Chapter 1

Nature of Air Space

Air space, also spelled Airspace, in international law, the space above a
particular national territory, treated as belonging to the government controlling the
territory. It does not include outer space, which, under the Outer Space Treaty of
1967, is declared to be free and not subject to national appropriation. The treaty,
however, did not define the altitude at which outer space begins and air space ends.
1.1 Historical Outline
In order to appreciate fully the current state aviation law, it is important to
have an outline knowledge of the historical development of the subject. The
development of aviation law has followed the development of flying, although
perhaps not always keeping pace with it, and aviation law shall be considered in three
periods:
Before the first World War
Before the two world wars
Since the Second World War
The earliest origins of public international aviation law are rooted in the period
following the end of World War I. Before and during the war, aircraft were largely
viewed as military weapons. In the aftermath of the war, lawyers, judges, and
politicians from all over the world recognized the profound impact that air travel
would have in challenging traditional notions of borders and “ownership” of airspace.
After World War I, the Paris Convention of 1919 was drafted. The Paris
Convention marked the first formal efforts at establishing a rule of law related to
 2

sovereignty over airspace, registration of aircraft, standards for pilots, and movement
of military aircraft.
During the Second World War, although international services were either
curtailed or restricted, many technical advances were made, among them the
development of the jet engine. Before the war ended delegates from 52 nations met in
Chicago to try to draw up international regulations controlling civil aviation. So that,
one of the most significant agreements in public international aviation law is the
Chicago Convention (1944). One of the most noteworthy achievements of the
Chicago Convention was the establishment of the International Civil Aviation
Organization, which continues to operate today. When the Chicago Convention came
into effect in 1947, it resulted in the termination of the Paris Convention of 1919 and
the Havana Convention of 1928.1Provisions of the Chicago Convention include:
(1) The rights of each state to establish restricted and prohibited areas as long as
the restrictions and prohibitions apply equally to domestic and international
aircraft.
(2) Establishment of responsibility for each contracting state to maintain radio and
air navigation services and facilities.
(3) The adoption of a standard system of communication procedures.2
1.2 Territory and Delimitation
Territory is both a political and legal term and concerns the relation between
sovereignty, land and people. Territory is, therefore, both spatial and locational in
referring to “the place surrounding an area”. the location of such an “area”, can indeed
be maritime, aerial or celestial as long as it is a space, place or sphere of physical
activities capable of being occupied by use of or for passage. It is interesting that
territory has in time, however, acquired a popular meaning of a “bounded space”. A
properly critical political theory of territory needs to investigate the quantification of
space and the role of calculative mechanisms in the commanding of territory, and the
establishment of borders.
Delimitation of territory or territorial spheres is indeed one of the
determinative characteristics of human societies. Even where territory is
indeterminate as to its precise extents it is still important that firm ideas as to the
juridical arrangement that governs the territory. Literarily hundreds of bilateral and
1
Raymond C. Speciale, Fundamental of Aviation Law, the McGraw-Hill Companies, Inc, 2006, p-
283.
2
Ibid.
 3

