Anthony Aust. Handbook of International Law

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6. I71 UNTS 387 (No. 502); UKTS (1953) 8.

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(the International Air Transport Association), which is an association of airlines, and which

itself must not be confused with the ICAO.) Under IASTA, the 121 parties grant to each

others’ airlines operating scheduled international services the ‘First and Second Freedoms’ of

the air: the right to fly across their respective territories without landing, and to land there for

‘non-traffic purposes’, such as refuelling or repairs (known also as ‘technical stops’), but not to

set down or take on board passengers or cargo. Although these provisions are habitually

repeated in bilateral air services agreements, IASTA can be valuable when there is no such

agreement.

By a bilateral air services agreement under which traffic rights are granted (see below).2.

Ad hoc.3.

International air services, scheduled and non-scheduled

It is important to distinguish between ‘scheduled’ and ‘non-scheduled’ international air services,

since they are governed by different rules. Scheduled services are commercial services open to the

public and operating to a published timetable (schedule). Non-scheduled services are all the rest,

predominantly charter flights. Both types of services can carry passengers and/or freight, including

mail. Although Article 5 provides a more liberal regime for charter flights, because of the enormous

growth in them, especially for tourism, for many years states have in practice required prior

permission for them.

Domestic air services

Article 7 reserves to each state the right to operate air services within its territory (including between

it and any of its overseas territories). This is known as ‘cabotage’. A state can also grant cabotage

rights to foreign airlines, usually only in return for similar or other valuable rights.

International airspace

The airspace that is not above a state’s territory, including its territorial sea, is open to the aircraft of

all states. Nevertheless, for reasons of safety, Article 12 and the annexes have detailed provisions to

promote safety in international airspace. For this purpose, international airspace is divided into flight

information regions (FIRs) for which a state is responsible and

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with whose aeronautical authorities all foreign civil aircraft are required to co-operate. However, on

occasion a state will purport to close part of international airspace adjacent to its territory. The legal

justification may be self-defence,

as was the case with the 200-mile Total Exclusion Zone around

the Falkland Islands declared by the United Kingdom during the 1982 conflict with Argentina for the

purpose of protecting British armed forces. States also declare safety zones when carrying out

practice firings or naval exercises outside the territorial sea, and issue general warnings to shipping

and aircraft not to enter when the activity is being carried out. If anything, international law requires

such warnings,

and, provided they are not too extensive or prolonged, they are in most cases

complied with without complaint.

For many years, the United States and Canada have had air

defence identification zones (ADIZ and CADIZ respectively) and require all aircraft when entering

them and intending to land in their territory to identify themselves and conform to the directions of

ground control, even when over the high seas (the zones reach half way across both the Atlantic and

Pacific Oceans). This requirement is loosely based on Article 11 and is apparently acquiesced in by

other states.

Civil aircraft and airlines

An aircraft has the nationality of the state where it is registered. Registration can be changed, but

dual registration is not allowed (Articles 17 and 18). Although the Convention does not require any

connection between the state of registration and the owners of the aircraft, domestic law usually

does. An international air service therefore usually operates on the basis of the ‘nationality’ of each

airline, not on the nationality of the aircraft. With the exception of the liberalised regime within the

European Union, a state will usually grant rights to another state only in respect of airlines over

which nationals of that state have ‘substantial ownership or control’, the criterion normally found in

air services agreements. The Report of the ICAO World Wide Air Traffic Conference, held in

Montreal in March 2003 with the theme ‘Challenges and Opportunities of Liberalisation’,

recommended that states should consider using a model designation clause under which the state

receiving a designation would issue an operating permit provided that, inter alia, the designated

airline has its principal place of business in the territory of the designating

7. See p. 226 above.

8. See the Corfu Channel, ICJ Reports (1949), p. 4, at p. 22; 16 ILR 155.

9. See also p. 314 above.

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state and that state has and maintains effective regulatory control over the airline.

It is common practice for airlines to charter (lease) foreign-registered aircraft. A so-called wet-

lease is of the aircraft and crew; a dry-lease is of the aircraft only.

Air services agreements

Because an airline needs prior permission to put down or take on board passengers or cargo in

another state and, unless IASTA applies, even to overfly or make a technical stop, there has

developed an extensive network of bilateral treaties known as air services agreements (ASAs).

Under them the airlines of the parties are granted rights to operate scheduled services (charter

services are usually not included) between, and sometimes beyond, the territory of the two states.

