ABSTRACT
Article 1 of the Chicago Convention asserted the principle that ‘every state has complete and exclusive sovereignty over the airspace above its territory’ and by the terms of Art 2 such territory will include both ‘the land areas and the territorial waters adjacent thereto’. The scope of the Convention is restricted by Art 3 to civil aircraft and so does not extend to state aircraft such as military, customs and police aircraft. The emphasis on state sovereignty is reinforced in Art 6, which provides that no scheduled international air service may be operated over or into a contracting state, except with the special permission or authorisation of that state. However, this provision has to be read with Art 5 which stipulates that:
The exclusion of scheduled air services from Art 511 has meant that individual agreements have had to be created to provide the basic structure in which international scheduled flights can operate.12 The interpretation of Arts 5 and 6 has depended on the definition to be accorded to the phrase ‘scheduled international air service’. Although in 1952 the ICAO Council placed a narrow meaning on the expression which would have made Art 5 the governing rule and Art 6 the exception, this has not been accepted by state parties many of whom control national airlines. The practice has been to make Art 6 the general rule and Art 5 the exception restricted to private flight; so that permission is required for charter flights even though, on the plain wording, they may be considered outside the terms of Art 6. After 1944, the number of states increased considerably and many newly independent states spent large sums sustaining the operations of a national airline; in such circumstances they were not anxious to expose designated national carrier to further competition.