multilateral treaties and legal instruments govern the maritime, oceanic, Antarctic, air
and outer spaces.3
Article 2(2) of UNCLOS defines State has sovereignty extends to the air
space over the territorial sea as well as to its bed and subsoil. In Article 3, territorial
seas extend up to 12 nautical miles from its shores. Art. “The high seas are open to all
States” and includes freedom of overflight in Article 87. The Law of the Sea
Convention could serve as a model for defining legal rules in space. This Convention:
(1) defines Territorial Seas, where States enjoy sovereignty; (2) defines the Exclusive
Economic Zone, where States enjoy limited rights; and (3) defines the High Seas,
where no sovereignty exits, and is free for use by all. Similarly, a new treaty could do
the same to resolve the dilemma of what legal rules apply to flight. It could: (1) define
what constitutes Air Space, where sovereign rights exist; (2) define Near Space,
where limited rights of States exist; and (3) define Outer Space, where no sovereignty
exists and is free for use by all. Thus, legal rights in the Territorial Seas as described
in UNCLOS are analogous to those in Air Space of the Chicago Convention; legal
rights on the High Seas as described in UNCLOS are analogous to those which exist
in Outer Space pursuant to the Outer Space Treaty; and legal rights of the Contiguous
Zone and the Exclusive Economic Zone as described in UNCLOS are analogous to
those which could be created in a multilateral treaty describing the legal rights of
States in Near Space.
Zone between air space and outer space would cover emerging space activities
(commercial and military) that use altitudes from approximately 20km to 160km, the
so called “Near-Space.” Commercial and military interests have begun to develop
operating systems in Near-Space. Such systems include suborbital vehicles,
stratospheric balloons, pseudo-satellites and high-altitude drones. Some will operate a
few minutes, hours, weeks, months, or years. Some tourism sub-orbital flights may
reach 130 km in order to give its customers more zero-gravity time. Operations in
near-space are a potential threat for air traffic beneath and for the public on ground, in
the case of failures or malfunctions. They are also a threat for space outbound and
returning traffic.4 The following operational boundaries exist between aviation and
space:
3
Gbenga Oduntan, Sovereignty and Jurisdiction in the Airspace and Outer Space, Routledge Research
in International Law, 2012, p-14.
4
Thet Hetar Wai, Boundary between Airspace and Outer Space, Dagon University Commemoration of
25th Anniversary Silver Jubilee Research Journal Volume 9,No.1.
 4

• 160 Km, lowest practical operating orbit for satellites;

• 120 Km, re-entry threshold for space systems;
• 50 Km, upper limit of atmospheric buoyancy (balloons);
• 18 km, upper limit of civil aviation traffic.
Using the jurisdictional zones established by the Law of the Sea Convention as
a model, a new treaty, or an amendment to Art. 12 of the Chicago Convention could
establish:
 The Outer Space Zone, above 120km (or, alternatively, above 160km):
subject to Space Law.
 The Near Space Zone, between 50-120km (or, alternatively, 18-160km): like
a mix of the UNCLOS Contiguous Zone and Exclusive Economic Zone, open to
innocent passage by all, with aerial safety and navigation rules established
(presumably by ICAO), enforced by States in Flight Information Regions, and whose
aerospace and launch vehicles are subject to Air Law. It could also be restricted
against overflights by foreign State aircraft absent permission of the underlying State.
 The Air Space Zone, below 50km (or, alternatively, below 18km): subject to
the exclusive territorial sovereignty of the underlying State, as they are today.5
Vertically, airspace ends where outer space begins. It follows from the
principle of airspace sovereignty that every state is entitled to regulate the entry of
foreign aircraft into its territory and that persons within its territory are subject to its
laws.

5
Thet Hetar Wai, Boundary between Airspace and Outer Space, Dagon University Commemoration of
25th Anniversary Silver Jubilee Research Journal Volume 9,No.1.
 5

Chapter 2
Sovereignty of Territorial Airspace
The basic legal concept of State sovereignty in customary international law,
expressed in, inter alia, Article 2, paragraph 1, of the United Nations Charter, extends
to the internal waters and territorial sea of every State and to the air space above its
territory. As to superjacent air space, the 1944 Chicago Convention on International
Civil Aviation (Art.1) reproduces the established principle of the complete and
exclusive sovereignty of a State over the air space above its territory. That
convention, in conjunction with the 1958 Geneva Convention on the Territorial Sea,
further specifies that the sovereignty of the coastal State extends to the territorial sea
and to the air space above it, as does the United Nations Convention on the Law of the
Sea adopted on 10 December 1982.
2.1 The principle of territorial sovereignty
Territorial sovereignty and jurisdiction are the very basic tools on which any
realistic understanding of the relationship between a state and a territory may be
expressed. This is more so where a state seeks to exercise any powers of ownership or
exercise any form of public control. One of the fundamental differences between air
law and space law is that, in the former, a state possesses absolute and exclusive
sovereignty over its airspace whereas, in the latter, national appropriation by claim of
 6

sovereignty over outer space is prohibited. Importantly, however, jurisdiction as a

