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

By Prasert Pompongsuk

Originally Published in Law Journal On June, 2002

I. Non-Scheduled Flights
In this part. Article 5 of the Chicago Convention as a source of the 'non-scheduled' transit rights will be analyzed in detail. Due to the universal acceptance of the Convention, this provision leaves no place for bilateral agreements except for a diplomatic purpose.

1.1 Multilateralism: Article 5 of the Chicago Convention
if air transit rights are not accepted ubiquitously, even a layperson can imagine the inefficiency of the air transport system whereby aircraft are forced to fly through a devious route- more time, more money and more risky. In 1944 distinguished delegates from various nations convened in Chicago with a view to exchanging air services rights internationally. The substantive success of the Conference was the multilateral acceptance of the transit rights in relation to' non-scheduled' fiights, (7) as appeared in Article 5 paragraph 1 of the Chicago Convention:

Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engages 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 fligfht, 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.
This provision is analyzed as follows: (8)

A. Subjects and Beneficiaries States are subjects of international law, but aircraft are not.(9) The expression 'aircraft ... shall have the right, ...' does not transform the legal status of aircraft from objects into subjects of international law. Its aim is to specify such objects as beneficiaries of the Chicago Convention which can enjoy the right thereof. The term 'aircraft of the contracting States' means civil aircraft bestowed with nationality of one of the contracting States in accordance with Chapter III of the Chicago Convention. In this respect, aircraft can exercise the right so far as their nationality belongs to one of those States, regardless of who the operator is - be it a foreign owner or lessee.

For example, when Taiwanese airlines want their leased American aircraft to fly over Thailand, Thailand still allows the aircraft to pass through its national airspace because the aircraft nationality belongs to the USA, a party to the Chicago Convention, although it does not recognize Taiwan as a State.

B. Essence of Rights Air transit rights embodied in Article 5 cover 'non-scheduled' International flights only, whether commercial or non-commercial. But this does not mean an impasse tot aircraft engaged In 'scheduled' international air services. If such aircraft are operated for non-scheduled purposes, for example charter flights, maintenance flights or positioning flights, they are always able to enjoy the rights under this provision since at the time the rights are to be exorcised, the aircraft are engaged in non-scheduled flights.

Specifically speaking, there are three rights under Article 5 paragraph 1, namely an overflying right, a technical landing right and a right to land for non-traffic purpose. But this study deals only with the first two rights which are transit rights in the air.

Aircraft shall make a flight for the exclusive purpose of transit, not for exploring natural resources or map-making in which such a flight typically flies across the border back and forth. For instance, in surveying the river Mekong, the Thai aircraft unavoidably enters the Laotian airspace many times a flight for technical reasons. This is not a flight that flies Over the Laotian airspace just in transit; therefore, the aircraft need a special permission. (10)

C. Scope of Rights The rights in question merely encompass the airspace above the territorial land and waters under the sovereignty, suzerainty, protection or mandate of the contracting States.(11) Thus, air transit rights vis-a-vis airspace above the contiguous zone or the exclusive economic zone for example, are expressed in the United Nations Convention on the Law of the Sea.(12)

D. Operating Permission The terms of Article 5 of the Chicago Convention clearly stipulate that aircraft are able to enjoy air transit rights 'without the necessity of obtaining prior permission.' To affirm this obligation. ICAO explains to the contracting State that"[i]ndeed, no instrument designated a 'permit' should normally be required, even if it were automatically forthcoming upon application." (13) However, for safety reasons, the Overflown State may require aircraft desiring to proceed over regions inaccessible or short of air navigation facilities, to obtain special permission. In all cases, filing a flight plan in advance remains necessary for the purposes of air traffic control, public health or other similar purposes. (14)

E. Compliance with the Chicago Convention The prerequisite of the enjoyment of air transit rights is the fact that aircraft must abide by the Chicago Convent. Any infraction of the Convention will affect such an aircraft during the period of infraction only. States cannot ban aircraft from passing through their airspace on the grounds that there is '[a] failure to observe some provisions of the Convention by these aircraft at other time, or by other aircraft of the same nationality, or by the government of these aircraft.' (15)

F. Duty to land upon ordered The Overflown State has the unconditional right to order any aircraft overflying its territory to land at a designated airport. Nonetheless, the right should be interpreted bona fide in order not to eliminate air transit rights in general.

G. Prescribed Routes Article 68 of the Chicago Convention, in which the Overflown State may specify routes within its territory for 'scheduled' flights to follow, is by no means applied to 'non-scheduled' flights. However for safety reasons, the overflown State may prescribe routes in cases, where aircraft proceed over regions inaccessible or short of air navigation facilities.(16)

1.2 Bllateralism: A Superfluous Clause
In the did days, States, non-parties to the Chicago Convention, needed to exchange transit rights with respect to 'non-scheduled' flights on a nation-to-nation basis. Some States, albeit being parties to the Convention, recapitulated those rights In their bilateral agreements on air services, exemplified by the agreement between the United Kingdom and Switzerland:

These Privileges shall be additional to the rights, enjoyed by the aircraft of each country. of making transit flights and stops for non-traffic purposes in the territories of the other country without the necessity of obtaining prior permission, as provided for in Article 5 of the Convention on International Civil Aviation, concluded at Chicago on December 7, 1944.(17)

Almost all the States from every comer of the world nowadays are parties to the Chicago Convention, (18) rendering such a bilateral approach redundant. However, diplomatic

Part 3

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(7) See D,RN. Johnson. Rights in Air Space (Manchester: Manchester University Press, 1965) a 62.

(8) See Analysis of the Rights Conferred by Article 5of the Convention, ICAO Doc. 7278-C941(10 Mlay 1952); Doc. 7278/2nd ed.. 1985; ICAO Doc. 9587 (1st ed., 1992). at 10-12.

(9) See B. Cheng, Introduction to Subjects of International Law in M. Bedjaoui (ed.) International Law: Achievements and Prospects (Paris: UNESCO, 1991) 23 at 29.

(10) Compare a letter from Departmant or Economics Affairs, No. ¡µ 0502/Í. 101397. Laos Hunt oil Company, exploring for oil in the south of Laos, asked for permission for an airplane to make short turn-around overflights over Thai territory when changing from one 'line' to another.

(11) The Chicago Convention, supra note 4, Ankle 2.

(12) See supra note 1.

(13)See supra note 8 at 12.

(14) Lbid; sea also Annex 2: Rules of the Air. 9th ed. (1990), Specification 3.3.

(15) Supra note 8 at 11-12.

(16)The Chicago Convention, supra note 4, Article 5.

(17) Quoted from Cheng, supra note 5 at 200.

(18) Liechtenstein. for example, is not a party to the Chicago Convention, but there is no problem concerning air transit rights because its aircraft are registered in Switzerland, imprinted with Swiss nationality and entitled the rights as Swiss aircraft. See "Status of Certain International Air Law Instruments'" (1997) 52:8 ICAO J.23-26.