Source of International air law

1. THE CHICAGOTHE CHICAGO
CONVENTION AS ACONVENTION AS A
SOURCE OFSOURCE OF
INTERNATIOINAL AIRINTERNATIOINAL AIR
LAWLAW
Professor Dr. Paul StephenProfessor Dr. Paul Stephen
DempseyDempsey
Director, Institute of Air & Space LawDirector, Institute of Air & Space Law
McGill UniversityMcGill University
CopyrightCopyright © 2014 by Paul Stephen Dempsey.© 2014 by Paul Stephen Dempsey.

2. Sources ofSources of
International Air LawInternational Air Law
 Multilateral ConventionsMultilateral Conventions
 ICAO Standards and Recommended PracticesICAO Standards and Recommended Practices
 Bilateral Agreements (e.g., Traffic Rights, Safety, Security)Bilateral Agreements (e.g., Traffic Rights, Safety, Security)
 Customary International LawCustomary International Law
 Intergovernmental decisions and regulations (e.g., those of theIntergovernmental decisions and regulations (e.g., those of the
European Union)European Union)
 National Legislation and RegulationNational Legislation and Regulation
 Administrative Practice and ProcedureAdministrative Practice and Procedure
 Contracts (e.g., air carrier alliance agreements, airport agreements)Contracts (e.g., air carrier alliance agreements, airport agreements)
 Judicial Opinions; jurisprudence of courts interpreting all the aboveJudicial Opinions; jurisprudence of courts interpreting all the above
in cases and controversies brought before themin cases and controversies brought before them

3. The Chicago Convention of 1944The Chicago Convention of 1944
has two principal functions:has two principal functions:
I.I. THECHICAGOTHECHICAGO
CONVENTION IS ACONVENTION IS A
SOURCEOFSOURCEOF
INTERNATIONALAIRINTERNATIONALAIR
LAW(Articles 1-42)LAW(Articles 1-42)
II.II. THECHICAGOTHECHICAGO
CONVENTION IS THECONVENTION IS THE
CONSTITUTION OFANCONSTITUTION OFAN
INTERNATIONALINTERNATIONAL
ORGANIZATIONORGANIZATION
(Articles 43-96) -(Articles 43-96) -
ICAOICAO

4. The Chicago Conference of 1944The Chicago Conference of 1944
54 nations met at Chicago from54 nations met at Chicago from
November 1 to December 7,November 1 to December 7,
1944, to "make arrangements1944, to "make arrangements
for the immediatefor the immediate
establishment of provisionalestablishment of provisional
world air routes and services"world air routes and services"
and "to set up an interimand "to set up an interim
council to collect, record andcouncil to collect, record and
study data concerningstudy data concerning
international aviation and tointernational aviation and to
make recommendations for itsmake recommendations for its
improvement.”improvement.”

5. Accomplishments of the ChicagoAccomplishments of the Chicago
ConferenceConference
 [T]he[T]he Convention on International Civil AviationConvention on International Civil Aviation, was concluded and opened for, was concluded and opened for
signature. . . . [T]his instrument provided a complete modernization of the basicsignature. . . . [T]his instrument provided a complete modernization of the basic
public international law of the air. It was intended to replace the Paris Conventionpublic international law of the air. It was intended to replace the Paris Convention
on Aerial Navigation of October 13, 1919, and did so when it came into effect onon Aerial Navigation of October 13, 1919, and did so when it came into effect on
April 4, 1947.April 4, 1947.
 The Convention also provided the constitution for a new permanent internationalThe Convention also provided the constitution for a new permanent international
organization, the International Civil Aviation Organization, which . . . replaced theorganization, the International Civil Aviation Organization, which . . . replaced the
previous international organization of more limited scope, the Internationalprevious international organization of more limited scope, the International
Commission for Air Navigation.Commission for Air Navigation.

