Abstract
The contracting States recognize that every State has complete and exclusive sovereignty over the air space above its territory.
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Notes
- 1.
Montevideo Convention on the Rights and Duties of States, signed at Montevideo, 26 December 1933. The Convention entered into force on 26 December 1934. See http://www.taiwandocuments.org/montevideo01.htm.
- 2.
Bijo Francis, a human rights lawyer with the Asian Human Rights CommissionIt states: “It is interesting to note that in India, whenever in India, the state legislatures or the central parliament has tried using parliamentary privilege for unjustifiable reasons against the judiciary, the judiciary has corrected the legislative houses. Additionally, the basic structure doctrine, postulated in Kesavananda Bharati (petitioner) against State of Kerala and others (respondents) [All India Reporter 1973 Supreme Court p. 1461], triumphs the clarion call of the power of judicial review and the limits drawn upon the parliament, even in its legislative authority.” See Bijo Francis, Does the Impeachment of the Chief Justice of Sri Lanka Matter, The Sri Lanka Guardian, 22 November 2012.
- 3.
For an extended discussion on this issue see Milde (2012) at 8–10
- 4.
Cooper (1968) at 55.
- 5.
42 tit.24, pr 22 S 4.
- 6.
Bouve (1930).
- 7.
Baldwin (1910).
- 8.
Cooper (1968) at 29.
- 9.
2RIAA, at pp. 829, at 838 (1928).
- 10.
Cheng (1962) at 3. See also pages 3–17 for a discussion of the manner in which air rights devolve upon carriers under the sovereignty doctrine of the Chicago Convention.
- 11.
Brownlie (1990) at 287.
- 12.
Starke (1977) at 106.
- 13.
- 14.
Starke, Supra Note 12. Ibid.
- 15.
According to Article 5 each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the terms of this Convention, to 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, and subject to the right of the State flown over to require landing. Each contracting State nevertheless reserves the right, for reasons of safety of flight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such flights. Article 6 states that no scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.
- 16.
Memorandum PRES AK/97 dated 26 February 1996 from President of the Council to Representatives on the Council, Attachment.
- 17.
S/PRST/1996/9, 27 February 1996 at 35 I.L.M. 493 (1996).
- 18.
ICAO Doc 9676-C/1118, C-MIN 147/1-16: Council—147th Session, Summary Minutes with Subject Index at 68–71.
- 19.
Id. at 79–92.
- 20.
Id. at 88.
- 21.
Id. at 102–103.
- 22.
Ibid. at 103.
- 23.
For the resolutions quoted above, see Doc 8900/2 Repertory—Guide to the Convention on International Civil Aviation, Second Edition, 1977 at pp. 1–3.
- 24.
Memorandum dated 2 September 1983 from President of the Council to the Representatives on the Council, Attachment 1.
- 25.
Id. Attachment 2.
- 26.
A24-WP/85.
- 27.
See C-WP/9781 Appendix for the Secretary General’s Report.
- 28.
ICAO Doc 9615-C/1110, C-MIN 139/1-17: Council—139th Session, Summary Minutes with Subject Index at 69.
- 29.
Id. at 72.
- 30.
ICAO Doc 9061, Chapter II, note 60.
- 31.
C-WP/5764, Attachment.
- 32.
C-WP/5792 at p. 33.
- 33.
There are some examples of imputability, for example the incident in 1955 when an Israeli civil aircraft belonging to the national carrier El Al was shot down by Bulgarian fighter planes, and the consequent acceptance of liability by the USSR for death and injury caused which resulted in the payment of compensation to the victims and their families. See 91 ILR 287. Another example concerns the finding of the International Court of Justice that responsibility could have been be imputed to the United States in the Nicaragua case, where mines were laid in Nicaraguan waters and attacks were perpetrated on Nicaraguan ports, oil installations and a naval base by persons identified as agents of the United States. See Nicaragua v. the United States, ICJ Reports 1986, 14. Also, 76 ILR 349. There was also the instance when the Secretary General of the United Nations mediated a settlement in which a sum, inter alia of $ 7 million was awarded to New Zealand for the violation of its sovereignty when a New Zealand vessel was destroyed by French agents in New Zealand. See the Rainbow Warrior case, 81 AJIL, 1987 at 325. Also in 74 ILR at 241.
