Chicago Convention on International Civil Aviation

Most of the aviation is carried out internationally. Therefore, the world community came together to unify the international rules and drafted multilateral conventions. These multilateral conventions aimed at securing the protection and safety of the public. One such Convention was formulated and is known as the Convention on International Civil Aviation of 1944 or commonly referred to asthe Chicago Convention.

This convention updated essentially and replaced the Paris Convention of 1919. The Chicago Convention of 1944 is also known as the “magna carta” of the Public International Law relating to Aviation. The Chicago Convention is considered as an organic constitution for organisations as well as a major source of Air law.

Introduction: Background of the Convention

With regard to the international civil aviation, the Convention on Civil Aviation contains all the legal rules, rights and obligations of various states. On 7th December, 1944, the Convention on International Civil Aviation was signed at Chicago. For international civil aviation activities, the convention laid a legal framework while the other facets of the activities are covered by various other bilateral and multilateral agreements.

Prior to the Chicago Convention, at the Paris Peace Conference, Agreements the Regulation of Air Navigation was signed in 1919. The aim of the Regulation of Air Navigation was to have a better control on aviation and the fundamental principle on which it is based is the ‘air sovereignty.’ Even though the United States upheld the principle of air sovereignty but was not present at the Paris conference.

United States did not support the Convention as it believes that the issue of freedom of air commerce covered in the convention was insufficient. All the Allied Powers signed the Atlantic Charter of 1941 as its object was to provide freedom in international exchange and was founded on the freedom of commerce and transport. But due to the Second World War, all the commercial air transportation collapsed and was severely affected.

Therefore, for the period of post-war establishment, a new legal framework was attempted by the United States for the achievement of the principle of freedom of air commerce. So, in 1944, from 1st November to 7th December, the International Civil Aviation Conference was held at Chicago, Illinois. 52 states attended this conference.

The main instruments adopted by the Conference were:

  • Provisional International Civil Aviation Organisation (PICAO) to be set- up as an interim agreement until the main convention is enforced
  • Main Convention i.e., the Convention on International Civil Aviation to be adopted. It replaces all the previous international organisations including the Paris Convention on Aerial Navigation of 1919.
  • Two Freedoms Agreement or the International Air Services Transit Agreement
  • Five Freedoms Agreement or the International Air Transport Agreement
  • 12 annexed drafts to the main Convention that sets out recommendations and standards for the operation of International Civil Aviation.
  • For the international scheduled air services, standard form of bilateral agreement was recommended for the exchange of traffic rights.

The Convention on International Civil Aviation of 1944 or the Chicago convention was formulated to promote cooperation and to create and preserve friendship and understanding among various nations and peoples of the world.1 The Convention provides for comprehensive modernisation of the basic public international law regarding the air. Thus, the Chicago convention was a landmark agreement as it establishes the fundamental rules permitting international transport by air and it led to the formation of the International Civil Aviation

Organisation (ICAO) as a specialised agency.

The objectives of Chicago conference to promote international air transport were as follows – They are categorised into economic and technical objects. The economic objectives were:

  • The promotion of freedom of airspace to the nations,
  • For the ascertainment of air fares, schedules, frequencies, and capacities a procedure to be developed,
  • To simplify the process of customs and the standardisation of visas.

Technical objectives sought were:

  • Licensing of pilots, mechanics, registration as well as the certification of the airworthiness of aircraft,
  • Navigation facilities and services to be planned and developed,
  • Standard system of communication to be established.

Territorial Jurisdiction

  • The Chicago convention of 1944, in Article 1, provides that the contracting states recognize that every State has got the complete and exclusive sovereignty over the airspace above its territory.2 Considered as the core principle of the customary international law, this fundamental law was first recognized in 1919 in the Paris Convention.
  • The territory of a State for the purpose of this convention is determined by the provision of Article 2.

Article 2– Territory: For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent hereto under the sovereignty, suzerainty, protection or mandate of such State. Thus, the territory of any State covers the land areas as well as the territorial waters which are under the sovereignty and protection of the State.

  • The area covered by the territorial waters is determined as per the provisions contained in the UN Convention on the Law of the Sea.

Article 3- Breadth of the territorial sea:

Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

  • The sovereignty of an archipelagic State is determined according to Article 49 of the UN Convention on the Law of the Sea.

Article 49- Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil:

  • The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.
  • This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein.
  • This sovereignty is exercised subject to this Part.
  • The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein.

This means that the sovereignty of an archipelagic State extends to the airspace above its waters which are enclosed by the baselines that are drawn according to Article 47 of the UN Convention on the Law of the Sea. Further, on the airspace above the Contiguous Zone or on the Economic Zone, the principle of airspace sovereignty does not apply.     

Types of Aircraft

The various types of aircrafts covered under the Chicago Convention are- Civil aircraft, State aircraft, Pilotless aircraft, Non-Scheduled air flight and Scheduled air services. So, now let’s understand each one of them:

Article 3 of the Convention on International Civil Aviation, 1944 explains about the Civil and state aircraft. The Article states that this Convention is applicable only to civil aircraft and will not apply on the state aircraft. Aircrafts that are used for the military, customs as well as in the police services are deemed as state aircraft.

Article 8 talks about Pilotless aircraft, no aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization. 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.

Non-scheduled aircrafts are those aircrafts that can make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission

Scheduled aircrafts are provided for in Article 6. It states that scheduled international air service can operate only with the special permission and authorization over or into the territory of any contracting State.

Right of Overflight

The International Air Services Transit Agreement, commonly referred to as the Two Freedoms Agreement, multilaterally conferred the rights of overflight. It provides that mutual exchange of air transit rights will be granted to the 130 states parties to the International Air Services Transit Agreement. The right of overflight is contained in the Air Transit Rights. It means that states can overfly over the territory of another state without any stop (the first freedom of the air).This right also includes right to overfly with a stop for technical purposes, i.e., for purposes other than taking on board passengers, mail or cargo (the second freedom of the air).

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