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East Yangon University

Department of Law

Law-632(B)
International Air and Space Law
Sovereignty over the air

Name Thet Su San

Roll No LLM -05

Introduction
With the rapid advances being made in modern technology new legal problem are
arising continuously. An interesting one which has caused quite a few comments in recent
years is the extent of a country's sovereignty over the airspace above its territory.
Theories as to the air space
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• It is universally agreed that the air space over the open sea bed over unoccupied territory is
absolutely free. As regard air space over the occupied territory, both national and territorial,
there is a difference of view among jurists and the different theories in this regard may be
stated s below. The first theory advocate that the air space is entirely free and open to all. The
second theory propounds upon the analogy of the maritime belt that the lower zone of air
space is free. The third theory is that air space to an unlimited height lies within the domain
of subjacent State. The last theory is that air space is within the sovereignty of the subjacent
State Subjacent State subject to a servitude of innocent passage for civil air craft but not
military aircraft.
Before the First World War it was generally agreed that air space over the territory of
national and territorial waters of a State was within the exclusive sovereignty of the subjacent
State without any servitude of innocent passage for foreign aircraft.
Paris Convention
In 1919, a Conference of the principal State at Paris adopted an instrument known as
the Convention for the Regulation of Aerial Navigation. This Convention applies at the time
of peace only. The United States of America was not a party to this convention. The main
provisions of the Convention were (1) The Contracting States recognized that every States
had completed and exclusive sovereignty in the air space above its territory and territorial
waters, but each party undertook to accord in time of peace freedom of innocent passage to
the private aircraft of other parties long as they complied with the rules of the Convention.
Each contracting States also reserved the right to prohibit all private flying over certain areas
for military reasons or for public safety. (2) The aircraft must bear their nationality and
registration marks and name and residence of their owner when engaged in international
navigation.(3) Every private aircraft engaged in international navigation must carry(a) a
certificate of registration (b) a certificate of airworthiness from State to which it belongs
(c)certificate of competency and licenses in respect of each member of the operating crew
(d)a list of passengers(e) bill of lading (f) log books and (g) special licenses, for wireless
equipment. Private aircraft exercising their right of innocent passage across another State
without landing must follow the route prescribed by the State flown over and must land even
against their will if ordered to do so. (4) The authorities of the territorial State have the right
to visit every foreign private aircraft and verify its documents upon landing and upon
departure. (5) Military aircraft may not fly over or land in the territory of another party
without special authorization. (6) The Convention established an international Commission
for Air Navigation as a permanent Commission under the direction of the League of Nations¹.
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The Chigago Convention 1944

The international Civil Aviation Conference met at Chicago in 1944 to conclude
worldwide arrangement for commercial air traffic rights as also technical and navigational
matters. The Conference discussed a variety of subjects and there was a proposal to obtain
agreement by all States to the concession of the "Five Freedoms of the Air", namely the
rights of the airlines of each State.
(a) To fly across foreign territory without landing
(b) To land for non-traffic purposes
(c) To disembark ina foreign country traffic originating in the State of origin of the
aircraft
(d) To take on passenger, mail, and cargo destined for the territory of that State whose
nationality the aircraft possesses and
(e) To carry traffic between two foreign countries.
The international Air Services Transit Agreement embodying the five freedoms was
signed by 19 States only and a majority of the States represented at the Conference did nit
sign this agreement.
An international Air Service Transit Agreement was ultimately drawn up which
embodied an agreement on the part of the States to grant to international air services the first
two freedoms namely the privilege to fly across foreign territory without landing and to land
for non-traffic purposes in foreign territory. This agreement was signed in1945 by 33 States
and was in force among forty-one States. Soviet Russia was however not a party to the
agreement.
Article 1 of the Chicago Convention recognized complete and exclusive sovereignty
of every State over the air space above its territory. The Convention granted freedom to fly
across the territory of the contracting States without landing and freedom to land in the
territory of the contracting States for non-traffic purposes.