6. Accomplishments of the ChicagoAccomplishments of the Chicago
ConferenceConference (Continued)(Continued)
In a mere 37 days, the delegates at Chicago drafted the following :In a mere 37 days, the delegates at Chicago drafted the following :
The International Air ServicesThe International Air Services Transit AgreementTransit Agreement, commonly known as, commonly known as
the Two Freedoms agreement, was concluded and opened forthe Two Freedoms agreement, was concluded and opened for
signature. . . .signature. . . .
The International AirThe International Air Transport AgreementTransport Agreement, commonly known as the Five, commonly known as the Five
Freedoms agreement, was also concluded and opened for signature. . . .Freedoms agreement, was also concluded and opened for signature. . . .
The number of accepting states reached a maximum of 17, but it is nowThe number of accepting states reached a maximum of 17, but it is now
declining, 4 having denounced the agreement. . . .declining, 4 having denounced the agreement. . . .
AA standard form of bilateral agreementstandard form of bilateral agreement for the exchange of air routes wasfor the exchange of air routes was
prepared and recommended by the Conference as part of its final act. . . .prepared and recommended by the Conference as part of its final act. . . .
AnAn Interim Agreement on International Civil AviationInterim Agreement on International Civil Aviation was completed andwas completed and
opened for signature. It came into effect on June 6, 1945, thereby providingopened for signature. It came into effect on June 6, 1945, thereby providing
an interim basis for many phases of international civil aviation and aan interim basis for many phases of international civil aviation and a
constitution for the Provisional International Civil Aviation Organization.constitution for the Provisional International Civil Aviation Organization.
The interim agreement was replaced when the convention came into effectThe interim agreement was replaced when the convention came into effect
on April 4, 1947. . . .on April 4, 1947. . . .
Source: ICAOSource: ICAO

7. Basic Principles ofBasic Principles of
International Air LawInternational Air Law
 Territorial Sovereignty.Territorial Sovereignty. Every State has, to the exclusion of allEvery State has, to the exclusion of all
other States, the unilateral and absolute right to permit or denyother States, the unilateral and absolute right to permit or deny
entry into the area recognized as its territory and similar right toentry into the area recognized as its territory and similar right to
control all movements within such territory.control all movements within such territory.
 National Airspace.National Airspace. The territory of a sovereign State is threeThe territory of a sovereign State is three
dimensional, including within such territory the airspace abovedimensional, including within such territory the airspace above
its national lands and its internal and territorial waters.its national lands and its internal and territorial waters.
 Freedom of the Seas.Freedom of the Seas. Navigation on the surface of the high seas andNavigation on the surface of the high seas and
flight above such seas are free for the use of all.flight above such seas are free for the use of all.
 Nationality of Aircraft.Nationality of Aircraft. Aircraft have the characteristic ofAircraft have the characteristic of
nationality similar to that developed in maritime law applicablenationality similar to that developed in maritime law applicable
to ships. Thus aircraft have normally a special relationship to ato ships. Thus aircraft have normally a special relationship to a
particular State which is entitled to make effective the privilegesparticular State which is entitled to make effective the privileges
to which such aircraft may be entitled and such State is alsoto which such aircraft may be entitled and such State is also
reciprocally responsible for the international good conduct ofreciprocally responsible for the international good conduct of
such aircraft.such aircraft.
Source: Prof. John Cobb CooperSource: Prof. John Cobb Cooper

8. National Sovereignty Over AirspaceNational Sovereignty Over Airspace
 Article 1 of the Chicago Convention of 1944 reaffirmsArticle 1 of the Chicago Convention of 1944 reaffirms
Article 1 of the Paris Convention of 1919, by recognizingArticle 1 of the Paris Convention of 1919, by recognizing
the pre-existing rule of customary international law, thatthe pre-existing rule of customary international law, that
“every State has complete and exclusive sovereignty“every State has complete and exclusive sovereignty
over the airspace above its territory.”over the airspace above its territory.”
 Territory is defined by Article 2 of the ChicagoTerritory is defined by Article 2 of the Chicago
Convention as “the land areas and territorial watersConvention as “the land areas and territorial waters
adjacent thereto under the sovereignty, suzerainty,adjacent thereto under the sovereignty, suzerainty,
protection or mandate of each State.”protection or mandate of each State.”
 Article 3 of the Law of the Sea Convention extends theArticle 3 of the Law of the Sea Convention extends the
jurisdiction of coastal States to 12 miles, while Article 38jurisdiction of coastal States to 12 miles, while Article 38
establishes a right of transit in the straits for military andestablishes a right of transit in the straits for military and
commercial aircraft.commercial aircraft.

