Transit Rights over Territorial Airspace - Reflections on the Practice of Thailand

By Prasert Pompongsuk*

Originally Published in Law Journal On June, 2002

INTRODUCTION

Transit rights in ale air are a sine qua non for any aircraft or airline wishing to fly internationally. One should not overlook such a right because without it, there is no International air transport at all. Transit rights guarantee not only the commercial rights of airlines, but also the rights of prople of whichever nationality to travel around the globe.

Unquestionably, the most known 'transit right' is the so-called 'innocent passage' according to which, under customary international law, each State shall not prevent foreign ships from navigating continuously and expeditiously through he territorial waters.(1) But the regime of air law is completely different. No State has ever accepted the practice that foreign aircraft shall enjoy the right to fly over its territory, although some jurists, particularly in the early period of aviation, supported the freedom of the air.(2)

The main objection to such a practice is the fact that aircraft would enter airspace above the territorial land.(3) an area where national security is of the utmost importance. The phenomenon of aspects of the use of aircraft. As a result, the post-world-war treaties-the 1919 Paris Convention and the 1944 Chicago Convention - recognize the following principle of customary international law: 'every State has complete and exclusive sovereignty over the airspace above its territory.' (4) This presents the absence of 'innocent passage' in the air, showing that aircraft of one State overflown. Such consent might be in the form of unilateral authorizations, bilateral agreements or multilateral conventions.

Since negotiating air transit rights on a nation-to-nation basis may entangle international air transport in deliberate, inconvenient and unrealistic procedures, the international community attempted to exchange such a right multilaterally. With the separation of air navigation into two categories, that is, 'scheduled flights' and 'non scheduled flights', the exchange in question accordingly in two regimes. Whereas The Air Transit Agreement deals with the transit rights of the former, the Chicago Convention governs the transit rights of the latter. However, in the case of the Air Transit Agreement to which many States have yet to adhere, bilateral agreements remain necessary.

On reading the Chicago Convention in tandem with the Thai Air Navigation Act, one may discover that foreign aircraft engaged in 'non-scheduled' flights are permitted to fly over Thailand without the necessity of obtaining permission. Unfortunately, the Thai authorities construe the law so that foreign aircraft, even when engaged in humanitarian flights cannot make transit flights across the Kingdom unless they receive permission from the Minister of Transport and Communications. This interpretation contradicts not only the letter of the law itself, but the 'aviation hub' policy of Thailand as well. However, for 'scheduled' flights, the norm is that airlines shah obtain in advance operating permission from the authorities concerned in order for them to exercise 'scheduled' transit rights.

Basic Terms
Transit Rights: The right of aircraft of one State to fly over or to make a technical stop in other States, usually known as the first freedom and the second freedom respectively.(5)

Civil Aircraft: Civil aircraft mean aircraft not 'used in police, military or custom.'(6) In this essay, the term 'aircraft' refers to 'civil aircraft' only.

For the sake of analysis, the table of comparison is demonstrated below.

Differences & Similarities	INTERNATIONAL AIR TRANSIT
	'Non-Scheduled'	'Scheduled'
Sources of Rights	The Chicago Convention	The Air Transit Agreement	Bilateral agreements
Beneficlaries	'Aircraft'	'Airlines'	'Designated Airline(s)' But few agreements may permit 'Airlines' generally.
Leasing Of Aircraft	Whosoever the operator is.	Whomsoever the aircraft belong to.	Depends on agreements.
Types Of Aircraft	Any type.	Any type.	Types sometimes specified.
Routes	Within its territory, States cannot specify routes except for areas, inadmissible or lack of air navigation facilities.	States are entitled to specify routes within their territories.	States Parties often specify routes in Annexes attached to their agreements.
Order to Land	The Overflown State may require the overflying aircraft to land at designated airports within its territory.	Not mentioned.	Never mentioned.
Number Of Flights	Unlimited	Unlimited.	Often unlimited, but a few States limit the number of flights.
Operating Permission	Not required, whether interpreted literally or spirtually. But several Sates still require it.	Required.	Required, unless otherwise specified.

Part 2

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* Air Transport Officer, Air Transport Control Division, Department of Aviation; This paper is written in a personal capacity and does not necessarily reflect the viewpoints of the author's office. The author would like to express his gratitude to Ms.Audrey Aitken for proofreading the manuscript.

(1) United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, (1982) 21 I.L.M. 1261, Section 3 Articles 17-26; see generally S. sucharitkil, "Thailand's Positions in the Light of the New Law of the Sea" in The United Nations Convention on the Law of the Sea in Southeast Asia: Problems of Implementation, (Bangkok: SEAPOL, 1991) at 12-16

(2) For example E. Ortolon in 1871 and P. Fauchille in 1901. See J.C. Cooper, "Backgrounds of International Public Air Law" (1965) Y.B.Air & Sp. L. 3 at 10. Even now, attempts have been made to bestow the overflight right on space objects, especially in the upper airspace by which the objects would pass in order to reach outer space. See Working Paper, presented by the USSR delegation before the COPUOS on 20 June 1979, excerpted in U. Leanza, ed., The Future of International Telecommunications (New York: Oceana Publications, INC, 1993) at 97.

(3) See P. Haanappel, "The Transformation of Sovereignty in the Air" (1995) 20:6 Air & Sp. L. 311 at 315 n.20.

(4) Convention on International Civil Aviation, signed at Chicago, on 7 December 1944. ICAO Doc. 7300/6 (1980) Article 1 [hereinafter Chicago Convention].

(5) See me excellent explanation on eight freedoms of the air in B. Cheng, The Law of lnremational Air Transport, 3rd Impression (London: Stevens & Sons Limited, 1984) at 8-17. However, at present, there are nine freedoms of the air recognized by ICAO. See Manual on the Regulation of International Air Transport, 1st ed. (1996) at 4.1-54.1-10.

(6) See generally Secretariat Study on "Civil / Stale Aircraft" Attachment 1 to Lc12 9-WP2-1.