legal term applies both to the airspace and outer space.6
Sovereignty in law is often considered to be the essence of the state. It
explains the powers of a state over its entire territories and its inhabitants. The normal
complements of state rights, including the typical case of legal competence, are
described commonly as sovereignty. The connection between sovereignty and
jurisdiction is, thus, so strong that the term “sovereignty” is sometimes used in place
of “independence” as a basic criterion of statehood. However, sovereignty is said to
have another more satisfactory meaning as an incident or consequence of statehood,
namely, the plenary competence that states, prima facie, possess.7
The principle of sovereignty is also embodied in various important treaties.
Article 2(1) of the UN Charter gives effect to the concept. It is further elaborated on
in the provisions of the 1970 UN General Assembly Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, as follows: “All states enjoy
sovereign equality . . . Each state enjoys the right inherent in full sovereignty.”
Sovereignty in Airspace
The air is a gaseous substance of which the atmosphere is composed. It is
transparent, perfectly elastic and highly compressible. Although very light, it has a
perfectly definite weight in consequence of which it exerts pressure. The entire earth
is enveloped by the airspace and may be considered as a gaseous sea at the bottom of
which we all live and which extends upwards to a considerable height, which
constantly diminishes in density as altitude increases. The airspace is an area that, for
the most part of human existence, was not utilized for any reason other than breathing.
Therefore, the early conceptions, as Borchard describes, it is that air is common
public property, that which everybody may enjoy and which cannot be the object of
exclusive right on the part of any individual or state; similarly, airspace has never
been considered as commercial property.8
The legal concept that a state has territorial rights above the earth is much
older than the history of human flight. There is evidence that Rome did not hesitate to

6
Gbenga Oduntan, Sovereignty and Jurisdiction in the Airspace and Outer Space, Routledge Research
in International Law, 2012, p- 20.
7
Gbenga Oduntan, Sovereignty and Jurisdiction in the Airspace and Outer Space, Routledge Research
in International Law, 2012, p- 20.
8
Ibid, p- 57.
 7

control the use of space whenever deemed necessary to protect public or private rights
on the surface of the earth. The airspace over public highways and over sacred ground
was kept open by law. Roman emperors limited the height to which buildings could
be erected. Private rights in space above the landowner’s property on the surface were
carefully kept and protected. The Roman state, indeed, made its law as effective
above the surface of the earth as it did on the surface. Roman law accepts private
control of airspace above private property, because it considers it inherent in the
ownership of the land itself and does not limit such control to low altitudes.9
Article 1 of the Chicago Convention provides that every state has “complete
and exclusive sovereignty in the airspace above its territory.” Territory includes “the
land areas and territorial waters adjacent thereto under the sovereignty, suzerainty,
protection or mandate of such State” in Article 2.
Freedom and Sovereignty
The fact that states can impose limitations on fights of foreign aircraft stems
from the principle embodied in the Paris Convention, namely that each state has
complete and exclusive sovereignty over the airspace above its national territory. This
fundamental rule has been repeated and sanctioned in the Chicago Convention. The
possibility of allowing greater freedom of movement has, however, been made
explicit in two Agreement to the Convention, which divide the freedom of the air into
five categories.10
The first freedoms are described in the Transit Agreement: they concern the
freedom to fly over a country or to make a technical landing. They are also listed in
the Transport Agreement, together with three more freedoms. The third freedom
enables the state to carry passengers and cargo from its own territory to a foreign
state, whereas the fourth concerns the transport of passengers and cargo from a
foreign sate to its own territory. The right to carry passengers and cargo between two
foreign states is contained in the fifth freedom. It is the latter which causes most
complications in actual practice, so that many states have been reluctant to adhere to
the Transport Agreement.
Apart from the freedom, the Chicago Convention contains some other
provisions clearly related to the principle of sovereignty and worth mentioning in this
9
Gbenga Oduntan, Sovereignty and Jurisdiction in the Airspace and Outer Space, Routledge Research
in International Law,p-13.
10
Prof, Dr.I.H.Ph.Diederiks-Verschoor, An Introduction to Air Law, Kluwer Law International, 7th
edition, 2001, p-12
 8

