THE CHICAGO

CONVENTION AS A
SOURCE OF
INTERNATIOINAL
AIR
LAW
Professor Dr. Paul Stephen
Dempsey

Director, Institute of Air & Space Law

McGill University
Copyright 2014 by Paul Stephen Dempsey.

Sources of
International Air Law

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

The Chicago Convention of

1944 has two principal
functions:
I.

II.

THE CHICAGO
CONVENTION IS A
SOURCE OF
INTERNATIONAL AIR
LAW (Articles 1-42)
THE CHICAGO
CONVENTION IS THE
CONSTITUTION OF
AN INTERNATIONAL
ORGANIZATION
(Articles 43-96) ICAO

The Chicago Conference of

1944
54 nations met at Chicago from
November 1 to December 7,
1944, to "make
arrangements for the
immediate establishment of
provisional world air routes
and services" and "to set up
an interim council to collect,
record and study data
concerning international
aviation and to make
recommendations for its
improvement.

Accomplishments of the
Chicago Conference

[T]he Convention on International Civil Aviation, was concluded and

opened for signature. . . . [T]his instrument provided a complete
modernization of the basic public 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 on April 4, 1947.
The Convention also provided the constitution for a new permanent
international organization, the International Civil Aviation Organization,
which . . . replaced the previous international organization of more
limited scope, the International Commission for Air Navigation.

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

Basic Principles of
International Air Law

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.

Source: Prof. John Cobb Cooper

National Sovereignty Over

Airspace

Article 1 of the Chicago Convention of 1944

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

Complete and Exclusive Sovereignty

Former ICAO Council President Assad Kotaite made this point on
the willingness of States to acquiesce to intrusions on their
complete and exclusive sovereignty:

The adherence of States to international law is voluntary, not

due to external coercion. International law is both obligatory
(when States adhere to Conventions and treaties) and voluntary
(because it is the decision of States freely to adhere to it). ICAO
has no enforcement power, so in a sense the weakness of
interional law is also its strength: weakness because there is no
authority to impose it, but strength because this situation
obliges States to work things out in the common interest, on an
equal basis. International law is not designed to protect the
interest of States, but rather to protect the persons flying.
Assad Kotaite, My Memoirs 42 (ICAO 2013).

National Sovereignty Over

Airspace

Though Article 5 of the Chicago Convention authorized

certain rights of innocent passage for nonscheduled
flights, scheduled flights were limited under Article 6 to
those situations in which the permission or authorization of
the underlying State was conferred.
Article 6 of the Chicago Convention 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.
Article 7 of the Chicago Convention gives to each nation
the right to reserve cabotage to itself. The second
sentence of Article 7 prohibits States from entering into
any arrangements which specifically grant any such
privilege on an exclusive basis to any other State or an
airline of any State, and not to obtain any such exclusive
privilege from any other State.

Aircraft Nationality

Article 17 of the Chicago Convention provides that,

Aircraft shall have the nationality of the State in
which they are registered.
Article 18 provides that aircraft may not be
registered in more than one State, though
registration may be changed from one State to
another.
Article 19 provides that registration, and transfers
thereof, shall be according to the domestic laws of
the registering State.
Article 83bis allows the registration functions to be
transferred to another State better able to fulfill
such regulatory requirements.

State Duties

Article 12 of the Chicago Convention requires that States insure that

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

Duties Imposed Upon

Aircraft

Under Article 20, every international aircraft

must display its nationality and registration
marks.
Pursuant to Article 29, certain documents
must be carried aboard the aircraft,
including its certificate of registration, its
certificate of airworthiness, the licenses for
each member of the crew, its journey log
book, its radio license, the names and
places of embarkation and destination of
any passengers aboard, and a manifest and
detailed declarations of any cargo aboard.

Airline Nationality

Airline nationality is nowhere addressed in

the Chicago Convention, though it has
become an important part of bilateral air
transport agreements, as well as the
multilateral Transit and Transport
Agreements, whose substantial ownership
and effective control requirements have
effectively precluded adoption of the
maritime law notion of flags of
convenience into international aviation.

Aircraft Categorization

The Chicago Convention distinguishes between civil and State

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

Rights of Overflight and

Traffic Rights

Scheduled Aircraft. The general rule on traffic rights is set forth in Article
6 of the Chicago Convention: No scheduled international air service may
be operated over or into the territory of a contracting State, except with
the special permission or other authorization of that State, and in
accordance with the terms of such permission or authorization. This
provision is the foundation for the negotiation of air transport
agreements between nations, for without permission to fly across
anothers territory, a scheduled aircraft may not enter anothers airspace
Non-scheduled Aircraft. Although the operations of scheduled aircraft
are restricted, under Article 5, aircraft engaged in non-scheduled flights
enjoy the 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, the State flown over has the right to require the non-scheduled
aircraft to land, and to follow prescribed routes, or obtain special
permission for such flights.
State Aircraft. Pursuant to Article 3, State aircraft may not fly over or
land on the territory of another State without authorization by special
agreement or otherwise, and in accordance with the terms thereof.
Pilotless Aircraft. Pursuant to Article 8, pilotless aircraft may not fly over
the territory of a contracting State without special authorization and in
accordance with the terms of such authorization. Such flights must be
controlled as to obviate danger to civil aircraft.

THE CHICAGO
CONVENTION AS A
SOURCE OF
INTERNATIOINAL
AIR LAW
Professor Dr.
Paul Stephen
Dempsey

Director, Institute of Air &

Space Law
McGill University
Copyright 2014 by Paul Stephen
Dempsey.

Blacklisting
Professor Dr. Paul Stephen Dempsey
Director, Institute of Air & Space Law
McGill University

www.iasl.mcgill.ca
http://www.mcgill.ca/iasl/