with the European Union’s promulgation of rules prohibiting Member States from imposing such requirements on EU community air carriers.21
Airline nationality is nowhere addressed in the Chicago Convention.22 The “substantial ownership and effective control” requirement (i.e., the requirement that an airline designated by a State to fly routes negotiated in an Air Services Agreement is owned and controlled by the designating State or its national citizens)23 was included both in the multilateral Transit and Transport Agreements adopted at Chicago, and in most of the bilateral air transport agreements concluded since.24 The existence of “substantial ownership and effective control” requirements have circumscribed adoption of the Maritime Law notion of “flags of convenience” – and the myriad of safety problems it has produced25 – into international aviation. But, importantly, although each State has the right to exercise this prohibition, it may also waive the right to exercise this discretion. Increasingly, the requirement is waived.
Some States also recognize the “public utility” attributes of commercial aviation – that frequent and economical air service creates wealth in many sectors of the overall economy beyond air transport, and that its...
