Abstract | The article focuses on the definition of the airspace within the meaning of the International airspace law, its historical context and conditions of sanctions imposed on states in a sense of closing airspace before them. This paper brings a closer look on the evolution of the international legal sources of the airspace law, aspects of adopting both The Paris Treaty and The Chicago Treaty. Following lines also deals with the question of the sovereignty of a state above the airspace within its reach and a historical doctrinal view on this topic and a comparison with so-called "international airspace" and its legal regime. After the theoretical questions the article focuses on the consequences of the airspace closures imposed by the European Union and other states world-wide as a response to the Russian operations on Ukraine since February 2022 and having serious, not only economical, impact to this day. The view on the resolution of disputes between states in matters of imposed sanctions, including airspace closure, is brought by the case law of the ICJ, concerning Bahrain, Egypt, Saudi Arabia and The United Arab Emirates v. Qatar. Such selected case law opens the question of the jurisdiction of ICAO´s Council in given matter based on the Article 84 of the Chicago Convention.
1. International Law and Definition of Airspace
1.01. The need for legally binding rules regulating the law of airspace at the international level arose in connection with technical developments in aviation, pursuing military goals with the use of aircraft, i.e. in the second half of the 19th century. But such technical developments in aviation experienced rapid growth as early as during World War I. The devastating impacts of World War I led directly to the adoption of the Paris Convention Relating to the Regulation of Aerial Navigation at the Paris Peace Conference in 1919 (the "Paris Convention">sup>1).2
1.02. The cornerstone of this international regulation was primarily the technical progress in aviation.3 The legal regulation of airspace relies on the principle of exclusive territorial sovereignty, which is already incorporated in the Paris Convention. Consequently, it is useful to define State sovereignty in general terms from the perspective of public international law before we proceed to the definition of generally binding principles of exclusive territorial sovereignty in international aviation law. The definition of sovereignty is primarily subject to the doctrinal interpretations presented by legal academics. The very existence of a State provides a certain guideline. The Montevideo Convention of 1933 stipulates certain requirements that the State must meet in order to qualify as a State; these requirements are generally recognised today. Article 1 of the Montevideo Convention stipulates that a State, as a person of international law, should possess the following qualifications: "(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states." A State can only be recognised in the international community if it meets the above criteria. The recognition of the State by other States (subjects of public international law) is inseparably connected to the recognition of the State as a sovereign State. If States recognise the existence of another State, they de facto recognise its sovereignty. Such mutual recognition is a conditio sine qua non for the establishment of diplomatic relations.4 State sovereignty can be defined, for instance, as the "Independence of State power on any other power. The State is externally and internally limited only by the sovereignty of other States, by general international law and by freely assumed international commitments."5 "Any other power" shall be interpreted extensively and shall encompass any other internal power, originating from inside the State, and external power, meaning that the State sovereignty of a State ends where the sovereignty of another State begins. This idea has been summarised, with a certain degree of exaggeration, by John Locke in his Second Treatise of Government, albeit in a different context and in relation to the philosophical aspects of the freedom of individuals: "Your liberty to swing your fists ends where my nose begins".
1.03. Exclusive state sovereignty over airspace had been considered an international custom until the adoption of the Paris Convention.6 The Paris Convention Relating to the Regulation of Aerial Navigation is the historically first binding multilateral treaty that contains material rules of air law, including airspace.7 Article 1 of the Paris Convention stipulates (cit.):
"The High Contracting Parties recognise that every Power has complete and exclusive sovereignty over the air space above its territory. For the purpose of the present Convention, the territory of a State shall be understood as including the national territory, both that of the mother country and of the colonies, and the territorial waters adjacent thereto."
1.04. The innocent passage of civil aircraft over the territory of signatory States of the Paris Convention was allowed in times of peace. In this regard, Article 2 of the Paris Convention stipulates (cit.):
"Each contracting State undertakes in time of peace to accord freedom of innocent passage above its territory to the aircraft of the other contracting States, provided that the conditions laid down in the present Convention are observed. Regulations made by a contracting State as to the admission over its territory of the aircraft of the other contracting States shall be applied without distinction of nationality."
1.05. With due regard for the existence of exclusive territorial sovereignty of airspace over the territory of the contracting States to the Paris Convention, these States were allowed to prohibit the aircraft of the other signatory States to the Paris Convention from "... flying over certain areas of its territory..." for reasons enumerated exhaustively in Article 3. Such areas are referred to as zones interdites. In this regard, the said provision, i.e. Article 3 of the Paris Convention, stipulates (cit.):
"Each contracting State is entitled for military reasons or in the interest of public safety to prohibit the aircraft of the other contracting States, under the penalties provided by its legislation and subject to no distinction being made in this respect between its private aircraft and those of the other contracting States from flying over certain areas of its territory. In that case the locality and the extent of the prohibited areas shall be published and notified beforehand to the other contracting States."
1.06. The provisions of the Paris Convention only apply to aircraft that possess the nationality of the State in the register of which they are entered. No aircraft shall be entered in the register of one of the contracting States to the Paris Convention unless it belongs wholly to nationals of such State. An aircraft cannot be validly registered in more than one State. The Paris Convention did not allow an aircraft that is not entered in the register of a contracting
State to fly above the territory of a contracting State, except in special and temporary cases. Article 5 of the Paris Convention stipulates (cit.): "No contracting State shall, except by a special and temporary authorisation, permit the flight above its territory of an aircraft which does not possess the nationality of a contracting State."
