Sovereignty Over Airspace: International Law, Current Challenges, and Future Developments for Global Aviation

The issue of sovereignty lies at the very heart of international aviation because all aviation relations are built upon it. The purpose of this paper is to discuss the spectacular evolution of the concept of sovereignty in the air by adopting a multifaceted approach to this issue. In the first part the concept of sovereignty under general international law is briefly explained, before defining it in the more specific framework of public international air law. This discussion is followed by an analysis of the way states open their airspace for the purpose of entering into commercial agreements and conducting air transport activities. Overall, a selection of accidents that were directly linked to the notion of national security sovereignty are examined. Special reference is made to Cyprus and Gibraltar, both countries having territorial conflicts that directly affect their ability to exercise complete and exclusive sovereignty above their airspace. Particular attention is granted to some more recent commercial, technical, legal and environmental developments in the European Union that touch upon the concept of sovereignty such as the delegation of air navigation services from one state to another, the delimitation between airspace and outer space, the introduction of a European Emission Trading Scheme, insurance requirements, and the frequently updated list of airlines banned in the European Union.

The Concept of Sovereignty Under Public International Law

The Montevideo Convention 19331 codified largely accepted principles of customary international law and defines a State as an entity having a permanent population, a defined territory, a government and enjoying the capacity to enter into relations with other States. The existence of a State appears to be a question of fact because article 3 of the Montevideo Convention provides that ‘’ the political existence of the state is independent of recognition by the other states’’. The modern concept of State sovereignty is often traced back to the Treaty of Westphalia which laid down the basic principles for the recognition of a State as being a sovereign State: territorial integrity, border inviolability, the supremacy of the State and a supreme law making body within the territory.[2] The concept of sovereignty lies at the heart of the existence of all States. It is a reflection of their ‘’exclusive, supreme and inalienable legal authority to exercise power within their area of governance’’.[3] A sovereign State possesses legal, executive and judicial powers and has authority over its subjects within its territory, to the exclusion of all other States. Sovereignty is the basis for the doctrines of responsibility, nationality and jurisdiction.4 Article 2(2) of the Charter of the United Nations recognizes that all States are equal and sovereign because they are all politically independent).[5] The United Nations Convention on the Law of the Sea6 provides that the sovereignty of States extends over 12 nautical miles, called the territorial sea (article 3). Following the theory laid down by Hugo Grotius in his Mare Liberum[7], it was established under international customary law that the high seas cannot be appropriated by any State. In other words, no State can claim sovereign rights above these regions. The right of innocent passage was recognized for all civil and military ships of all States. Moreover States must not infringe upon the rights of the coastal State or disrupt the peace or represent a security threat for this State (Convention on the law of the Sea, articles 17 and 19).

The Concept of Sovereignty Under Public International Air Law

Cuius est solum, eius est usque ad caelum et ad inferos ("for whoever owns the soil, it is theirs up to Heaven and down to Hell."), This eloquent Latin proverb was first used in the 13th century by the Roman commentator Accursius and was subsequently introduced into English law by William Blackstone in his Commentaries on the Law of England (1966).8 Under this doctrine, the owner of the land was the owner of the whole airspace above it without any limits. Obviously such conception is no valid anymore because it is incompatible with the modern needs of the air transport industry but is worth mentioning because it was largely accepted until the birth of the civil aviation.

As early as 1901, the French legal scholar Paul Fauchille wrote an article entitled ‘’Le domain aerien et le regime juridique des aerostats’’ in which he referred to, inter alia, the freedom of the air.9 Some years later, John Westlake, a British lawyer, took an opposite view. He was in favour of recognising the principle of sovereignty in the air as the primary principle of public international air law and attempted to put an end to the transit rights of balloons and to the use of particular equipment such as wireless telegraph.10

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States and the aviation industry have always been connected by a particular link. The Paris Convention11 and the Chicago Convention12 have been enacted after two destructive world wars. Wars reinforce nationalism and give to the respectable principle of State sovereignty a defensive character.13 Numerous airlines were created by National Defence authorities of States and constituted strategic national reserves for the military forces in cases of war or armed conflict. In the same way, an important part of the airspace used to be and is still reserved for military activities. This separation of the airspace between civil and military users is a reflection of the national security priority lying behind the concept of sovereignty.14