context. Article 2 of the Convention states: For the purpose of this Convention the
territory of a State shall be deemed to be the land areas and territorial waters adjacent
thereto under the sovereignty, suzerainty, protection or mandate of such State. Article
8 deals with pilotless aircraft. It states that ‘Each contracting State undertakes to
ensure that the flight of such aircraft without a pilot in regions open to civil aircraft
shall be so controlled as to obviate danger to civil aircraft’. Article 9 concerns bans
and restrictions in exceptional circumstances and for reasons of public safety or
military necessity: Article 9 (a) Each contracting State may, for reasons of military
necessity or public safety, restrict or prohibit uniformly the aircraft of other States
from flying over certain areas of its territory, provided that no distinction in this
respect is made between the aircraft of the State whose territory is involved, engaged
in inter. national scheduled airline services, and the aircraft of the other contracting
States likewise engaged. Such prohibited areas shall be of reasonable extent and
location so as not to interfere unnecessarily with air navigation. Descriptions of such
prohibited areas in the territory of a contracting State, as well as any subsequent
alterations therein, shall be communicated as soon as possible to the other contracting
States and to the International Civil Aviation Organization.
Article 9 (b) Each contracting State reserves also the right, in exceptional
circumstances or during a period of emergency, or in the interest of public safety, and
with immediate effect, temporarily to restrict or prohibit flying over the whole or any
part of its territory, on condition that such restriction or prohibition shall be applicable
without distinction of nationality to- aircraft of all other States.
Article 9 (c) Each contracting State, under such regulations as it may
prescribe, may require any aircraft entering the areas contemplated in subparagraphs
(a) or (b) above to affect a landing as soon as practicable thereafter at some
designated airport within its territory.11
The following case, centring around Gibraltar, provides a perfect illustration
of the impact of Article 9.
In April 1967, immediately after the UK had lifted somewhat similar
restrictions in a zone around Gibraltar, Spain proclaimed a ban on all flights over and
around the Bay of Algeciras for fundamental reasons of national security, invoking
Article 9 of the Chicago Convention. The UK first replied to Spain’s move by stating

Prof, Dr.I.H.Ph.Diederiks-Verschoor, An Introduction to Air Law, Kluwer Law International, 7th

11

edition, 2001, p-13.

 9

that the limits of the territorial waters around Gibraltar had never been defined, and
then suggested either negotiating or submitting the case to the International Court of
Justice. In a subsequent move the UK submitted the case of the prohibited zones to
the ICAO Council, first ex Article 54(n), and later, because the case could not be
settled by negotiation, ex Article 84. The UK argued that Spain’s action constituted an
infringement of Article 9, because there was unnecessary interference with air
navigation. Spain countered by saying that she alone was in a position to decide on
every single aspect of the case, invoking Articles 1,2 and other Articles of the
Chicago Convention. Her attitude reflected unmistakably a political point of view and
her insistence on giving a political twist to the dispute.
Given the attitude taken up by Spain, the UK decided that the ICAO Council
was not competent to hear the case, a point of view shared by the then President of the
Council. Accordingly, on 28 November 1969, consideration of the dispute was
deferred sine die, at the request of the parties.
Article 9 is interesting in this context because it highlights the tendency of
states to put their own interests first in certain circumstances, like political aspirations,
military necessity or public safety. This tendency has also prevailed ever since the
Paris Convention of 1919, whose Article 3 contained similar provisions, and it has
remained alive in spite of all efforts aimed at greater freedom for international air
traffic. Such efforts have indeed been successful to a certain extent, as is borne out by
the preamble and text of the Convention. Nonetheless, Article 9, like Article 1, clearly
and unmistakably reflects both the old principle of the sovereignty of a state over the
airspace above its territory and the priority given by states to safeguarding their
interests.12
2.2 Sovereignty Restrictions and No Fly Zone
The right to penetrate foreign airspace and to land on foreign territory in the
event of wreck or of unfavorable weather has been generally accepted and is based on
analogous rights of entry for vessels in the law of the sea. Whether this right extends
to state aircraft is debatable given that the Chicago Convention does not contain an
express exception to Article 3(c) for aircraft in distress. Trespass into airspace over
state territory remains a very serious problem in international relations.
Sovereignty Restrictions

12
Prof, Dr.I.H.Ph.Diederiks-Verschoor, An Introduction to Air Law, Kluwer Law International, 7th
edition, 2001, p-14.
 10

