Towards a Single African Sky: Challenges and Prospects
| Pages | 250-272 |
| Author | Angelo Dube |
| DOI | 10.3366/ajicl.2015.0120 |
| Published date | 01 June 2015 |
| Date | 01 June 2015 |
From the outset the international law position was that the airspace above the high seas was not subject to the sovereignty of any state.
P. B. Larsen,
J. Dugard,
See the
The International Law Association, sitting in 1913 in Madrid adopted a Resolution on the Law of the Air which declared the right of every state to enact such prohibitions, restrictions and regulations as it may think proper in regard to the passage of aircraft through the airspace above its territory and territorial waters. See J. Kish and D. Turns,
Initial thoughts on the subject of territoriality of airspace dismissed the idea of sovereignty over a block of air, and instead treated the airspace as an entirely free continuum much like the high seas.
Dugard,
The year 1910 saw the first international air law conference, and signalled a global attempt to create a regulatory regime for civil aviation. This conference did not, however, succeed in adopting a convention due to disagreement among participating states on whether they should offer equal treatment to foreign and national aircraft with respect to freedom of overflight. See D. W. Freer, ‘An aborted take-off for internationalism: 1903–1919’, 41:4
The end of the First World War presented the world with an opportunity to embrace aviation as an integral tool for development. The war had, however, revealed both the pros and cons of this new frontier. The long range transportation of goods and persons as well as the advantages of aviation to the safety and security of states stood out as a key consideration for states. Aviation was not without the potential of having a deleterious impact, and it is this possibility that rallied states together to regulate civil aviation from as early as 1919. Initially, 27 states appended their signatures to the newly drafted Convention on 13 October 1919. This new Convention was produced with texts in French, English and Italian and contained 43 articles that dealt with all the technical, operational and organisational aspects of civil aviation. There is general acceptance that the year 1919 marks the birth of modern-day aviation. See ‘The Postal History of ICAO’, available at
The Chicago Convention was signed by 52 states on 7 December 1944 and came into effect almost three years later on 4 April 1947. The Convention established rules of airspace, aircraft registration and safety, and details the rights of the signatories in relation to air travel; it also exempts air fuels from tax. The Convention provided for the sovereignty of airspace above the territory of each state, together with five freedoms (later expanded to nine by the addition of four unofficial freedoms), which govern the freedom of states to operate air transport flights (including the carriage of passengers, cargo and mail) across, into and within the airspace of other states. Only the first two of these freedoms apply automatically to signatory states, the remainder being subject to national agreement. The Convention also established the International Civil Aviation Organization (ICAO), a specialized agency of the United Nations charged with coordinating and regulating international air travel.
Article 1 Chicago Convention.
Article 2 Chicago Convention.
The Chicago Convention broadened the rights of states into nine broad categories, namely: (1) Right to overfly a foreign country without landing; (2) Right to refuel or carry out maintenance in a foreign country; (3) Right to fly from one's own country to another; (4) Right to fly from a foreign country to one's own; (5) Right to fly between two foreign countries during flights that begin or end in one's own; (6) Right to fly from one foreign country to another one while stopping in one's own country; (7) Right to fly between two foreign countries while not offering flights to one's own country; (8) Right to fly between two or more airports in a foreign country while continuing service to one's own country; and (9) Right to fly inside a foreign country without continuing service to one's own country.
Article 1 Chicago Convention. The Convention clearly stipulates in Article 3 that it shall apply only to civil aircraft, and not state aircraft. State aircraft include aircraft used for policing and customs purposes and military aircraft.
Article 28 Chicago Convention.
ICAO came into being on 4 April 1947 and was initially known as the Provisional International Civil Aviation Organisation (PICAO). In October of the same year, ICAO became a specialised agency of the United Nations linked to Economic and Social Council (ECOSOC). It is established by the Chicago Convention. As stated in the Convention, the purpose of ICAO is to promote cooperation between nations in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically. In 1944 when the PICAO was disestablished, and ICAO set up in its place, the organisation comprised of 52 states, an improvement from the Paris Convention's 27 states 25 earlier in 1919. Today ICAO's membership stands at 190 states. ICAO main plenary organ, the Assembly meets every three years and elects the organisation's governing body, the Council. Up to 36 countries sit on the Council which is a permanent body, and is responsible to the Assembly. States serve on the Council for three years. In the election, adequate representation is given to States of chief importance in air transport, States not otherwise included but which make the largest contribution to the provision of facilities for international civil air navigation and States not otherwise included whose designation will ensure that all major geographic areas of the world are represented on the Council. See
This paper aims to demonstrate the dangers posed by the current air traffic management system, which is heavily influenced by notions of state sovereignty and...
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