9. ““Complete and Exclusive Sovereignty”Complete and Exclusive Sovereignty”
Former ICAO Council President Assad Kotaite made this point on theFormer ICAO Council President Assad Kotaite made this point on the
willingness of States to acquiesce to intrusions on their “completewillingness of States to acquiesce to intrusions on their “complete
and exclusive sovereignty”:and exclusive sovereignty”:
 The adherence of States to international law is voluntary, not due toThe adherence of States to international law is voluntary, not due to
external coercion. International law is both obligatory (when Statesexternal coercion. International law is both obligatory (when States
adhere to Conventions and treaties) and voluntary (because it is theadhere to Conventions and treaties) and voluntary (because it is the
decision of States freely to adhere to it). ICAO has no enforcementdecision of States freely to adhere to it). ICAO has no enforcement
power, so in a sense the weakness of interional law is also itspower, so in a sense the weakness of interional law is also its
strength: weakness because there is no authority to impose it, butstrength: weakness because there is no authority to impose it, but
strength because this situation obliges States to work things out instrength because this situation obliges States to work things out in
the common interest, on an equal basis. International law is notthe common interest, on an equal basis. International law is not
designed to protect the interest of States, but rather to protect thedesigned to protect the interest of States, but rather to protect the
persons flying.persons flying.
 Assad Kotaite, My Memoirs 42 (ICAO 2013).Assad Kotaite, My Memoirs 42 (ICAO 2013).

10. National Sovereignty Over AirspaceNational Sovereignty Over Airspace
 Though Article 5 of the Chicago Convention authorizedThough Article 5 of the Chicago Convention authorized
certain rights of innocent passage for nonscheduledcertain rights of innocent passage for nonscheduled
flights, scheduled flights were limited under Article 6 toflights, scheduled flights were limited under Article 6 to
those situations in which the permission or authorizationthose situations in which the permission or authorization
of the underlying State was conferred.of the underlying State was conferred.
 Article 6 of the Chicago Convention prohibits scheduledArticle 6 of the Chicago Convention prohibits scheduled
operations except with the permission or authorizationoperations except with the permission or authorization
of the State in whose territory an aircraft wishes to fly,of the State in whose territory an aircraft wishes to fly,
and only in accordance with the terms established byand only in accordance with the terms established by
that State.that State.
 Article 7 of the Chicago Convention gives to each nationArticle 7 of the Chicago Convention gives to each nation
the right to reserve cabotage to itself. The secondthe right to reserve cabotage to itself. The second
sentence of Article 7 prohibits States from entering “intosentence of Article 7 prohibits States from entering “into
any arrangements which specifically grant any suchany arrangements which specifically grant any such
privilege on an exclusive basis to any other State or anprivilege on an exclusive basis to any other State or an
airline of any State, and not to obtain any such exclusiveairline of any State, and not to obtain any such exclusive
privilege from any other State.”privilege from any other State.”

11. Aircraft NationalityAircraft Nationality
 Article 17 of the Chicago Convention provides that,Article 17 of the Chicago Convention provides that,
“Aircraft shall have the nationality of the State in which“Aircraft shall have the nationality of the State in which
they are registered.”they are registered.”
 Article 18 provides that aircraft may not be registered inArticle 18 provides that aircraft may not be registered in
more than one State, though registration may bemore than one State, though registration may be
changed from one State to another.changed from one State to another.
 Article 19 provides that registration, and transfersArticle 19 provides that registration, and transfers
thereof, shall be according to the domestic laws of thethereof, shall be according to the domestic laws of the
registering State.registering State.
 ArticleArticle 83bis83bis allows the registration functions to beallows the registration functions to be
transferred to another State better able to fulfill suchtransferred to another State better able to fulfill such
regulatory requirements.regulatory requirements.