Article 3 (c) of the Chicago Convention on International Civil Aviation states

that no state aircraft of a contracting State shall “fly over the territory of another
State” without its permission. Art. 6: No scheduled international air service may be
“operated over or into the territory of another” State without its permission or other
authorization of that State, and in accordance with the terms of such permission or
authorization. Article 25, which applies to civil aircraft rather than to non-commercial
state aircraft, provides that: “Each contracting State undertakes to provide such
measures of assistance to aircraft in distress as it may find practicable.”
In a sense, therefore, bona fide entry due to distress by a civil aircraft is
strictly speaking not trespass. It needs, however be made clear that entry into foreign
aircraft due to distress is very different from right of “innocent passage” as this
concept simply does not exist in the regime of international air law.
The obligation to assist distressed aircraft under the Chicago regime is based
on elementary considerations of humanity. It has antecedents in the law of the sea and
is echoed in the law commanding assistance to astronauts and return of spacecraft and
other space objects discussed at length later.13
The unhappy conclusion reached in Leiser v. United States, which does not
distinguish between entry due to distress and all other forms of entry into airspace and
which led to the forfeiture of diamonds the appellant failed to declare regardless of the
fact that he came into this country involuntarily and with no “intent to unlade”, has to
our knowledge not found, and will hopefully not find, resonance in the jurisprudence
of other common law states and in international law.14
No Fly Zone
There are, however, essential differences between these operations and the
concept and operations of the no-fly zones developed in the last decade of the 20th
century. For instance, the affected peoples of that era had no air forces, no air
defences and no sovereignty. Perhaps, more important, the sophisticated treaties of air
law including the Chicago Convention had not been created and were not in force.15
The activity of US and British aircraft in the so-called no-fly zones led to
dozens

13
Gbenga Oduntan, Sovereignty and Jurisdiction in the Airspace and Outer Space, Routledge Research
in International Law, 2012, p- 151.
14
Ibid, p- 152.
15
Ibid, p- 161.
 11

of severe military conflicts with Iraqi air and ground forces. During the flyovers over
Iraqi national territory, missile bomb strikes were launched at Iraqi forces, including
civilian targets. In December 1998 alone this allegedly resulted in 420 military
casualties. Over 1,000 civilians were also wounded. The argument that derogation
from Iraqi state sovereignty is justifiable on humanitarian grounds rings hollow given
the manner in which life and property of the Iraqi people had been endangered and
destroyed. However, it will appear that politics rather than humanitarian
considerations account for this, considering that no UN resolution, treaty or agreement
specifically authorised either creation or maintenance of no-fly zones over sovereign
state territory. It may be argued that the maintenance of a no-fly zone by direct
patrols is a clear derogation from the territorial state’s sovereignty, which according
to the Charter of the UN must be recognized by other states. From the perspective of a
state that relies on the existence of an ongoing regime of no-fly zone outside such
strict interpretation the flights into foreign airspace may be justifiable under other
grounds even including humanitarian efforts as in the Iraqi no-fly zones scenario.16
The position, however, is that a no-fly zone significantly detracts from the
right of independence of a state to independence within its territory. A territorial state
ought
to have unfettered access to all parts of its own territory following the usual
tridimensional application of territorial jurisdiction. Territorial states are also entitled
to a tridimensional monopoly of violence within national territory, subject, of, course
to applicable humanitarian considerations. This is probably encapsulated in the
submission that: Sovereignty implies “space”, and what is more it implies a space
against which violence, whether latent or overt, is directed – a space established and
constituted by violence . . . Every state is born of violence, and state power endures
only by virtue of violence directed towards a space. A founding violence, and
continuous creation by violent means (by fire and blood, in Bismarck’s phrase) – such
are the hallmarks of the state.17

16
Gbenga Oduntan, Sovereignty and Jurisdiction in the Airspace and Outer Space, Routledge Research
in International Law, 2012, p- 168.
17
Ibid, p- 169.
 12