- 34.
Report of the International Law Commission to the General Assembly on the Work of the 1st Session, A/CN.4/13, June 9 1949, at 21.
- 35.
The European Union Emission Trading Scheme (EU ETS) is the largest multi-national, greenhouse gas emissions trading scheme in the world and is a main pillar of EU climate policy. Under the Scheme, each participating country has a National Allocation Plan (NAP) specifying caps on greenhouse gas emissions for individual power plants and other large point sources. Each facility gets a maximum amount of emission “allowances” for a particular period (e.g. 2005–2007). To comply, facilities can either reduce their emissions or purchase allowances from facilities with an excess of allowances. Progressively tightening caps are foreseen for each new period, forcing overall reductions in emissions.
- 36.
See generally, Havel and Mulligan (2012) at 3–33.
- 37.
There is a general common law presumption against the extra territorial application of legislation. See the House of Lords decision in Holmes v. Bangladesh Biman Corporation [1989] AC 1112 at 1126; 87 ILR 365 at 369. Also, Air India v. Wiggins [1980] 1WLR 815 t 819; 77 ILR 276 at 27.
- 38.
See The US Sherman Antitrust Act 1896 15 USC paras 1ff.
- 39.
US. v. Aluminium Company of America, 148 F.2d 416 (1945).
- 40.
Timberlane Lumber Company v. Bank of America 549 F.2d 597 (1976); 66 ILR, 270. Also, Mannington Mills v. Congoleum Corporation, 595 F.2d 1287 (1979); 66 ILR, 487.
- 41.
The Third Restatement constitutes a comprehensive revision of the earlier (1965) Restatement, covering many more subjects, and reflecting important developments in the intervening decades. This Restatement consists of international law as it applies to the United States, and domestic law that has substantial impact on the foreign relations of the United States or has other important international consequences.
- 42.
731 F.2d 909 (1984).
- 43.
Comity, at law, refers to legal reciprocity where one jurisdiction will extend certain courtesies to other nations, particularly by recognizing the validity and effect of their executive, legislative and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another country. It is especially important in the application of principles of public international law. Part of the presumption of comity is that other nations will reciprocate the courtesy shown to them.
- 44.
Hartford Fiore Insurance Company v. California, 113 S. Ct. 2891 (1993) per Souter J.
- 45.
The most common instance of blocking legislation concerns the prevention of private information being demanded and obtained from nationals of a State by another State. Several countries have enacted so-called “blocking legislation.” Blocking legislation mandates the confidentiality of information and documents and attempts to block foreign efforts to obtain evidence from residents of the enacting jurisdiction. It is often enacted by countries seeking to foster banking and financial industries, such as Switzerland, the Bahamas, Panama and Vanuatu. It generally prohibits residents of those countries and corporations doing business there disclosing confidential business information about others doing business there.
- 46.
PCIJ Series A/B, No. 53, at pp. 53ff.
- 47.
- 48.
The Economist, 8th October 2011.
- 49.
Article 2 of the UN Charter in 2.1 states that the United Nations is based on the sovereign equality of all its Members. Article 1 of the Charter gives the purposes of the United Nations as:
-
1.
To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
-
2.
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
-
3.
To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
-
4.
To be a centre for harmonizing the actions of nations in the attainment of these common ends.
-
1.
- 50.
