ABSTRACT
However, in the absence of an agreement, in 1911 the British declared de facto their sovereignty over the airspace above their country. Other European countries quickly followed suit. After the First World War, the Peace Conference of 1919 tried to complete the work begun in 1910.4 Although the resulting Paris Convention did not define the term “airspace”, it declared in Article 1 that a subjacent State had complete and exclusive sovereignty in the airspace above it. In the end the US and Russia failed to ratify the Paris Convention. With two world powers missing, the impact of the Convention was rather limited. Following the end of the Second World War,5 at a time when aviation was turning itself into a commercial activity, governments decided to rethink the “Paris principle” in Chicago. Although President Roosevelt called for an open sky that could be exploited for the good of mankind,6 the British (rightly?) feared that the American aviation structure and fleet, and its large manufacturing capacity which had remained undamaged during the war, would end up dominating Europe which was left behind in a ravaged state.7 Despite American efforts to make airspace free, the governments present at Chicago8 decided to take the “Paris principle” up again: the airspace above the soil belongs to and will be controlled by the country owning the soil. The final acceptance of the principle that the territory is three-dimensional and that the airspace above national lands and waters is part of the territory of the subjacent State, entailed the application of all the absolute and exclusive powers that historically had been attributed to Sovereign States with regard to the use of their national land. This can be seen as a first major step to legitimizing governmental intervention, a step which was never undone. But this means that commercial aviation now became a very cumbersome exercise with traffic rights forming part of the natural resources of governments and those governments wanting, of course, their own nationals to benefit from the commercialization of these resources.9
