Entradas

In civil aviation, starting from the earliest times, state sovereignty has been defined by the Convention145 based on the impact of states’ considerations about economic benefits and

135 _{Dean N. Reinhardt, ‘The Vertical Limit of State Sovereignty’ Vol. 72, Issue 1 (Winter 2007) Journal of Air}

Law and Commerce 6594.

136 _{ibid 88.} 137 _{ibid 69.}

138 _{Brian F Havel, Gabriel Sanchez, The Principles and Practice of International Aviation Law (Kindle Edition,}

Cambridge University Press. June 2014) location 1405 of 15733

139 _{Dean N. Reinhardt, ‘The Vertical Limit of State Sovereignty’ Vol. 72, Issue 1 (Winter 2007) Journal of Air}

Law and Commerce 65 “The include relatively low-cost suborbital vehicles capable of providing short flights for tourists, vehicles operating at high altitude with intercontinental ranges, and autonomous long endurance high altitude vehicles used to conduct surveillance or as communication platforms. Some of these vehicles have moved beyond paper and demonstrated their capabilities.” 88.

140 _{Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including}

the Moon and Other Celestial Bodies (1962)

<http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html> accessed 13 May 2019

141 _{ibid Art.2} 142 _{ibid Art.3} 143 _{ibid Art.1} 144 _{ibid Art.1}

87

political concerns.146 _{The Chicago Convention of 1944 underlines that the exclusive}

sovereignty of states over their territory means that access to the airspace of another state depends on permission given by that state.147 However, the state sovereignty approach of the Chicago Convention (1944) is not absolutist.148 The Contracting States do not have unlimited freedom in their airspace as the Convention’s wording may imply.

International air service is defined as ‘an air service that passes through the airspace of more than one state.’149 _{The Convention limits the power of the principle of absolute state}

sovereignty in international air services based on the character of scheduled or non-scheduled international air services.

Article 5 of the Convention regulates the ‘rights of non-scheduled flights.’150 Accordingly, the contracting States grant each other the right to make flights into or in transit non-stop across their territory and to make stops for non-traffic purposes without the necessity of obtaining permission.

On the other hand, Article 6 of the Convention regulates scheduled air services. Scheduled flights require special permission to cross the air borders of another state. Accordingly, no ‘scheduled international air service’151 _{may be operated over or into the territory of a}

Contracting State, except with the special permission or other authorisation of that State. In Article 7, the cabotage rights of the Contracting States are regulated as another indication of the principle of state sovereignty. Accordingly, ‘each contracting State shall have the right to refuse permission to the aircraft of other Contracting State to take on its territory

passengers, mail and cargo carried for remuneration or hire and destined for another point within its territory.’

146 _{Alan P. Dobson, Joseph A. McKinney, ‘Sovereignty, Politics, and U.S. International Airline Policy’}

(Summer 2009) Vol. 74, Issue 3 Journal of Air Law and Commerce 527

147 _{Chicago Convention (1944) Article 1}

148 _{Brian F Havel, Gabriel Sanchez, The Principles and Practice of International Aviation Law (Kindle Edition,}

Cambridge University Press. June 2014) location 1448 of 15733

149 _{ICAO Manual on the Regulation of International Air Transport, Doc.9626 (Second Edition 2004) 5.3.1}

<http://www.icao.int/Meetings/atconf6/Documents/Doc%209626_en.pdf > accessed 9 May 2019

150 _{ibid “non-scheduled air service is a commercial air transport service performed as other than a scheduled}

service” 4.6.1

151 _{ibid, “scheduled air service is typically an air service open to use by the general public and operated}

according to a published timetable or with such a regular frequency that it constitutes an easily recognizable systematic series of flights” 5.3.1

88

Another right is given to the contracting States which allows them to establish prohibited areas. Article 9 of the Convention states that ‘prohibited areas shall be of reasonable extent and location so as not to interfere unnecessarily with air navigation.’ However, the

contracting States shall not discriminate ‘between the aircraft of the State whose territory is involved.’152

One landmark amendment to the idea of unlimited state sovereignty in the Convention was the adoption of Article 3 bis153 after a Soviet military aircraft shot down Korean Airlines flight 007, which was flying over Soviet territory, killing the 269 people aboard.

The new article, Article 3 bis paragraph a) states:

The contracting States recognize that every state must refrain from resorting to the use of weapons against civil aircraft in flight and that in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and

obligations of states set forth in the Charter of the United Nations.154

Article 3 bis applies and reaffirms the customary international law. This means that the duty to refrain from the use of weapons against civil aircraft in flight had already existed,

regardless of the amendment to the Convention.155

Article 8 also applies the sovereignty principle to regulate permission for pilotless aircraft to fly over the territory of another state, and Article 10 applies it to regulate the admission to and departure from state territory.