Pilot Counsel

International air law - A historical perspective

August 1, 2006

John S. Yodice is legal counsel for the International Council of Aircraft Owner and Pilot Associations.

I write this as I prepare for the World Assembly of the International Council of Aircraft Owner and Pilot Associations (IAOPA), held in Toronto, Canada, in June 2006. (AOPA-U.S. is the largest member of this international federation of associations. Our hosting neighbor to the north, the Canadian Owners and Pilots Association, is the second largest; there are 62 other national member associations.) I am reminded that we aircraft owners and pilots take for granted our ability to fly our aircraft to other countries with a relative minimum of hassles. How this came about is interesting legal history.

From its earliest beginnings, even in folklore, aviation has been an international activity. Greek mythology tells us of Daedalus, who, with his son Icarus, fashioned wings of wax and feathers and flew from Crete to Sicily to escape the labyrinth of Minos, the Cretan king. Unfortunately, the overambitious Icarus flew so near the sun that the wax melted, and he plunged into the sea to his death. Daedalus apparently completed his international voyage successfully. The world did not appear to have been too concerned about the international law aspects of this mythological voyage.

But this apathy slowly began to change as airborne vehicles became more of a threat to national security. A report of one of the earliest war uses of aviation is in an early edition of the Encyclopaedia Britannica: "Balloons were...employed by the French during this campaign [Holland, 1794], to procure knowledge of the position of the enemy. An engineer ascended in the balloon (which was suffered to rise to a great height, but prevented from being carried away by a long line), made plans of the enemy's encampment, and during an attack sent down notice of every hostile movement."

No attempts were made to solve this problem by international law until the turn of the nineteenth century. Then, in the proceedings of the Hague Tribunal in 1899, the representatives of the nations attending the International Peace Conference declared that they would prohibit the launching of projectiles and explosives from balloons, or by new methods of a similar nature, for a term of five years. At the Second Hague Peace Conference, in 1907, the attending nations declared that they would prohibit the discharge of projectiles and explosives from balloons, or by other new methods of a similar nature, for a period extending to the close of the third peace conference. Thus the international control of aerial navigation was begun, but only from a military standpoint.

Remember, it wasn't until 1903 that the Wright brothers made the first powered flight. So, even before that, the military application of aviation was well established and was well on its way toward shaping the development of international air law. The peaceful use of air transportation, as a significant consideration, was way behind.

This military application was to have a profound influence upon the legal status of airspace. At this time there were two theories on the legal status of airspace for international air navigation. One argued for freedom of airspace much like freedom of the seas, whereby the countries underlying the airspace exercised no sovereignty in the airspace and flight was free. The other argued that the airspace above national territories was not free, but subject to the sovereignty of the underlying country.

The debate over which theory should prevail was still raging in 1909 when Louis Blériot flew from France across the English Channel to Great Britain in his monoplane. Two years later the airplane dropped its first bomb, fired its first volley from a mounted weapon, and successfully conducted the first airplane reconnaissance in time of war. These events seemed to cap off the debate. The governments of the world were now thinking in terms of jurisdiction in the airspace above them.

The coup de grâce to the freedom of airspace theory seemed to come during World War I. In 1914, the Netherlands, a neutral country in the war, sent a diplomatic note to the government of Germany protesting the flight of two German zeppelins over its kingdom. The overflights were unintentional — even then, weather and poor visibility wreaked havoc with flight plans. The Dutch complained to Germany that flying over Dutch territory without Dutch consent was incompatible with respect for its national sovereignty. In 1916, a German zeppelin again drifted into the airspace over Dutch territory. Without warning, the Dutch shot at it. By this direct and affirmative action, the government of the Netherlands had become the outstanding advocate for national air sovereignty.

Every international aviation convention thereafter recognized the complete and exclusive sovereignty of each nation in the airspace above its territory. And as nations began to enact aviation laws, they began to assert this sovereignty. For example, in 1926 the United States enacted the Air Commerce Act, our first federal aviation statute, which declared "complete sovereignty of the airspace over the lands and waters of the United States, including the Canal Zone."

And this theory has persisted to the present day and is embodied in the Convention on International Civil Aviation, more commonly known as the Chicago Convention. This convention sets out the international law under which we derive our rights and privileges in international flights, at least insofar as the flight involves nations that adhere to the convention. These nations comprise virtually all of the nations of the world.

Article 1 of the convention states: "The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory." The convention then goes on to grant the right of international flight in Article 5 by stating: "Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services, shall have the right, subject to the observance of the terms of this convention, to make flights into or in transit nonstop across its territory and to make stops for nontraffic purposes without the necessity of obtaining prior permission, and subject to the right of the 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 permission for such flights."

Your hangar-flying lawyers may have already thought of some interesting questions raised by the principle of law of Article 1. Since there is freedom of the seas, what about the airspace over the high seas? The question is fairly well settled. It is accepted as a principle of international law that the high-seas airspace may be used by every nation to fly over the high seas and that none of this airspace may be subjected to the exclusive and complete sovereignty of any nation. But if this is so, where does the United States get its authority to control the Air Defense Identification Zones, which are over the high seas (except for the Washington ADIZ)? If you don't think the United States exercises jurisdiction in this airspace, just try to fly in it without letting the authorities know.

Another interesting question relates to the use of outer space. It is the rule of customary international law that outer space is free for exploration and use by all nations and not subject to national appropriation by claim of sovereignty. But how high up does the airspace end and outer space begin? The launching of the satellites in the late 1950s and the U-2 incident of May 1960 very dramatically raised the issue of the vertical extent of national airspace. For we private pilots who are mostly confined to what are clearly the lower reaches of "airspace," these issues are more theoretical than real.

With the legal issue of sovereignty in airspace settled, the world turned its attention to how countries should regulate their respective airspaces to accommodate civil air transportation and air commerce, principally the airlines and also including general aviation. This effort, as we have seen above, is embodied in the Chicago Convention, and is the one that by worldwide agreement accords to civil aircraft owners and pilots the right to fly into and over foreign countries. Military flying is not covered by the convention and, as this history suggests, is much more strictly regulated. Airline flying is covered by the convention but also is subject to separate agreements among countries as to the commercial aspects. Of course, our concern is with the private flying aspects, which are fully covered by the convention as implemented by the international standards and recommended practices of the International Civil Aviation Organization (ICAO). More about this in future columns.

John S. Yodice