2.3 Freedoms of Overflight and Scheduled Tri Traffic

Each State has complete and exclusive sovereignty over the airspace above its
national territory. This fundamental rule has been repeated and sanctioned in the
Chicago Convention. Another distinction to be made in air transport is that between
‘scheduled’ and ‘non-scheduled’ flights.
Freedoms of Overflight
The Chicago Convention did establish the two fundamental freedoms of
overflight and stops for fuel and maintenance, it failed to establish three additional
freedoms sought in an amendment or annex to the Chicago Convention. The three
freedoms sought in the unsuccessful annex were
1. The right of a country’s airlines to transport passengers and/or cargo from its
home nation to a second nation without special authorization.
2. The right of a country’s airlines to freely transport cargo and passengers from
a second nation back to its home nation.
3. The right of a country’s airlines to freely transport passengers and cargo
between a second and third nation.
In the end, the Chicago Convention left these issues up to the individual
nations involved to negotiate directly. If all these freedoms were codified in the
Chicago Convention, the result would have been a sort of “open skies” agreement
among the more development nations of the world.18
Although the multilateral Chicago Convention failed to create an open skies
environment for international air transportation, it did spawn several bilateral
agreements (agreements between individual nations) that have effectively created a
more open skies type of approach over time. The first of these bilateral agreements
was known as the Bermuda I agreement. Bermuda I was entered into in 1946, and the
sole parties were the United States and Great Britain. The Bermuda I agreement
permitted the airlines of United States and Great Britain to operate to and from each
country but only to designated “gateway” airports. Each airline would be allowed as
many flights as it desired. Agreements similar to Bermuda I were entered into
between the United States and many other nations. Similar agreements were also

18
Raymond C. Speciale, Fundamental of Aviation Law, the McGraw-Hill Companies, Inc, 2006, p-
282.
 13

entered into by various nations throughout the world. Later, the Bermuda I agreement
was superseded in 1967 by Bermuda II.19
In 1992, the Department of Transportation initiated an “open skies” initiative
that would allow for a more liberal framework for air route selection, capacity
determinations, fare setting, and frequency of flights. The first open skies agreement
was entered into in October 1992 between the United States and the Netherlands.
Subsequently, the United States entered into open skies agreements with 13 European
nations. Open skies agreements were subsequently entered into with Canada, South
America, Peru, Malaysia, Taiwan, New Zealand, and Singapore, among others.
Some of the newer bilateral open skies’ agreements have been opened up what
are referred to as beyond rights. These beyond rights permit air carriers to fly cargo to
a partner country and then fly directly from the partner country to a third nation with
no requirements that the flights first return to the United States.
Other Open skies initiatives target the logistics of hundreds of bilateral
agreements between individual countries. The trend appears to be moving in the
direction of more multilateral open skies agreements such as the agreement entered
into in 2002 between the United States, Brunei, Chile, New Zealand, and Singapore.
In one recent effort, the United States and the European Union (EU) have entered into
an agreement that will allow any U.S or EU airline to operate flights to any U.S or EU
destination.20
Scheduled and non-scheduled Air Traffic
Another distinction to be in air transport is that between scheduled and non-
scheduled flights. Article 6 of the Chicago Convention provides that ‘no scheduled
air service may be operated over or into the territory of a contracting State, except
with special permission or other authorization of that State, and in accordance with
the terms of such permission or authorization’. Therefore, each state is free to impose
such limitations as it deems fit on the aircraft of a foreign state. As for no scheduled
flights, which are covered by Article 5, Gousdsmit rightly observes that it was drafted
to guarantee non-scheduled air traffic freedom and flexibility. In practice, states have
been given the possibility of subjecting this freedom to certain restrictions.21

19
Raymond C. Speciale, Fundamental of Aviation Law, the McGraw-Hill Companies, Inc, 2006, p-
282.
20
Ibid, p- 283.
21
Prof, Dr.I.H.Ph.Diederiks-Verschoor, An Introduction to Air Law, Kluwer Law International, 7th
edition, 2001, p-15.
 14