A similar definition is found in the United States Federal Regulations. See 14 C.F.R. S. 99.3 (2009). The United States has four ADIZs: The Contiguous US ADIZ; Alaska ADIZ; Guam ADIZ; and Hawai ADIZ. In the United States, ADIZ applies only to commercial aircraft intending to enter United States airspace. The United States does not recognize the right of a coastal nation to apply its ADIZ procedures to foreign aircraft not intending to enter national airspace nor does the United States apply its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace. Accordingly, U.S. military aircraft not intending to enter national airspace should not identify themselves or otherwise comply with ADIZ procedures established by other nations, unless the United States has specifically agreed to do so. See U.S. Navy’s Commander's Handbook on the Law of Naval Operations. Also see Williams (2007) at 95–96.
- 51.
States may delegate such responsibility to another State or States without abdicating their sovereignty. See Annex 11 to the Chicago Convention (Air Traffic Services) which provides that Flight information service is provided to aircraft operating in controlled airspace and to others known to the air traffic services units. The information includes significant meteorological (SIGMET) information, changes in the serviceability of navigation aids and in the condition of aerodromes and associated facilities and any other information likely to affect safety. Flights operated by Instrument Flight Rules (IFR) receive, in addition, information on weather conditions at departure, destination and alternate aerodromes, collision hazards to aircraft operating outside of control areas and control zones and, for flight over water, available information on surface vessels. Flights operated by Visual Flight Rules (VFR) receive information on weather conditions which would make visual flight impractical. Annex 11 also contains specifications for operational flight information service (OFIS) broadcasts, including automated terminal information service (ATIS) broadcasts. See Franklin (2007) at 426.
- 52.
See Petras (2010) at 62–63.
- 53.
See McDougal et al. (1963), at 306–311 where the author suggests that if for security reasons States have certain claims on those who enter their sovereign territories, such claims may not be inconsistent with the principles of international law.
- 54.
See Dutton (2009) at 691.
- 55.
Ibid.
- 56.
Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea with Indexes and Annex, Final Act of the Third United Nations Conference on the Law of the Sea, United Nations: 1983.
- 57.
See Posner and Sykes (2010) at 577.
- 58.
In the United States context, see Restatement 3d, Foreign Relations Law, American Law Institute, at S. 521. The Restatement is persRPASive law in the United States. See Cardozo (1924) at 9.
- 59.
The precautionary principle (a moral and political concept) states that if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action. The precautionary principle is most often applied in the context of the impact of human actions on the environment and human health where the consequences of actions may be unpredictable.
- 60.
For a discussion of the emergence of the precautionary principle see Scott Lafranchi, Surveying the Precautionary Principle’ Ongoing Global Development 32 B.C. ENVTL. AFF. L. REV. 2005 at 678.
- 61.
Marr (2003) at 3.
- 62.
Id. at 6.
- 63.
Preemption—A Sword that Cuts Both Ways, Norton: New York, 2006, at 11.
- 64.
Preemption is when an act, which is potentially harmful to a State and is imminent, is effectively precluded by military or other action.
- 65.
Prevention is when an act, which is potentially harmful to a State and is inevitable, is effectively precluded by military or other action.
- 66.
Schmitt (1988) at 5.
- 67.
Liversidge v. Anderson [1942] A.C. 206 at 244.
- 68.
The Bush Doctrine is attributed to the modern notion of preventive war and the justification that the United States had the right to secure itself against countries that harbor or give aid to terrorist groups, which was used to justify the 2001invasion of Afghanistan.
- 69.
Article 2.4 provides: “All members of the United Nations must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. See Charter of the United Nations and Statute of the International Court of Justice, United Nations: New York.
- 70.
Hamdi v. Rumsfeld, 542 US 5047 (2004).
- 71.
Rehnquist (1998) at 5.
- 72.
R. v. Halliday, [1917] A.C. at 292.
- 73.
Preamble supra note 1.
- 74.
Preamble to the Chicago Convention, Id.
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Abeyratne, R. (2014). Article 1 Sovereignty. In: Convention on International Civil Aviation. Springer, Cham. https://doi.org/10.1007/978-3-319-00068-8_2
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