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under this Convention. Over the high seas, the rules in force shall be State having the primary responsibility. A representative
those established under this Convention. Each contracting State under- of the United States air carriers sits in during the negotia-
takes to insure the prosecution of all persons violating the regulations tions as an observer. 142
applicable.
4-12. Jurisdiction Over Foreign Aircraft and Space
d. The International Civil Aviation Organization. The Vehicles. a. Sovereign0 Over Airspace.
Convention on International Civil Aviation created the CONVENTION ON INTERNATIONAL CIVIL AVIATION
International Civil Aviation Organization U.C.A.O.), an Signed at Chicago, December 7, 1944
intergovernmental organization, the objectives of which 61 Stat. 1180, T.I.A.S. 1591, 15 U.N.T.S. 295
are to "develop the principles and techniques of interna- Art. 1.The contracting States recognize that every State has complete
tional air navigation and to foster the planning and and exclusive sovereignty over the airspace above its territory.
development of international air transport." The conven- Art. 2. For the purposes of this Convention the temtory of a State
tion entered into force for the United States on April 4, shall be deemed to be the land areas and territorial waters adjacent
1947. As of January 1, 1975, 119 states were parties to thereto under the sovereignty, suzerainty, protection, or mandate of
such State.
the convention, including the United States and the Art. 5. Each contracting State agrees that all aircraft of the other con-
USSR. In 1945 the United States became a party to the tracting States, being aircraft not engaged in scheduled intemational air
International Air Services Transit Agreement. 141 Article services shall have the right, subject to the observance of the terms of
1, section 1, provides the so-called "two freedoms" for this Convention, to make flights into or in transit nonstop across its ter-
scheduled air services: ritory and to make stops for non-traffic purposes without the necessity
of obtaining prior permission, and subject to the right of the State flown
Each contracting State grants to the other contracting States the over to require landing. Each contracting State nevertheless reserves the
following freedoms of the air in respect of scheduled intemational air right, for reasons of safety of flight, to require aircraft desiring to
services: proceed over regions which are inaccessible or without adequate air
(1) The privilege to fly across its temtory without landing; navigation facilities to follow prescribed routes, or to obtain special per-
(2) The privilege to land for nontraffic purposes. mission for such flights.
The privileges of this section shall not be applicable with respect to air- Such aircraft, if engaged in the carriage of passengers, cargo, or mail
ports utilized for military purposes to the exclusion of any scheduled in- for remuneration or hue on other than scheduled intemational air ser-
ternational air services. In areas of active hostilities or of military occupa- vices, shall also, subject to the provisions of Article 7, have the privilege
tion, and in time of war along the supply routes leading to such areas, of taking on or discharging passengers, cargo, or mail, subject to the
the exercise of such privileges shall be subject to the approval of the right of any State where such embarkation or discharges takes place to
competent military authorities. impose such regulations, conditions, or limitations as it may consider
desirable.
As of January 1, 1975, 86 states were parties to the Tran-
Art. 6. No scheduled international air service may be operated over or
sit Agreement. into the territory of a contracting State, except with the special permis-
(1) There is no widely accepted multilateral treaty sion or other authorization of that State, and in accordance with the
which provides for the granting of trafKc rights to foreign terms of such permission or authorization.
airlines. Consequently, the operation of international (1) The Convention goes on to provide a legal
scheduled airlines depends on the consent of the states to framework regulating flights of civil aircraft (excluding
or through the territory of which they fly. state aircraft. which include aircraft used in military,
(2) The possession of these privileges by a foreign customs, and police services). Under Article 3, state
airline depends either on a unilateral grant by a state, or aircraft are not permitted to fly over or land in the territory
on a bilateral agreement between the state of the airline of a state without authorization by special agreement or
and the other state. Since World War 11, close to a thou- otherwise.
sand bilateral agreements concerning these privileges have (2) The question is often raised as to whether aircraft
been made between the states of the world. Before World enjoy a right of "innocent passage" through the air space
War 11, the United States government generally permitted of a foreign state in the absence of the latter's express
its airlines to obtain operating rights abroad through their agreement. 143 The International Air Services Transit
own arrangements with the foreign governments con- Agreement 144 grants limited transit and landing rights to
cerned. In that period, few governments outside North scheduled aircraft. As a matter of practice, no state con-
America desired reciprocal rights in the United States for cedes or claims a right of innocent passage for aircraft in
their airlines. During the war, however, the policy of the the air space of another state, absent international agree-
United States was changed in favor of operating rights ment. Statements made by delegates to the Geneva Con-
abroad being obtained by inter-governmental agree- ference on the Law of the Sea (1958) indicate a
ments, whenever feasible, and the United States has widespread conviction that aircraft enjoy no right of inno-
bilateral air transport agreements with some ffty nations.
Such agreements are concluded as "executive agree- cent passage, such comparable privileges as exist being
ments" rather than "treaties," and are negotiated by
142. Lissitzyn, Bila~eral Agreements on Air Transport, 30 J. Air L.
teams composed of officials of the Department of State & Corn. 248 (1 964). See also chap. 8, infra.
and Civil Aeronautics Board, with the Department of 143. On the tight of innocent passage of vessels through a foreign
state's territorial waters, see pages 4-31 thru 4-33, iqfra.
141. 49 Stat. 1693; 84 U.N.T.S. 389. 144. Dec. 7, 1944, 59 Stat. 1693, 84 U.N.T.S. 389, E.A.S. 487.