They may have separate provision for scheduled freight services, although freight carried in the hold

of a passenger aircraft (‘bellyhold cargo’) is not usually subject to special provisions. Although

today many airlines are no longer state-owned, it is the governments which negotiate ASAs. But,

since it is very much a commercial negotiation, in effect the governments act for their respective

airlines.

Although each ASA is unique, most follow the basic formula set by the UK–US ASA of 1946,

now known as ‘Bermuda 1’.

Among other things, a typical ASA

provides for IASTA rights

(‘First and Second Freedoms’); permits airlines of each party to operate services (the ‘agreed

services’) on a route or routes between the two states and to pick up and set down traffic (‘Third and

Fourth Freedoms’), and often to pick up and set down traffic to and from third states on a route, or at

‘points beyond’ the end of a route (although exercise of such ‘Fifth Freedom’ rights will also require

the consent of the third state); designation of the airlines to operate the agreed services, provided the

designating party or its nationals have ‘substantial ownership and effective control’ of them; ‘fair

and equal opportunity’ for the designated airlines to compete; the capacity that can be operated (size

10. ICAO Doc. 9819 at Conf/5 (31/3/03, rev. 10/7/03), pp. 16–23, or see the ICAO website,

www.icao.int.

11. See A. Aust, ‘Air Services Agreements: Current United Kingdom Procedures and Policy’ (1985) Air

Law 189–202, which is still largely relevant.

12. 3 UNTS 253 (No. 36); UKTS (1946) 3. It was replaced on 23 July 1977 by ‘Bermuda 2’ (1079 UNTS

21 (No. 16509); UKTS (1977) 76) which has been amended several times and has caused numerous

disputes. A liberal replacement has been under negotiation for many years.

13. See the Grenada–UK ASA 2002, UKTS (2002) 52.

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and type of aircraft and frequency of flights); a mechanism for approval of tariffs (fares); exemption

from customs and other duties and taxes on fuel and certain equipment introduced by the airlines

into the other state; freedom to convert and remit each airline’s net earnings to its home state;

the

right to bring in airline staff and establish sales offices; and an arbitration procedure. Disputes arise

frequently under ASAs and some have gone to arbitration.

It is usual to provide for termination of

an ASA on twelve months’ notice.

Most ASAs – except those with the United States – are supplemented by MOUs.

Typically the

MOUs specify the names of the airlines that can be designated; elaborate on the route rights and

capacity; and may go into more detail about tariffs. Since MOUs contain commercially sensitive

information, they are generally regarded by the two states as confidential to them and those of their

airlines involved in the services. Given the great changes in international air services in recent

decades, the MOUs often have to be modified or replaced, and are sometimes renegotiated annually

or seasonally.

In addition to the liberalised regime for air services within the European Union under which EU

airlines can carry traffic anywhere within the Union, including (since 1997) cabotage within another

EU state, since 1992 the United States has concluded over sixty liberal (so-called Open Skies)

ASAs.

But, after eight years, such a treaty between the European Union (that shares competence

for air services with its member states) and the United States appears to be as far away as ever.

particular obstacle is the European Union’s reasonable demand that EU airlines should enjoy

cabotage rights within the United States to match US airlines’ valuable Fifth Freedom rights within

the European Union, which if the European Union ever became a federal state would amount to

cabotage.

Warsaw and Rome Conventions

Passengers’ luggage gets damaged or lost, and aircraft crash. The purpose of the Warsaw

Convention for the Unification of Certain Rules relating to Carriage by Air 1929

was to create one

liability regime, the key elements

14. Reciprocal exemption from direct taxes is usually provided either in a double taxation convention or

in a specific exchange of notes.

15. See US v. France (1963), 38 ILR 182; US v. France (1978), 54 ILR 303; US v. Italy (1965), 45 ILR

393; US v. UK (1993), 102 ILR 215.

16. For an explanation of this shy but ubiquitous animal, see pp. 53-7 above.

17. See www.state.gov/e/eb/tra/c661.htm.

18. See www.eubusiness.com (not an EU website).

19. 137 LNTS 11; UKTS (1933) 11.

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being uniform documentation, liability without proof of negligence, limits on compensation (but

breakable if wilful misconduct is proved), and specified jurisdictions at the choice of the claimant. It

has no amendment clause.

Further treaties amending or supplementing the Convention were

concluded in 1955, 1961, 1971 and 1975. The parties to the original Convention and to each of the

further treaties all differ, resulting in a lack of uniformity in the scheme.

