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2.

Air Space :Various theories regarding air space


As pointed out earlier each State exercises complete sovereignty over its territory which comprises of lands, waters, maritime belts, air space, etc. According to the old view each State exercises sovereignty over its complete air space. In the modern times, this view is subjected to criticism and has been criticized by the jurists. There are several views or theories prevalent in this connection. According to the first view, air space is available for each State and the aircrafts of each State may pass through it without any obstruction. This view has been vehemently criticized because it is contrary to many international treaties. Each State exercises control over its air space and the aircrafts of another State can enter in its air space only after seeking its prior permission. In accordance with the second view, each State exercises control over its air space up to unlimited height. It is entitled to exercise complete control over it and may not permit the entry of the aircrafts of other States in this area. This view also does not seem to be correct because in view of the rapid scientific and technological developments aircrafts can go to a very high attitude. It is not possible for each State to exercise control over unlimited height. Since it is not possible to exercise control over unlimited air space, this view, has lost much of its relevance. According to third view, a State exercises control over the lower strata of the air space and its sovereignty is limited only to that extent. This view seems to be better than the other two views mentioned earlier because sovereignty can be effective only when the State can exercise control over it. However, the greatest difficulty in the general acceptance of this theory is that no State is prepared to accept it affirmatively. According to the fourth view, the State concerned can make rules in regard to the outer space so as to ensure its security. But only a few States of the world have capability to enforce such rules. Lastly, each State has sovereignty over air space extending to the unlimited height subject only to the providing of innocent passage to the aircrafts of other States. Only a few States of the world can effectively exercise such sovereignty. Thus there is a great controversy in respect of law relating to airspace. But there is general agreement regarding certain matters. There is general agreement that each State exercises over the airspace over its territory. This sovereignty is essential for the defence and security of the State. But at the same time there is need for the freedom of aerial navigation for commercial, scientific and humanitarian purposes.

With a view to reconcile these conflicting needs, the concept of functional sovereignty has been suggested. There is also the urgent need of evolving the legal regime of air space as new branch of international law.

2. Aerial Navigation
A number of international conventions have been concluded to regulate aerial navigation. The more important of them are given below (1) Paris Convention of Aerial Navigation 1919.This convention framed certain rules regarding aerial navigation during peace time. According to the convention, each State exercises complete sovereignty over its air space. Further, during peace, parties to the convention will give innocent passage to the other State parties to the convention. The convention did not frame rules for the period of war.

(2) Havana Convention.This convention was adopted mainly by the States of American continent. Several rules regarding aerial navigation were adopted under the convention.

(3) Convention for the Unification of Certain Rules Relating to International Carriage by Air or Warsaw Convention, 1929.This convention was signed at Warsaw on 12 October, 1929. According to Article 1 of the convention, the convention applies to all international carriage of persons, luggage or goods performed by aircraft for reward. It applies equally to gratuitous carriage by aircrafts performed by an air transport undertaking.

(4) Chicago Convention on International Civil Aviation, 1944.Chicago convention is the most important of all treaties and conventions relating to aerial navigation. It was signed by 53 States. This convention was concluded on 7th December, 1944 and entered into force on 14th April, 1947. The International Civil Aviation Organisation (ICAO) created framework for International Civil aviation including the principle that every State has complete and exclusive sovereignty over the airspace above its territory and that no scheduled flight may operate over the territory of a contracting State without its consert It is also important to note here that the convention confers on the ICAO Council the power to settle disputes between contracting parties and its decision is binding on the part. From 20 to 22 March, 2006. Civil aviation leaders from around the world have adopted a global strategy which will usher in a new era of openness and

transparency concerning safety information. Five Freedoms of air were for the first time declared under this convention. Some of the important provisions of the Chicago Convention on International Civil Aviation, 1944 are as follows :

(i)

The contracting States recognize that every State has complete and exclusive sovereignty over the airsppce above its territory.1

(ii) For the purposes of this Convention the territory of a State shall be deemed
be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.2

