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

The European Single Sky Project

According to Naveau referred to above, the concept of national sovereignty in relation to air law invaded the political and economic aspects of the air transportation industry. An illustration of this theory can be given by mentioning for instance, the very ambitious European Single European Sky project that aims to integrate resources in Europe and to radically restructure the structure and management of the European airspace. In my opinion, while carrying out this project European States do not give away their sovereignty but rather confer part of this sovereignty to a higher instance, namely the European Union, in the exercise of their sovereign rights. The member states of the European Union joined their efforts in order to achieve a Single European Sky. Under this project, the provision of air navigation services in the airspace of the 27 European Union countries will be harmonised. Realising that the airspace is a scarce good, airways in Europe will be used to their maximum capacity according to the needs of the aviation industry and not according to national boundaries.63

Functional airspace blocks (FABs) will be created to monitor air traffic. Currently there is already one FAB into operation in the Maastricht area. The role of Eurocontrol which is now the main air navigation service provider in Europe will be diminished. Eurocontrol is in charge of the Maastricht Upper Area Control on behalf of Germany (the north-west region of the country only), the Netherlands, Belgium and Luxembourg. It provides air traffic services for flights at an altitude between 7 and 10 km. The future functional airspace blocks will follow this exceptional model of international harmonisation of air traffic control.64

The Relationship Between Sovereignty, Safety Concerns and Consumer Protection

Safety has always been a subject matter of primary importance for ICAO as highlighted in the Preamble which declares that the Convention will lay down ‘’principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner’’ and Article 44 which states the International Civil Aviation Organization must ‘’ insure the safe and orderly growth of international civil aviation throughout the world’’.

Insurance Requirements

Under EC Regulation 785/200465 that was subsequently amended in 201066, all air carriers that operate flights to, from and within the European Union must subscribe specific insurance levels that are determined by their maximum take off weigh mass, in order to cover any claims arising from their second party liability (passengers, baggage and cargo) and third party liability. In case of violation of the provisions of this regulation, EU States can take actions such as the withdrawal of the operational license of these air carriers, forbid them from overflying EU States or prevent them from taking off from an EU airport until evidence of proper insurance is given to the relevant authorities.67 In my opinion, I believe that the existence and the severity of such sanctions is a clear example of the sovereign powers of States over their airspace. These measures are clearly consumer oriented but demonstrate that highly dissuasive measures can be taken by States to achieve a maximum level of passenger protection (and protection of third parties on the ground).

Banning of Airlines

Ensuring the highest levels of safety in the air has always been one of the priorities of the European Commission Mobility and Transport Department. In collaboration with EU Member States, the EU Commission enacted a list of airlines that are banned from operating within the European Union or whose operations are restricted because their safety records are alarming and are considered as unsafe according to European standards.68 This list is regularly updated and airlines that can prove that they substantially improved their safety standards to a level accepted by the international aviation community can ask the European Commission to be removed from this list. For example, in November 2011, two aircrafts of the fleet of TAGG Angolan Airlines were added to the list of aircrafts authorised to operate into the EU, while on the other hand, part of the fleet of Jordan Aviation was banned due to safety deficiencies.69 In the words of the Vice-President of the European Commission, Sim Kallas, ‘’ Safety comes first. We cannot afford any compromise in this area. Where we have evidence inside or outside the European Union that air carriers are not performing safe operations we must act to exclude any risks to safety."70 This practise illustrates another aspect of the exercise of the sovereignty of States above their airspace.

Conclusion

As a conclusion, we can say that from the Latin maxim of property law granting the owner of the land, a right of complete ownership of the airspace above it to the opinion of the Advocate General concerning the inclusion of aviation into the European ETS, the concept of sovereignty greatly evolved. In the economic field, the progressive move from bilateralism towards multilateralism and open skies agreement appears to suggest that the traditional conception of sovereignty may be archaic. With new developments such as States delegating part of their sovereign powers to supranational organisations such as the European Union for the purpose of entering into plurilateral aviation agreements that are indented to be more flexible and brings more benefits for airlines and passengers or the emergence of environmental concerns such as the inclusion of aviation into the European Emissions Trading Scheme, the original concept of sovereignty is being drastically challenged. Fortunately, attacks against civilian aircrafts remain rare but nevertheless, then years after the 9/11 terrorist attacks in the USA, issues relating to the protection of national security are still of prime importance. Because of its particular character –air transportation being truly international activitythe concept of sovereignty in the air will probably remain respectable principle that will continue to protect States against interferences from foreign governments but at the same time its definition may need to be reconsidered in order to meet contemporary realities and solve the issues that continue to divide countries with longstanding territorial conflicts. 

