Legal regulation of flights over the territory of the state and in international airspace
International flights over the territory of the state. The regime of international flights over the territory of the state is regulated by the Chicago Convention on International Civil Aviation (ICAO) of 1944 and national air legislation. State sovereignty over airspace is limited by the airspace of that state and cannot go beyond its borders. The basis for the admission of a foreign aircraft to the territory of another state is an international agreement or the permission of the competent authorities of the state .
International flights carried out in connection with the use of state airspace are divided into two categories, regular and non-regular. Regular flights are carried out by specially designated state airlines on air routes in accordance with international agreements.
In 1952, the ICAO Council defined the official concept of regular flights. Such flights are: flights operated by the airspace of at least one state for the purpose of carrying passengers, mail and cargo for a fee, all flights are open in accordance with the published schedule for public use, characterized by regularity and regularity of flights understood .
Non-scheduled flights are flights that do not meet the conditions applicable to regular flights. These flights are carried out for various purposes. For example; transportation of passengers, mail and cargo, implementation of scientific research, search of natural resources, etc. The main purpose of non-scheduled flights is transportation. In modern times, irregular charter flights are widespread .
Pursuant to Article 5 of the 1944 Chicago Convention, aircraft of States Parties have the right to fly over the territory of other States Parties or to fly without landing on their territory, without the prior consent of the States Parties. The Chicago Convention generally provides for the freedom of flight for States Parties from the airspace of other States Parties by special agreement. In this sense, international agreements act as a form of special permits for international flights .
The permit procedure for non-scheduled flights is usually implemented in a simplified form in the form of a dispatcher permit. In 1956, the Paris Agreement on commercial rules for non-scheduled flights in Europe was adopted, which established a special regime for non-scheduled flights: a simplified procedure for obtaining a permit .
The 1944 Chicago Convention establishes general rules of law applicable to international flights over state territory: the admission of foreign aircraft into the airspace of other states, the flight of aircraft beyond the territorial boundaries of foreign states, the rules and conditions of navigation of aircraft, etc. International Air Law does not have a single set of rules for flights to foreign countries. This rule is governed by national law, subject to Article 11 of the Chicago Convention. A foreign aircraft in the airspace of a foreign state shall be subject to the jurisdiction of that state in the form of customs, currency and quarantine control. According to Article 26 of the 1944 Convention, if an aircraft crashes, the State of the aircraft is obliged to assist it and has the right to investigate the circumstances that led to the accident .
Unauthorized flight into the territory of a foreign state (except in some cases) is a violation of the state air border, and this fact creates criminal, administrative and disciplinary liability of the aircraft crew (commander), international legal responsibility of the state of registration of the aircraft. The 1984 Addendum to Article 3 of the Chicago Convention states that when a state detects a foreign aircraft violating its airspace, it must act in such a way that the lives of passengers and crew and the safety of the vessel itself are not endangered. The consent of the State granting the right to carry out an international flight to a foreign aircraft over the territory of the State may not be taken as free movement of that aircraft. According to Article 12 of the Chicago Convention, foreign aircraft must comply with the state’s domestic rules regarding flight rules. Thus, taking into account the requirements of Article 16 of the Convention and national air legislation, the state has the right to land a foreign aircraft flying in its airspace for the purpose of inspection.
In accordance with the requirements of the 1944 Chicago Convention, any State may unilaterally prohibit the flight of foreign aircraft carrying military ammunition and materials, or any other material, over its territory without discrimination, in cases of military necessity and public safety may completely ban flights over certain areas of the territory. Based on the 1992 Strasbourg Agreement, an open-air concept was developed within the OSCE. This concept provides for the possibility of unarmed aircraft flying over the territory of other states to observe their military activities on the basis of mutual and equal understanding. The main meaning of the concept of open skies is to strengthen trust between states in the implementation of commitments on disarmament and arms control.
Rules of flights in international airspace. International Airspace (ICA) is the open sea, exclusive economic zone (SEZ), international straits, archipelago waters and airspace over Antarctica. The principle of freedom of the high seas presupposes the existence of the principle of open space over these territories. The principle of freedom of flight is enshrined in the 1958 Geneva Convention on the High Seas (Article 2) and the 1982 UN Convention on the Law of the Sea (Article 87).