(iii) The Convention shall be applicable only to civil aircraft, and shall not be
applicable to State aircraft used in military, customs, and police services. No State aircraft of a contracting State shall fly over the territory of another Stale or land thereon without authorization by special agreement otherwise and in accordance with the terms thereof.3

(iv) Each contracting State agrees that all aircrafts of the other
contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observances of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission and subject to the right of State flown over to require landing. Each contracting State nevertheless reserves the right, for reasons of safety of flight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such flight. Such aircraft. engaged in the carriage of passengers, cargo, or mail for remuneration or hire on other than scheduled international air services, shall also, subject to the provisions, of Article 7, have the privilege of taking on or discharging passengers, cargo or mail, subject to the right of any State where such embarkation or discharge takes place to impose such regulations or limitation as it may consider desirable.4 (v)
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Last but not the least important provision runs as follows : No

Article 1 of the Chicago Convention on International Civil Aviation, 1944. Article 2. 3 Article 3 4 Article 5

scheduled International Air Service may be operated over or into the territory of a contracting State, except with the special permission or other authorisation of t h a t St a t e , a n d i n a c c o r d a n c e w i t h t h e t e r m s o f s u c h p e r mi s s i o n o r authorization .5 (vi) Aircrafts have the nationality of the State in which they are registered.6 but its registration may be changed from one State to another.7 Thus aerial navigation is generally controlled by several international treaties. Besides these multilateral treaties and conventions, many States have concluded bilateral treaties which govern their relations to aerial navigation.8

(vii) An aircraf t ma y be validl y r egistered in mo re than one State,

3. Five Freedoms of Air


Before and after the First World War many problems relating to international air transport arose. Because of the increase in the transport through airways, the need for definite rules of international law was felt. In order to evolve definite rules of international law regarding this a Conference was held at Chicago in 1944. This Conference is known as International Civil Aviation Conference, Chicago, November, 1944. This Conference declared the following five freedoms of air : (1) freedom to fly across foreign territory without landing (2) freedom to land for non-traffic purposes ; (3) freedom to disembark in foreign territory traffic originating in the mmmmmmState of the origin of the craft ; (4) freedom to pick up in any foreign country traffic destined for the State of ,,,,,,,,,,,,,,,,,,origin of aircraft ; and (5) freedom to carry traffic between two foreign countries. In order to give concrete shape to the above five freedoms two agreements were concluded. They are as follows : (1) Chicago International Air Services Transit Agreement, 1944.This

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Article 6 Article 17. 7 Article 18 8 Bin Cheng and R.H.F. Austin, "Air Law" in The Present State of International Law and other Essays, Edited by gProf. Dr. Maarten Bos. (1973), pp. 183-200 ; S. Bhat, "Safety in Air Recent Developments", I.J.I.L., Vol. 14 g(1974), pp. 386-399.

agreement incorporated the first two freedoms.9 (2) Chicago International Air Transport Agreement, 1944. This agreement incorporated the last three freedoms. But th is agreement was signed by a very few countries. Thus most of the States of the world agreed to provide the first two freedoms to each other. "The International Air Services Transit Agreement" or 'the two freedoms Agreement' has been widely accepted. The International Transport Agreement of the five freedoms" Agreement on the other hand has had a few adherents and that its effect is minimal at best." 10 It may be noted here that in the absence of multilateral treaties most of the States regulate their relations through bilateral treaties. A brief reference may also be made here to the International Civil Aviation Organisation which was established in 1947. A large number of the States are its members. This Organisation has made many rules relating to International Air Transport and International Air Traffic. The ICAO has been discussed in a little greater detail under the chapter "Specialized Agencies". Following are the treaties which have been adopted under this Organization:(1) Convention of 1948 on the International Recognition of Rights in Aircraft. (2) Rome Convention of 1952 on damage caused by foreign aircraft to their ccccccccccparty on the service. (3) Protocol of amendments of the Warsaw Convention, 1959 concerning the bbbbbbbbbliability of the Air Carrier to passengers and Cargo concluded at Hague in vvvvvvvvvv1955.

Edward Collins, International Law in a Changing World (1969), p. 173