1.07. An aircraft of a contracting State to the Paris Convention was allowed to fly above the territory (to cross the airspace) of other contracting States without landing. The State in whose airspace the aircraft from another contracting State was flying could fix the route of the flight or order the aircraft to land, as applicable. Aircraft of a contracting State had the right to land at a foreign airport if in distress.8 The rules regulating the use of airspace by civil aircraft between the contracting States did not apply to commercial airways. Such flights required a special bilateral agreement between the States on the establishment of such a commercial airline connection. Article 15 of the Paris Convention stipulates (cit.):
"Every aircraft of a contracting State has the right to cross the air space of another State without landing. In this case it shall follow the route fixed by the State over which the flight takes place. However, for reasons of general security, it will be obliged to land if ordered to do so by means of the signals provided in Annex D. Every aircraft which passes from one State into another shall, if the regulations of the latter State require it, land in one of the aerodromes fixed by the latter. Notification of these aerodromes shall be given by the contracting States to the International Commission for Air Navigation and by it transmitted to all the contracting States. The establishment of international airways shall be subject to the consent of the States flown over."
1.08. The carriage by aircraft of explosives and of arms and munitions of war was forbidden among the contracting States to the Paris Convention.9 Articles 16, 27 and 28 of the Paris Convention even provided for the possibility of imposing restrictions on selected flights of the contracting States. Such restrictions could only be imposed on flights between the contracting States and exclusively subject to the conditions stipulated in the Paris Convention. The imposition of the restrictions had to be reported to the International Commission for Air Navigation as an authority set up by the Paris Convention.
1.09. Article 16 of the Paris Convention (cit.):
"Each contracting State shall have the right to establish reservations and restrictions in favour of its national aircraft in connection with the carriage of persons and goods for hire between two points on its territory. Such reservations and restrictions shall be immediately published, and shall be communicated to the International Commission for Air Navigation, which shall notify them to the other contracting States."
1.10. Article 27 of the Paris Convention (cit.):
"Each State may, in aerial navigation, prohibit or regulate the carriage or use of photographic apparatus. Any such regulations shall be at once notified to the International Commission for Air Navigation, which shall communicate this information to the other contracting States."
1.11. Article 28 of the Paris Convention (cit.):
"As a measure of public safety, the carriage of objects other than those mentioned in Articles 26 and 27 may be subjected to restrictions by any contracting State. Any such regulations shall be at once notified to the International Commission for Air Navigation, which shall communicate this information to the other contracting States."
1.12. It needs to be mentioned that all restrictions imposed on the basis of Article 28 shall be applied equally to national and foreign aircraft.10
1.13. The airspace regime was different for private aircraft, on the one hand, and State aircraft, on the other. State aircraft were defined as military aircraft and aircraft exclusively employed in State service. Hence, the subject matter of the Paris Convention is limited to civil aviation or, as applicable, civil flights other than commercial airline connections, while the last-mentioned could be the subject of bilateral agreements, if any.
1.14. Present regulation of aviation is based on the principles of the Paris Convention and incorporated in the Chicago Convention on International Civil Aviation of 1944 (the "Chicago Convention"11), which again fails to unify the regime for commercial airways. This is the reason why two additional agreements were adopted at the International Civil Aviation Conference: the International Air Transport Agreement and the International Air Services Transit Agreement. Despite the adoption of the above-mentioned agreements, (cit.): "... issues concerning the commercial aspects themselves of regular air lines..." remained to be regulated by bilateral agreements.12 In this connection, it is appropriate to mention that, for example, a bilateral agreement (Bermuda Agreement) was adopted in 1946 between the United States and the United Kingdom, which inspired subsequent bilateral agreements concluded by the United States, establishing commercial airlines.
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Footnotes
1 The following instances in which the author quotes the Paris Convention are based on the wording of the Paris Convention No. 35/1924 Coll., Relating to the Regulation of Aerial Navigation, of 13 October 1919, as adopted by the Czechoslovak Republic.
2 VAUGHAN LOWE, INTERNATIONAL LAW, New York: Clarendon Law Series, Oxford University Press (2007), ISBN 978-0-19-926884-9, at 151.
3 Available at: https://applications.icao.int/postalhistory/1919_the_paris_convention.htm (accessed on 16 April 2024).
4 Available at: https://www.iir.cz/o-statnosti-a-uznani-statu-v-mezinarodnim-pravu (accessed on 16 April 2024).
5 Available at: https://www.mvcr.cz/clanek/statni-svrchovanost.aspx (accessed on 16 April 2024).
6 REBECCA M. M. WALLACE, INTERNATIONAL LAW, 3rd ed., London: International Law, Sweet & Maxwell (1997), ISBN 0-421-53570-9, at 104.
7 ČESTMÍR ČEPELKA, PAVEL `TURMA, MEZINÁRODNÍ PRÁVO VEŘEJNÉ [Title in translation: INTERNATIONAL PUBLIC LAW], 2nd ed., Praha: C. H. Beck, (2018), ISBN 978-80-7400-721-7, at 188, paragraph 88.
8 Article 22 of Convention No. 35/1924 Coll., Relating to the Regulation of Aerial Navigation.
9 Article 26 of Convention No. 35/1924 Coll., Relating to the Regulation of Aerial Navigation.
10 Article 28 and Article 29 of Convention No. 35/1924 Coll., Relating to the Regulation of Aerial Navigation.
11 Similarly to the quotations relating to the Paris Convention, all of the author's quotes refer to the Chicago Convention No. 147/1947 Coll., on International Civil Aviation, of 7 December 1944.
12 ČESTMÍR ČEPELKA, PAVEL `TURMA, MEZINÁRODNÍ PRÁVO VEŘEJNÉ [Title in translation: INTERNATIONAL PUBLIC LAW], 2nd ed., Praha: C. H. Beck, (2018), ISBN 978-80-7400-721-7, at 190, 191.
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