According to this principle, all states have the right to operate free flights over the high seas without any permission. However, the state does not have the right to claim its sovereign rights over the ICA. The state has an advantage over an aircraft that flies BHM and is under its jurisdiction and registration. It is inadmissible for another state to impose its authority on an aircraft, and such an act may be construed as interference with the flight of the aircraft. ICA freedom of flight also imposes certain obligations on the state: the state has an obligation not to allow its aircraft to endanger the safety of maritime navigation and flights of aircraft of other states. To this end, states enter into agreements to prevent incidents on the high seas and in the airspace above them (for example, imitation of aircraft with the use of weapons, ill-considered maneuvers, etc.) [4, p. 122].
Each aircraft must have national and registration plates when it comes to international air navigation. An aircraft is considered to belong to the state in which it is registered. It is these insignia that raise the issue of state responsibility for the operation of the aircraft.
International air law allows states to control a certain area of airspace on the high seas in order to ensure the safety of flights and aeronautics from the open sea to the territory of the state. However, this possibility cannot be understood as the extension of the state’s jurisdiction and sovereignty to those territories. Based on this opportunity, a number of countries, such as the United States in the direction of the Atlantic and Pacific, Canada, South Korea and other States have established security or recognition zones that are required to be performed by foreign aircraft during flights. For example, an aircraft bound for the United States by sea must notify the United States Authority of its location, direction, and flight plan during a flight in the security zone [4, p. 180].
The regulation of offshore flight regimes is the responsibility of ICAO. Unified flight technical standards have been developed within this Organization. These rules, included in the 1944 Chicago Convention as Annex 2 under the heading «Flight Rules», established a mandatory obligation for all states to fly over the high seas. More precisely, these norms are valid in the open air without any exceptions. The establishment of a single mode of international flights on the high seas was born out of the need to ensure flight safety.
In the service of international flights on the high seas, in particular, in order to provide air navigation control and flight information, ICAO has established criteria such as: advisory airspace, controlled airspace, danger zone, restricted flight zone.
— Flight information and, where possible, dispatching services are provided to the aircraft in the advisable airspace over the open sea in order to carry out optimal flights in the relevant flight area (for example, significant distance from the coastline, etc.). The coastal state is not responsible for the safety of such flights.
— Controlled airspace is an area of the high seas within which air traffic control is provided by a dispatch service, and the coastal state providing this service is directly responsible for the safety of international flights. In the controlled airspace, air routes and controlled aerodrome zones with a width of 10-15 miles are defined.
— The danger zone is an open sea area within which there may be regular threats to aircraft flights (for example, within the Bermuda Triangle).
— A restricted flight zone is an airspace over the high seas in which flights are temporarily restricted (for example, during the testing of intercontinental ballistic missiles, etc.) [4, p. 225].
When regulating international flights over the high seas, ICAO identifies economically viable international air routes and international airports. ICAO has specific air navigation plans for individual regions: Africa / Indian Ocean, East Asia / Mediterranean, North Atlantic / North America / Pacific, Caribbean / North America, Europe / Mediterranean. The regulation of flights over the international straits differs in its specificity. If the strait does not cross the territorial waters of the coastal states, then its regime is subject to the rules in force in relation to the high seas. If it crosses, the aircraft enjoys the right of transit flight. The legal regime of the straits that connect the open sea with the closed sea and have a way out of them (for example, the Black Sea, the Baltic) is regulated by special international conventions.
Reference and Sources:
- The History of ICAO and the Chicago Convention — https://www.icao.int/about-icao/History/Pages/default.aspx
- Convention on International Civil Aviation (Doc 7300) — https://www.icao.int/publications/pages/doc7300.aspx
- The Paris Agreement on commercial rules for non-scheduled flights in Europe (1956) — https://www.icao.int/secretariat/legal/List%20of%20Parties/EURcom56_EN.pdf
- Brian F. Havel «The Principles and Practice of International Aviation Law» / Cambridge University Press March 31, 2014, p. 462.
Graduated from Baku State University,
Faculty of Law (SABAH group) Kamran Khalilov
Bakı Dövlət Universiteti Hüquq fakültəsi
(SABAH qrupu) məzunu Kamran Xəlilov