Article 1 of the Paris Convention 1919 provided that each contracting party recognized that every Power had complete and exclusive sovereignty over the airspace above their territory. Article 1 of the Chicago Convention reproduces this formula in an identical way. Article 2 defines territory as ‘’the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State’’. Some of these terms are nowadays outdated or obsolete. Indeed, protectorates and mandates ceased to exist even before the entry into force of the Chicago Convention.15

A minority of authors, such as Nicolas Matte, argue that the airspace belongs to the ‘’physical space’’ in which the world community interacts and therefore no parts of it can be made subject to sovereignty claims from any nation, even for a limited period of time. Matte believes that the airspace is a common good that must be used in a peaceful way by humanity. Hence such a conception must be predominant over ‘’egoistic’’ claims of individual States that seek their own interests and immediate economic benefits.16

The International Air Services Transit Agreement was signed in 194417 and since then greatly contributed to the development of the legal framework regulating international civil aviation. It was signed by 122 countries and gives to the airlines of the signatories overflight rights and the right to land in the territory of other contracting States for non-traffic purposes such as refuelling. Its provisions are in accord with the provisions of the Chicago Convention on sovereignty over the airspace (the drafters of this legal instrument being the same as the drafters of the Chicago Convention).

Sovereignty in the Air and the Exchange of Traffic Rights

Nowadays, States cannot seek their own profit without having regard for the interests of the other States because any political action of one State has political and economic repercussions at a regional or world scale. Smaller nations can hardly survive without interacting with more developed countries. In the same way, powerful countries need to trade with developing countries. Aviation was a crucial tool that led to the globalisation of economy and trade liberalisation.18

Article 6 of the Chicago Convention provides that ‘’no scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or authorisation of that State, and in accordance with the terms of such permission or authorisation’’. In other words, this provision means that the airspace of all contracting States is closed de iure, until States decide to open it de facto. Until recently, bilateral air service agreements remained the traditional and preferred mode for States to open their airspace to other States, for the purposes of entering into international air transport operations and regulating the economic aspect of these exchanges.19 The most famous model bilateral air service agreement was signed between the United States and the United Kingdom in 1944 and is commonly referred to as the Bermuda I agreement. This agreement was a compromise between the opposing views of the parties and gave birth to a regime based on fair and equal opportunities to compete, a double approval of tariffs and capacity possibilities based upon the needs of the public for air transport operations.20 It can be said that at the time of the signature of this agreement, States were still strongly intervening into the regulation of air transport and thus still attached to the concept of sovereignty. Naveau argues that the principle of sovereignty in the air explains why the air industry is one of the very few areas of trade where bilateralism survived.21

As written by Naveau in his articles, in developed countries the economic sovereignty of States on the economic regulation of air transport is now fading away in the wake of the liberalisation of the aviation market. This trend that started in the USA in 1978 and that was gradually introduced into the EU altered the institutional framework of air operations. Before 1987, national markets within the EU were fragmented and bilateral agreements were still governing the exchange of traffic rights between EU countries.22 With the full liberalisation of the internal market of the European Union in 1997, any EU carrier can operate on any EU route, including purely domestic routes. Full cabotage rights within the EU are an astonishing development and a great step away from the traditional conception of sovereignty. There are now more international routes, new airlines and many airports are on the way to privatisation. The EU and the US signed Open Skies agreements under which airlines in the EU are able to fly to the US, from any airport in the EU, without having regard to their nationality. These changes involve renouncing to the nationalistic conceptions that inspired the drafters of the major legal instruments public international air law after the Second World War.23

Sovereignty is however still expressed by the need to comply with the requirements of national ownership and effective control. Under article 6 of the Chicago Convention, a State granting an authorisation to the airline of another contracting State to operate flights to and from this country, must be convinced that the relevant airline is substantially owned and controlled by the State and / or the citizens of the other party. If this condition is not satisfied, the agreement in force between the two countries may be suspended.Continued on Next Page »