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References

Books

H. Grotius, Mare Liberum sive de jure quod Batavis competit ad Indicana commercia dissertatio (1609).

P. Haanappel, The Law and Policy of Outer Space – A Comparative Approach, Luwer Law International (2003).

Shawcross & Beaumont, Air Law 37, 4th ed. (2007).

Erwin Von Den Steinen, National Interest and International Aviation, Kluwer Law International, 2006.

Articles

M. Franklin & S. Potter, Sovereignty over Airspace and the Chicago Convention: Northern Cyprus, 35 (1) Air and Space Law 63-70 (2010).

S. Kaiser, Sovereignty in the Air: From National Security to the Single European Sky, 35 (1) Annals of Air and Space Law 154 (2008).

C. Lincoln Bouvé, Private Ownership of Airspace, 1 Air Law Revue 232, 376 (1930).

J. Naveau, Droit de l’Air et Nationalisme Historique, 15 Annals of Air and Space Law 183 (1990).

G. O’Reilly, Gibraltar: Sovereignty Disputes and Territorial Waters, http://80.33.141.76/ET2050_library/docs/med/gibraltar.pdf

European Legislation

Commission Regulation (EU) No 285/2010 of 6 April 2010 amending Regulation (EC) No 785/2004 of the European Parliament and of the Council on insurance requirements for air carriers and aircraft operators.

Protocol Consolidating the Eurocontrol International Convention Relating to Co-operation for the Safety of Air Navigation of 13 December 1960, as variously amended, signed at Brussels on 23 June 1997.

Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators.

International Legislation

Charter of the United Nations (26 June 1945), United Nations Conference on International Organisation Documents, vol. XV (1945), 335.

Convention Internationale Portant sur la Reglementation de la Navigation Aerienne, signed at Paris on 13 October 1919.

Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929.

Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Montreal on 28 May 1999, ICAO Doc 9740.

Convention on International Civil Aviation, signed at Chicago on 7 December 1944, ICAO Doc 7300/8, 9th Edition, (2006). Hereafter referred to as the Chicago Convention.

International Air Services Transit Agreement, signed at Chicago on 7 December 1944

Montevideo Convention on the Rights and Duties of States, signed at Montevideo on 26 December 1933.

Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies, signed at Munster on 24 October 1648.

United Nations Convention on the Law of the Sea (UNCLOS), signed at Montego Bay on 10 December 1982, 1833 U.N.T.S. 3, 397; 21 I.L.M. 1261 (1982).

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, signed at London, Moscow and Washington on 27 January 1967. UN Doc 610 UNTS 205 / 6 ILM 386 (1967) / [1967] ATS 24.

Leiden University Power Point Presentations

M. Bisset, power point presentation, The EU Emission Trading Scheme, Aircraft financing seminar, Leiden University, 24-25 November 2011.

P. Mendes de Leon, power point presentation, Economic Regulation under Bilateral Air Agreements, Leiden University, September 2011.

P. Mendes de Leon, power point presentation, The Chicago Convention, Leiden University, September 2011.

C. Mestre, power point presentation, EU Aviation External Relations, Leiden University, September 2011

P. Van Fenama, power point presentation, Bilaterals, Leiden University, September 2011.

Newspapers

Flight Global website, Pictures: Finnish F-18 engine check reveals effects of volcanic dust, http://www.flightglobal.com/news/articles/pictures-finnish-f-18-engine-check-reveals-effects-of-volcanic-340727/ 16 April 2010.

The Sydney Morning Herald, Qantas cancels flights for a third day, http://www.smh.com.au/travel/travel-news/qantas-cancels-flights-until-tuesday-afternoon-20100418-slv5.html 18 April 2010.

Time/CNN, The Worst, but Not the First, 12 September 1983.

Cases

R (on the application of Kibris Turk Hava Yollari & CTA Holidays) v Secretary of State for Transport (republic of Cyprus) [2009] All ER (D) 295 (Jul). [2009] EWHR 1918 (Admin).