12. StateDutiesStateDuties
 Article 12 of the Chicago Convention requires that States insure that aircraftArticle 12 of the Chicago Convention requires that States insure that aircraft
flying over their territory or carrying their nationality mark shall complyflying over their territory or carrying their nationality mark shall comply
with the rules and regulations governing flight there in force.with the rules and regulations governing flight there in force.
 Over the high seas, the rules in force are those established under theOver the high seas, the rules in force are those established under the
Convention (i.e., SARPs promulgated by ICAO).Convention (i.e., SARPs promulgated by ICAO).
 Under Article 21, the registering State must report to ICAO data revealingUnder Article 21, the registering State must report to ICAO data revealing
the ownership and control of aircraft it registers. It also must makethe ownership and control of aircraft it registers. It also must make
available to other contracting States, or ICAO, information concerning theavailable to other contracting States, or ICAO, information concerning the
registration and ownership of aircraft registered in it, on demand.registration and ownership of aircraft registered in it, on demand.
 Under Articles 31 and 32, the State must provide such aircraft with aUnder Articles 31 and 32, the State must provide such aircraft with a
certificate of airworthiness, and issue certificates of competency andcertificate of airworthiness, and issue certificates of competency and
licenses for pilots and flight crew on such aircraft.licenses for pilots and flight crew on such aircraft.
 Under Article 30, the State must also issue licenses for aircraft radioUnder Article 30, the State must also issue licenses for aircraft radio
equipment.equipment.
 Pursuant to Article 33, other States, in turn, have a duty to recognizePursuant to Article 33, other States, in turn, have a duty to recognize
certificates of airworthiness and personnel certificates of competency andcertificates of airworthiness and personnel certificates of competency and
licenses as valid, but only so long as the requirements under which they arelicenses as valid, but only so long as the requirements under which they are
issued “are equal to or above the minimum standards which may beissued “are equal to or above the minimum standards which may be
established” by ICAO.established” by ICAO.

13. Duties Imposed Upon AircraftDuties Imposed Upon Aircraft
 Under Article 20, every international aircraftUnder Article 20, every international aircraft
must display its nationality and registrationmust display its nationality and registration
marks.marks.
 Pursuant to Article 29, certain documents mustPursuant to Article 29, certain documents must
be carried aboard the aircraft, including itsbe carried aboard the aircraft, including its
certificate of registration, its certificate ofcertificate of registration, its certificate of
airworthiness, the licenses for each member ofairworthiness, the licenses for each member of
the crew, its journey log book, its radio license,the crew, its journey log book, its radio license,
the names and places of embarkation andthe names and places of embarkation and
destination of any passengers aboard, and adestination of any passengers aboard, and a
manifest and detailed declarations of any cargomanifest and detailed declarations of any cargo
aboard.aboard.

14. Airline NationalityAirline Nationality
 Airline nationality is nowhere addressed in theAirline nationality is nowhere addressed in the
Chicago Convention, though it has become anChicago Convention, though it has become an
important part of bilateral air transportimportant part of bilateral air transport
agreements, as well as the multilateral Transitagreements, as well as the multilateral Transit
and Transport Agreements, whose “substantialand Transport Agreements, whose “substantial
ownership and effective control” requirementsownership and effective control” requirements
have effectively precluded adoption of thehave effectively precluded adoption of the
maritime law notion of “flags of convenience”maritime law notion of “flags of convenience”
into international aviation.into international aviation.

15. Aircraft CategorizationAircraft Categorization
 The Chicago Convention distinguishes between civil and State aircraft,The Chicago Convention distinguishes between civil and State aircraft,
manned and unmanned (or pilotless) aircraft, and scheduled and non-manned and unmanned (or pilotless) aircraft, and scheduled and non-
scheduled services.scheduled services.
 Under Article 3, the Chicago Convention explicitly applies “only to civilUnder Article 3, the Chicago Convention explicitly applies “only to civil
aircraft,” and not to State aircraft, though the definition of “aircraft” isaircraft,” and not to State aircraft, though the definition of “aircraft” is
nowhere defined in the Convention. Certain types of aircraft arenowhere defined in the Convention. Certain types of aircraft are
presumptively State aircraft, including “Aircraft used in military, customspresumptively State aircraft, including “Aircraft used in military, customs
and police services . . . .”and police services . . . .”
 Article 3(d) provides that when issuing regulations for State aircraft, theArticle 3(d) provides that when issuing regulations for State aircraft, the
contracting State “will have due regard for the safety of navigation of civilcontracting State “will have due regard for the safety of navigation of civil
aircraft.” Traffic rights are circumscribed by Article 3(c), which providesaircraft.” Traffic rights are circumscribed by Article 3(c), which provides
that State aircraft may not fly over or land on the territory of another Statethat State aircraft may not fly over or land on the territory of another State
“without authorization by special agreement or otherwise, and in“without authorization by special agreement or otherwise, and in
accordance with the terms thereof.”accordance with the terms thereof.”
 Article 3bis reaffirms the customary international law principle that “everyArticle 3bis reaffirms the customary international law principle that “every
State must refrain from resorting to the use of weapons against civil aircraftState must refrain from resorting to the use of weapons against civil aircraft
in flight”, though it can require civil aircraft flying above its territoryin flight”, though it can require civil aircraft flying above its territory
without permission to land at a designated airport. But “in the case ofwithout permission to land at a designated airport. But “in the case of
interception, the lives of persons on board and the safety of aircraft mustinterception, the lives of persons on board and the safety of aircraft must
not be endangered.”not be endangered.”

