International Air Law

In one line

Every State has complete and exclusive sovereignty over the airspace above its territory, so no scheduled international air service may operate into or over a State without its permission, and the Chicago Convention of 1944 builds the technical and institutional system on that foundation.

The Convention

Signed at Chicago on 7 December 1944, and it came into force on 4 April 1947, on the thirtieth day after the deposit of the twenty-sixth instrument of ratification or notification of adherence, in accordance with article 91(b).

The Preamble records that the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, while its abuse can become a threat to the general security; that it is desirable to avoid friction and to promote that cooperation between nations and peoples upon which the peace of the world depends; and that the signatory Governments have agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically.

Sovereignty: articles 1 to 4

Article 1. The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.

Three words carry the article. Recognize, not confer, so the Convention treats the rule as pre-existing customary law and not as its own creation. Complete, so it is not qualified by any general right of passage. And exclusive, so no other State shares it.

Contrast the sea. Under [Innocent Passage, and Straits] a foreign ship has a right of innocent passage through the territorial sea. There is no right of innocent passage in airspace, and article 1 is why. Even over the territorial sea, where ships may pass as of right, aircraft may not.

Article 2, territory. For the purposes of the Convention, the territory of a State is the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.

So the airspace above the territorial sea is sovereign airspace, and the airspace above the exclusive economic zone and the high seas is not, since neither is territory. That is why the freedom of overflight appears in [The Exclusive Economic Zone] and [The High Seas].

Article 3, civil and state aircraft.

(a) The Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft.

(b) Aircraft used in military, customs and police services shall be deemed to be state aircraft.