Websites

Aviation Safety Network website, http://aviation-safety.net

Defence News – A Gannet Company website, http://www.defensenews.com/story.php?i=4692874

D. Evans, Vincennes: A Case study http://web.archive.org/web/20060527221409/http://dolphin.upenn.edu/~nrotc/ns302/20note.html

Eurocontrol website http://www.eurocontrol.int/articles/about-muac

Europa website http://europa.eu/legislation_summaries/internal_market/single_market_services/financial_services_insurance/l24300_en.htm

European Commission Mobility and Transport Department website http://ec.europa.eu/transport/air-ban/list_en.htm, last visited (16-11-2011).

Gibraltar Viewpoint Blogspot website http://gibraltarviewpoint.blogspot.com/2011/04/britain-will-defend-its-sovereignty-and.html

Transport & Environment website, Advocate’s opinion emphatically rejects airlines’ ETS complaints http://www.transportenvironment.org/News/2011/10/Advocates-opinion-emphatically-rejects-airlines-ETS-complaints/

The UK Telegraph website, http://www.telegraph.co.uk/news/worldnews/europe/iceland/8528915/Iceland-shuts-airspace-after-volcanic-eruption.html

Other Materials

European Commission Press Release of 21 November 2001, Aviation: Commission updates the EU list of air carriers subject to an operating ban, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1375&format=HTML&aged=0&language=en

A. Kost, Responsibility and Liability for Air Navigation Services (Master Thesis at Leiden University) (2004).

Private air law reader, Leiden University 2011-2012. Course leader Prof Mendes de Leon.

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1.) The Montevideo Convention on the Rights and Duties of States, signed at Montevideo on 26 December 1933.

2.) Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies, signed at Munster on 24 October 1648.

3.) S. Kaiser, Sovereingnty in the Air: From National Security to the Single European Sky’, 35 (1) Annals of Air and Space Law 154 (2008).

4.) Shawcross & Beaumont, Air Law 37, 4^th ed. (2007).

5.) Charter of the United Nations (26 June 1945), United Nations Conference on International Organisation Documents, vol. XV (1945), 335 ff., art. 2(7).

6.) The United Nations Convention on the Law of the Sea (UNCLOS), signed at Montego Bay on 10 December 1982, 1833 U.N.T.S. 3, 397; 21 I.L.M. 1261 (1982).

7.) H. Grotius, Mare Liberum, sive de jure quod Batavis competit ad Indicana commercia dissertatio (1609).

8.) C. Lincoln Bouvé, Private Ownership of Airspace, 1 Air Law Rev. 232, 376 (1930)at 246–248.

9.) Air and Space Law (2008) 67.

10.) Ibid.

11.) Convention Internationale Portant sur la Reglementation de la Navigation Aerienne, signed at Paris on 13 October 1919.

12.) Convention on International Civil Aviation, signed at Chicago on 7 December 1944, ICAO Doc 7300/8, 9th Edition, (2006). Hereafter referred to as the Chicago Convention.

13.) J. Naveau, Droit de l’Air et Nationalisme Historique, 15 Annals of Air and Space Law 183 (1990).

14.) Ibid.

15.) P. Mendes de Leon, power point presentation, The Chicago Convention, Leiden University, September 2011.

16.) See supra note 10 at 184.

17.) International Air Services Transit Agreement, signed at Chicago on 7 December 1944, 84 UNTS 389, ICAO Doc 7500.

18.) See supra note 10 at 184.

19.) P. Mendes de Leon, power point presentation, Economic Regulation under Bilateral Air Agreements, Leiden University, September 2011.

20.) P. Van Fenama, power point presentation, Bilaterals, Leiden University, September 2011.

21.) See supra note 13 at 185.

22.) C. Mestre, power point presentation, EU Aviation External Relations, Leiden University, September 2011.

23.) Ibid.

24.) E. V. D. Steinen, National Interest and International Aviation 71 (2006).

25.) A. Kost, Responsibility and Liability for Air Navigation Services 22 (Master Thesis at Leiden University) (2004).

26.) Ibid

27.) See Supra note 9 at 184.

28.) Aviation Safety Network website, http://aviation-safety.net/database/record.php?id=19550727-0, last visited (18-11-2011).

29.) Time/CNN, The Worst, but Not the First, 12 September 1983.

30.) Aviation Safety Network website, last visited (12-11-2011) http://aviation-safety.net/database/record.php?id=19780420-1

31.) Aviation Safety Network website, last visited (16-11-2011) http://aviation-safety.net/database/record.php?id=19830901-0

32.) D Evans, Vincennes: A Case study http://web.archive.org/web/20060527221409/http://dolphin.upenn.edu/~nrotc/ns302/20note.html, last visited (15-11-2011)

33.) Aviation Safety Network website, last visited ( 15-12-2011) http://aviation-safety.net/database/record.php?id=19930923-1

34.) Private air law reader, Leiden University 2011-2012. Course leader Prof Mendes de Leon at 91.