16. Rights of Overflight and TrafficRights of Overflight and Traffic
RightsRights
 Scheduled Aircraft.Scheduled Aircraft. The general rule on traffic rights is set forth in Article 6The general rule on traffic rights is set forth in Article 6
of the Chicago Convention: “No scheduled international air service may beof the Chicago Convention: “No scheduled international air service may be
operated over or into the territory of a contracting State, except with theoperated over or into the territory of a contracting State, except with the
special permission or other authorization of that State, and in accordancespecial permission or other authorization of that State, and in accordance
with the terms of such permission or authorization.” This provision is thewith the terms of such permission or authorization.” This provision is the
foundation for the negotiation of air transport agreements between nations,foundation for the negotiation of air transport agreements between nations,
for without permission to fly across another’s territory, a scheduled aircraftfor without permission to fly across another’s territory, a scheduled aircraft
may not enter another’s airspacemay not enter another’s airspace
 Non-scheduled Aircraft.Non-scheduled Aircraft. Although the operations of scheduled aircraft areAlthough the operations of scheduled aircraft are
restricted, under Article 5, aircraft engaged in non-scheduled flights enjoyrestricted, under Article 5, aircraft engaged in non-scheduled flights enjoy
the right to fly into or across the territory of another State, and to makethe right to fly into or across the territory of another State, and to make
stops for non-traffic purposes (first and second freedom rights). However,stops for non-traffic purposes (first and second freedom rights). However,
the State flown over has the right to require the non-scheduled aircraft tothe State flown over has the right to require the non-scheduled aircraft to
land, and to follow prescribed routes, or obtain special permission for suchland, and to follow prescribed routes, or obtain special permission for such
flights.flights.
 State Aircraft.State Aircraft. Pursuant to Article 3, State aircraft may not fly over or landPursuant to Article 3, State aircraft may not fly over or land
on the territory of another State “without authorization by specialon the territory of another State “without authorization by special
agreement or otherwise, and in accordance with the terms thereof.”agreement or otherwise, and in accordance with the terms thereof.”
 Pilotless Aircraft.Pilotless Aircraft. Pursuant to Article 8, pilotless aircraft may not fly over thePursuant to Article 8, pilotless aircraft may not fly over the
territory of a contracting State “without special authorization and interritory of a contracting State “without special authorization and in
accordance with the terms of such authorization.” Such flights must beaccordance with the terms of such authorization.” Such flights must be
“controlled as to obviate danger to civil aircraft.”“controlled as to obviate danger to civil aircraft.”

17. THE CHICAGOTHE CHICAGO
CONVENTION AS ACONVENTION AS A
SOURCE OFSOURCE OF
INTERNATIOINALINTERNATIOINAL
AIR LAWAIR LAW
Professor Dr.Professor Dr.
Paul StephenPaul Stephen
DempseyDempsey
Director, Institute of Air & SpaceDirector, Institute of Air & Space
LawLaw
McGill UniversityMcGill University
CopyrightCopyright © 2014 by Paul Stephen Dempsey.© 2014 by Paul Stephen Dempsey.

18. BlacklistingBlacklisting
Professor Dr. Paul Stephen DempseyProfessor Dr. Paul Stephen Dempsey
Director, Institute of Air & Space LawDirector, Institute of Air & Space Law
McGill UniversityMcGill University
www.iasl.mcgill.cawww.iasl.mcgill.ca
http://www.mcgill.ca/iasl/