.1.M.P TANDON, International Law Fourth Edition

The flight of Sydney Cotton over the territory of India to Hyderabad before the Police Action,
without the permission of the India Government was severely commented upon by the
Government of India on the ground that the passage was not innocent inasmuch as he was
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engaged in transporting arms and ammunitions to Hyderabad. On the complaint of India the
British Air Ministry suspended the flying license of Sydney Cotton.
International Civil Aviation Organization
As a result of at the agreement arrived at the Chicago Conference, an International
Civil Aviation Organization has been established replacing the 1919 International
Commission for Air Navigation. The new Organization one of the specialized agencies of the
United Nations and decides subject to appeal to the International Court of Justice disputes
between members relating to the application of the Convention. Fifty-five States had joined
this Organization by 1950.
The provisional International Civil Aviation Organization began functioning in
August 1945 and was replaced by the permanent body on April 4, 1947. It has to study
problems of international civil aviation and to establish international standards and
regulations. Its principal achievement in the legal field was that I.C.A.O. Assembly's
adoption in June 1948 of a Convention on the international recognition of rights in aircraft. A
second legal Convention, on damage caused by aircraft to third parties on the surface is
before the I.C.A.O. Council.
The Convention of 1919 was drawn up at the Peace Conference of 1919 and signed
on October 13,1919. It applies to the time of Peace only and does not affect the freedom of
action of the parties in time of war, either as belligerents of 2 neutrals (Article 38). Its
provisions are as follow:
(a) Sovereignty over the Air
(b) Nationality of Aircraft
(c) International Navigation by Private Aircraft
(d)Jurisdiction over Private Aircraft
(e) State Aircraft are of two classes
a. Military; those command by a person in military service detailed for the
purpose
b. Nonmilitary but exclusively employed in State service such as posts,
customs, nd police.
(f) The International Commission
(g) Amendments to the Convention.
Sovereignty Over the Air
It recognizes that every state has complete and exclusive sovereignty in the air space
above its territory and territorial waters but each party undertakes to accord in time of peace
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freedom of innocent passage to the private aircraft of other parties so long as they comply
with the rules made by or under the authority of the Convention. Any regulations laid down
by a party in accordance with the Convention as to the admission if such aircraft are to be
applied without distinction of nationality. Each contracting States, however reserve the right
to prohibit all private flying over certain areas for military reasons or for public safety.
As regards sovereignty over the air, "The contracting states recognize that every state
has complete to exclusive sovereignty over the air space above its territory. For the purposes
of the Chicago Convention, the territory of a state shall be deemed to be the land areas and
territorial waters adjacent thereto under the sovereignty of such state."
The Convention is applicable only to the civil aircraft, and not to the a applicable to
state air craft. State aircraft means aircraft used in military, customs and police services. No
state aircraft shall fly over the territory of another state or land thereon without authorization
by special agreement or otherwise, and in accordance with the terms thereof.
The Convention grants to aircraft not engaged in "scheduled international air service"
the right to make flights into or in transit non-stop across the territory of a state party, and to
make stops for non-traffic purposes 100 without obtaining that State's prior permission,
subject to the right of that state to require immediate landing.
The aircraft of "scheduled international air service" have no transit or landing without
the express authorization of the state to be flown over.
Under the Convention, aircrafts have the nationality of the state in which they are
register.
An example of the violation of airspace of great political importance occurred in the
U2 incident (1960).
On May 1, 1960, a U-2, a United States high altitude reconnaissance aircraf, was shot
down at a height of 20,000 meters over Soviet territory. The U2 had taken off from Pakistan
and was scheduled to land in Finland after taking The U aerial photographs while over Soviet
territory. Besides shooting down the U-2, the USSR arrested its pilot Captain Powers and
tried him in accordance with occurred in the U-2 Incident (1960). Law of the USSR.
The USSR protested the flight of U-2 over Soviet territory. At Summit Meeting, the
US President took personal responsibility for U-2 incident and refused to apologies. As the
result, the conference was broken down.
International law recognized the complete and exclusive sovereignty of State in their
air space without any limit of height as provide in Chicago Convention, 1944. The U.S.A is a
party to that Convention. It is submitted that the U-2 in penetrating deep into the Soviet
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territory violated international law first by illegally trespassing the Soviet air space and
secondly by engaging in espionage. Both the aerial reconnaissance and espionage in time of
peace are illegitimate.
The Soviet Union was, according to Quincy Wright, justified in forcing the U-2 down
and in proceeding under its criminal law against the pilot.
Wireless Communication
The jurisdiction which a State is entitled to exercise over its superjacent air space
enables that State to prevent In injurious transmissions by means of Herzia waves emanating
from foreign sources. The International Wireless Telegraph Convention of Berlin 1906
provided for an exchange of wireless telegrams between coastal stations on shipboard. There
were subsequently the London-Radio Telegraphic Convention 1912 and the London
Convention 1914. In 1927 the Washington Conference concluded a new International Radio
Telegraph Convention Article 2 of which provided that "the contracting Governments
undertake to apply the provisions of the present Convention, the radio communication
stations established or operate by the Contracting Governments and open to the international
service of public correspondance. The International Telecommunication Convention was
concluded at Madrid on December 9,1932, and September 15,1948 introduced legal
regulations in this domain whereby the parties have undertaken definite obligations with
regard to the operation and installation.
Conclusion
Sovereignty over the air is very important for a State. If a State has no sovereignty
relating to her air space territory, there will be cause the questions between States.