35.) Aviation Safety Network http://aviation-safety.net/database/record.php?id=20050814-0, last visited (17-11-2011)

36.) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, signed at London, Moscow and Washington on 27 January 1967. UN Doc 610 UNTS 205 / 6 ILM 386 (1967) / [1967] ATS 24.

37.) P. Haanappel, The Law and Policy of Outer Space – A Comparative Approach, 8-23 (2003).

38.) See Supra note 9 at 185.

39.) Ibid.

40.) M. Franklin & S. Potter, Sovereignty over Airspace and the Chicago Convention: Northern Cyprus, 35 (1) Air and Space Law 63-70 (2010).

41.) [2009] All ER (D) 295 (Jul). [2009] EWHR 1918 (Admin)

42.) G. O’Reilly, Gibraltar: Sovereignty Disputes and Territorial Waters http://80.33.141.76/ET2050_library/docs/med/gibraltar.pdf ,last visited (19-11-2011)

43.) Ibid.

44.) Ibid.

45.) Defence News – A Gannet Company website, last visited (18-12-2011) http://www.defensenews.com/story.php?i=4692874

46.) Ibid

47.) Gibraltar Viewpoint Blogspot website, last visited (19-12-2011) http://gibraltarviewpoint.blogspot.com/2011/04/britain-will-defend-its-sovereignty-and.html

48.) See supra 15 at 150-155.

49.) Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929.

50.) Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Montreal on 28 May 1999, ICAO Doc 9740.

51.) Protocol Consolidating the Eurocontrol International Convention Relating to Co-operation for the Safety of Air Navigation of 13 December 1960, as variously amended, signed at Brussels on 23 June 1997.

52.) See supra note 15 at at 271.

53.) Ibid.

54.) Article 3(d) of the Chicago Convention 1944 provides that when States enact rules for the operation of State aircrafts, they must have due regard for the safety of the navigation of civil aircraft.

55.) M. Bisset presentation, The EU Emission Trading Scheme, Aircraft financing seminar, Leiden University, 24-25 November 2011.

56.) Ibid.

57.) Transport & Environment website, Advocate’s opinion emphatically rejects airlines’ ETS complaints http://www.transportenvironment.org/News/2011/10/Advocates-opinion-emphatically-rejects-airlines-ETS-complaints/, last visited (17-11-2011)

58.) Ibid.

59.) The UK Telegraph website, http://www.telegraph.co.uk/news/worldnews/europe/iceland/8528915/Iceland-shuts-airspace-after-volcanic-eruption.html , last visited (19-12-2011).

60.) The Sydney Morning Herald, Qantas cancels flights for a third day, http://www.smh.com.au/travel/travel-news/qantas-cancels-flights-until-tuesday-afternoon-20100418-slv5.html 18 April 2010.

61.) Flight Global website, Pictures: Finnish F-18 engine check reveals effects of volcanic dust, http://www.flightglobal.com/news/articles/pictures-finnish-f-18-engine-check-reveals-effects-of-volcanic-340727/ 16 April 2010.

62.) Money control website – India’s no1 Financial Portal http://www.moneycontrol.com/news-topic/-airspace/video-september-11th-airspace-shutdown-(animation)_ttUkvGnKM2s.html , last visited (19-11-2011)

63.) Eurocontrol website http://www.eurocontrol.int/articles/about-muac , last visited (17-12-2011).

64.) Ibid.

65.) Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators.

66.) Commission Regulation (EU) No 285/2010 of 6 April 2010 amending Regulation (EC) No 785/2004 of the European Parliament and of the Council on insurance requirements for air carriers and aircraft operators.

67.) Europa website http://europa.eu/legislation_summaries/internal_market/single_market_services/financial_services_insurance/l24300_en.htm, last visited (15-11-2011).

68.) European Commission Mobility and Transport Department website http://ec.europa.eu/transport/air-ban/list_en.htm, last visited (16-11-2011).

69.) European Commission Press Release of 21 November 2001, Aviation: Commission updates the EU list of air carriers subject to an operating ban, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1375&format=HTML&aged=0&language=en last visited (17-11-2011)

70.) Ibid.