air law

Sovereignty

A basic principle of international air law is that every state has complete and exclusive sovereignty over the airspace above its territory, including its territorial sea. At the turn of the 20th century the view that airspace, like the high seas, should be free was sometimes advanced. But the principle of airspace sovereignty was unequivocally affirmed in the Paris Convention on the Regulation of Aerial Navigation (1919) and subsequently by various other multilateral treaties. The principle is restated in the Chicago Convention on International Civil Aviation (1944). Airspace is now generally accepted as an appurtenance of the subjacent territory and shares the latter’s legal status. Thus, under the Geneva Convention on the High Seas (1958) as well as under international customary law, the freedom of the high seas applies to aerial navigation as well as to maritime navigation. Vertically, airspace ends where outer space begins.

It follows from the principle of airspace sovereignty that every state is entitled to regulate the entry of foreign aircraft into its territory and that persons within its territory are subject to its laws. States normally permit foreign private (i.e., nongovernmental and noncommercial) aircraft to visit or fly through their territory without too much difficulty. Such aircraft registered in states that are parties to the 1944 Chicago Convention are, under the convention, allowed into the territories of all other contracting states without prior diplomatic permission if not engaged in the carriage of passengers, mail, or cargo for reward.

Commercial air transport is divided into scheduled air services and nonscheduled flights. Charter flights fall mostly, but not invariably, into the latter category. Under the Chicago Convention, contracting states agree to permit aircraft registered in the other contracting states and engaged in commercial nonscheduled flights to fly into their territory without prior diplomatic permission and, moreover, to pick up and discharge passengers, cargo, and mail, but in practice this provision has become a dead letter.

For scheduled air services, the privilege of operating commercial services through or into a foreign country was, at the time of the 1944 Chicago conference, split into five so-called freedoms of the air. The first is the privilege of flying across a country nonstop; the second, of flying across with a stop for technical purposes only. These two freedoms are also known as transit rights. A large number of ICAO members are parties to the 1944 International Air Services Transit Agreement, placing these rights on a multilateral basis. The other freedoms of the air are known as traffic rights, referring to passengers, mail, or cargo carried on a commercial service. The third of the five freedoms is the privilege of bringing in and discharging traffic from the home state of the aircraft or airline; the fourth is that of picking up traffic for the home state of the aircraft or airline; the fifth is that of picking up traffic for or discharging traffic from third states in the territory of the state granting the privilege. This fifth freedom is the main bargaining point in the exchange of traffic rights among states. Attempts have been made since 1944 to create other freedoms, but each new freedom usually represents in practice a new restriction.

Efforts to conclude a widely acceptable multilateral agreement on traffic rights were unsuccessful, and such rights have continued to be handled through bilateral international agreements. These agreements fix the routes to be served, the principles governing the capacity of the agreed services (frequency of the service multiplied by the carrying capacity of the aircraft used), and the procedures for the approval of fares and tariffs by the respective governments. Most agreements require that airlines operating the same routes consult among themselves before submitting their fares to the two governments concerned for approval, and many agreements specify the International Air Transport Association (IATA), an association of airlines, as the organ for such consultations. The right to carry domestic traffic between points within a state is normally reserved to that state’s own airlines. A bilateral agreement signed at Bermuda in 1946 between the United Kingdom and the United States set a pattern that has generally been followed, although the formal Bermuda-type agreement is likely to be accompanied by confidential memoranda attaching various restrictions.

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Private rights

The principle of airspace sovereignty in international law is probably well reflected in the maxim, Cujus est solum ejus est usque ad coelum et ad inferos (“he who owns the land owns what is above and below it”). In private law the acceptance of this maxim for a long time posed little difficulty, and the Code Napoléon of 1804 adopted it almost verbatim; in more recent times, however, it is more than questionable whether such a principle can be accepted without qualification. Both the German Civil Code (1896) and the Swiss Civil Code (1907), while recognizing the principle of Cujus est solum, adopted a functional approach, limiting the right of the owner to such a height and such a depth as are necessary for his enjoyment of the land. In common-law countries the courts have arrived at a broadly similar position. In France, too, both the doctrine and the courts have refused to take Cujus est solum literally. In one celebrated case, Clément Bayard v. Coquerel (1913), the Court of Compiègne, lending judicial authority for the first time to the theory of abuse of rights, awarded damages to a plaintiff whose balloon had been destroyed by “spite structures” erected by the defendant on his own land and ordered the offending spikes to be taken down.

In the course of the 1920s it became clear in most countries, either through judicial decisions or express legislation, that aircraft would be allowed to fly over the private properties of others in normal flight in accordance with aeronautical regulations. This immunity applies only to the mere passage of the aircraft and does not extend to damage caused by it or to other encroachments on the use or enjoyment of the land, such as excessively low flights.