This was only partly

alleviated by airlines adopting special contracts offering higher compensation and the unilateral

imposition by the European Community (Regulation 2027/97, as amended by Regulation 889/2002),

and by the United States, of higher compensation limits for airlines operating to and from their

territory.

The Montreal Convention for the Unification of Certain Rules for International Carriage by Air

1999

is intended to replace the whole Warsaw regime. Under Article 17, compensation of up to

100,000 SDRs (about US$120,000) for death or injury resulting from an ‘accident’ while on the

aircraft or on embarkation or disembarkation, is payable without proof of negligence.

Above that

limit, the carrier is not liable if it can prove that the damage was not caused by its negligence or

wrongful act or omission, or was solely due to a third party. Compensation for loss or damage to

luggage is mostly limited to 1,000 SDRs (about US$1,200) for each passenger. The Convention

entered into force in 2003 and now has sixty-five parties, including the European Community, all

but one of its member states and the United States.

The Rome Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface

1952, as amended by a 1978 Protocol,

provides for the absolute liability of operators of foreign-

registered aircraft for damage caused by them to persons on the ground.

Jurisdiction over aircraft

Since a state has sovereignty over the airspace above its territory, aircraft on an international route

may pass through the airspace of several

20. See p. 98 above on the problem of amending treaties.

21. For more detail and references, see Aust, pp. 212–13.

22. See Shawcross and Beaumont, Air Law, London, 1977, or UKTS (2004) 44; and B. Cheng, ‘A New

Era in the Law of International Carriage by Air’ (2004) ICLQ 833–59.

23. Thus the problem of whether contracting deep vein thrombosis (DVT) from flying is an ‘accident’ for

this purpose may still be with us: see Deep Vein Thrombosis and Air Travel Group Litigation [2003] 3

WLR 956; [2003] 1 AER 935, and cases therein cited from other jurisdictions. But see also Tompkins,

‘DVT Litigation Update’ (2004) Air and Space Law 312 about the failure to give a DVT warning.

24. Both are in force, but the Convention has only forty-seven parties and the Protocol nine.

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foreign states as well as international airspace. The Tokyo Convention on Offences and Certain

other Acts Committed on Board Aircraft 1963 lays down jurisdictional rules for criminal offences

committed on board during flight, and for acts which jeopardise the safety of the aircraft or persons

or discipline on board.

It has 178 parties. The state of registration of the aircraft has the right to

exercise jurisdiction over such offences and acts (Article 3), although the jurisdiction of other states

is not excluded. If a serious assault were to take place, the state of nationality of the attacker or

victim, or a state where the aircraft lands, may, depending on its legislation, choose to exercise

jurisdiction (such options being important given the increase in ‘air rage’ incidents). But a state that

is not the state of registration must not for this purpose interfere with an aircraft in flight, except in

the cases set out in Article 4. But at the 33rd (2001) Session of the ICAO Assembly, Resolution

A33-4 encouraged prosecution by the state of first landing for offences on board foreign aircraft if

they disturbed public order.

(See p. 287 above on aviation terrorism.)

Use of force against aircraft

Article 3bis of the Chicago Convention

recognises the right of a state to require a civil aircraft to

land if it is overflying its territory without permission. But it also recognises that weapons must not

be used ‘against civil aircraft in flight and that, in case of interception, the lives of persons on board

and the safety of aircraft must not be endangered’. Since it is very difficult to force an uncooperative

pilot to land without putting the aircraft or its occupants in danger, in practice any landing would

have to be voluntary.

However, the prohibition on using force is expressed to be without prejudice

to the rights and obligations of states set out in the UN Charter. This is an oblique reference to the

inherent right of a state to use force in self-defence, as confirmed by Article 51 of the Charter.

Thus, in truly exceptional circumstances, a state would be entitled to shoot down a civil aircraft if

that is the only way to avoid an anticipated greater loss of

25. 704 UNTS 219 (No. 10106); UKTS (1969) 126.

26. See the ICAO website, www.icao.int. This had already been done by the United Kingdom: see the Civil

Aviation (Amendment) Act 1996, section 1.

27. ILM (1984) 705; UKTS (1999) 68. The Article is an amendment to the Convention prompted by the

shooting down by the Soviet Union of Korean Airlines flight KAL007 on 1 September 1983.

28. See Annex 2 to the Convention for the standard interception rules.

29. See p. 226 above.