Scheduled and non-scheduled air services differ in that the latter are not
carried out according to a published timetable, and are not subject to the rates and
tariffs applicable to regular scheduled air traffic. Non-scheduled air transport is
effected by aircraft not engaged in regular air services. The sudden rise in the volume
of non-scheduled transport after the Second World War may be explained by the
greatly disorganized state of land and sea communications. There was a sharp
increase in demand for additional air transport services, but the airlines engaged in
regular scheduled flights could not meet that demand adequately. Besides, a large
number of ex-military transport planes became available for commercial use, as well
as many ex-military pilots who were keen to use their wartime experience for
practical ends.22
In the 1960s, when the jet-age really got under way, there was an even greater
demand for charters. In addition, holiday traffic to foreign countries increased
considerably, notably the phenomenon of inclusive tours, which offer transport and
hotel accommodation in a single package deal. The ever-increasing volume of charter
flights has posed a great threat to the scheduled air services: so much so that a
completely new relationship between scheduled and non-scheduled air transport may
be lie ahead, as will be shown below.
On 28 March 1952, the ICAO Council adopted the following definition of
scheduled international services:
A scheduled international air service is a series of flights that possesses all the
following characteristics:
(a) It passes through the airspace over the territory of more than one State;
(b) It is performed by aircraft for the transport of passengers, mail or cargo for
remuneration, in such a manner that each flight is open to use by members of
the public;
(c) It is operated so as to serve traffic between the same two or more points, either
according to a published timetable or with flights so regular or frequent that
they constitute a recognizable systematic series.23

22
Prof, Dr.I.H.Ph.Diederiks-Verschoor, An Introduction to Air Law, Kluwer Law International, 7th
edition, 2001, p-16.
23
Ibid, p-17.
 15

In Myanmar
For regular international scheduled flights operated by foreign airlines into or
in transit across the Republic of the Union of Myanmar, the following requirements
must be met: the State of the airline must be a party to the International Air Services
Transit Agreement and/or the International Air Transport Agreement whereby the
Republic of the Union of Myanmar is a party to both agreement; the airline must be
eligible to make the flights under the provisions of a bilateral or multilateral
agreement to which the State of the airline and the Republic of the Union of Myanmar
are contracting parties and must have a permit to operate into or in transit across the
Republic of the Union of Myanmar. Application for such permits shall be submitted
to: Air Navigation Safety Division of Civil Aviation, Airlines Operator wishing to
operate as schedule flights are to submit their application furnished with fleet status
including leased aircraft, contact person, mailing address, contact phone number, fax
number, e-mail address; change to any of the above is to be notified in advance,
preferably one month and address be made to Director- General, Department of Civil
Aviation. The following considerations are made before granting approval as
scheduled overflight: The stability of flight; The frequencies of flight; Other factors
deem qualified for approval.
For Airlines operator already obtained approved scheduled over flight, should
the termination of flight has become apparent, to notify in advance of one month
before termination of flight take place. Myanmar practices 2 scheduled cycles,
Summer and Winter. Summer schedule commenced on 1st April of each and end on
31st October of that year. Winter schedule commenced on 1st November of each and
end on 31st March of next year. Renewal should be made at least in advance of one
month. Discontinuation also be made at least in advance of one month.
Failure to comply will result delayed approval.
Any change in fleet status should be notified when renewing scheduled cycle
together with change of mailing address, phone number, fax number, etc.
Non-scheduled Flights
Overfly
If an operator intends to perform a Non-schedule flight or a series of Non-
scheduled flights into the Republic of the Union of Myanmar for the purpose of
overflying, he shall apply to: Air Navigation Safety Division of Civil Aviation...
including information in the following order:- Name of the operator and the mailing /
 16

billing address; Type of aircraft and registration marks; Full itinerary on schedule
including point of departure, point of destination, date and time of overflight; Purpose
of overflight (Passenger or Cargo) or freight, if Cargo and freight, to declare of
Cargo / freight; Consignee / consignor or charterer; Contact person, Telephone
Number, Fax number, Email Address (if applicable), SITA address (if applicable),
AFTN address (if applicable).24
Landing Permits Airspace entry points and times per your itinerary. Permit
Number passed to Flight Department or printed on Operational Flight Plan.
Resolution for Refused permits (e.g. for outstanding Navigation fees) discussed with
Authority. Itinerary Changes Transmitted and confirmed at no charge. Diplomatic
Permits Diplomatic Clearance for, politically sensitive flights, Dangerous Goods,
etc.25
A basic principle of international air law is that every state has complete and
exclusive sovereignty over the airspace above its territory, including its territorial sea.
Airspace is now generally accepted as an appurtenance of the subjacent territory and
shares the latter's legal status.

24
https://dcamyanmar.com/dcadca/index.php?option=com_content&view=article&id=7.
25
https://www.worldairops.com/permits/myanmar.html.