1

From Platonism to Neoplatonism Springer Netherlands Dr. Iur., Dr. Phil. (Vienna) Philip Merlan (auth.) Год: 1953 Язык: english Файл: PDF, 7.50 MB Ваши теги: 0 / 0

2

Coleopterorum Catalogus: Auspiciis et auxilio Springer Netherlands W. Junk, S. Schenkling (auth.) Год: 1932 Язык: english Файл: PDF, 1.83 MB Ваши теги: 0 / 0

POST-WAR INTERNATIONAL
CIVIL AVIATION POLICY AND THE
LAW OF THE AIR

POST-WAR INTERNATIONAL
CIVIL AVIATION POLICY AND THE
LAW OF THE AIR
by

H. A. WASSENBERGH

Springer-Science+Business Media, B.Y.
1957

ISBN 978-94-017-5707-2
ISBN 978-94-017-6044-7 (eBook)
DOI 10.1007/978-94-017-6044-7

Copyright I957 by Springer Science+Business Media Dordrecht
All rights reserved, including the right to translate or to
reproduce this book or parts thereot in any form
Originally published by Martinus Nijhoff in 1957.
Softcover reprint of the hardcover 1st edition 1957

To the memory

0/

ALBERT PLESMAN

FOREWORD

Civil A viation has become a public utility
serV1-ce.
SALVATORE TOMASINO 1)

Although civil aviation has enjoyed unflagging publie interest
since its birth in 1919, and even before that date, the factors
governing the development of civil aviation are nevertheless not
widely known. This applies not so much to technical development
as to the politieal and economie considerations whieh ultimately
determine the pattern of the worldwide network of air routes.
Whereas, prior to World War II, civil aviation was regarded
mainly as an instrument for political penetration, with perhaps
the Netherlands and its K.L.M.2) as a striking exception, since
1945 civil aviation has come to be judged more on its own merits,
though it has remained primarily a government matter. The
politieal, strategie, economic, financial and social aspects of civil
aviation together constitute a field which, particularly since
World War II, has come to form the subject-matter of a more or
less independent branch of foreign policy, designated by the term
"international civil aviation policy".
In spite of the dominating factors of national prestige and later
of economie nationalism, States have nevertheless directly and
indirect1y taken upon themselves a number of obligations in the
international field, thereby giving civil aviation an international
legal basis.
An attempt will be made below to throw some light on the
problems that ari; se in the field of force between politics and law in
connection with the regulation of civil aviation throughout the
1) During the 14th Congress of the International Chamber of Commerce, Vienna,
21st May 1953; cl. L'Economie Internationate, No. 6-7, ]unel]uly 1953, Vol. XIX,
p. 39. See p. 164, below.
I) CI. O. J. Lissitzyn, International Air Transport and National Poliey, New
York 1942, pp. 409 and 55.

VIII

FOREWORD

world, in the hope that this will contribute towards a reconciliation of the many current conflicting tendencies in the interests of
the ideal of "freedom of the air", freedom of air transportation
and a united world, mindful of the words of the late Albert Plesman, the former President of the K.L.M.: "The air unites all
peoples."
Scheveningen, 3Ist December I956

LIST OF ABBREVIATIONS
AGM
ARB
CAB
CATE
ECAC
IATA
ICAO
ICC
ILA
ITA
MTCA
NJB
OEEC
PICAO
RGA
Airlines
ALITALIA
AVENSA
BEA
BOAC
DLH
KLM

Annual General Meeting
Air Research Bureau (Brussels)
Civil Aeronautics Board (V.S.)
Conference on the Coordination of Air Transport in
Europe (1954)
European Civil Aviation Conference
International Air Transport Association (Montreal)
International Civil Aviation Organization (Montreal)
International Chamber of Commerce (Paris)
International Law Association
Institut du Transport Aerien (Paris)
Ministry of Transport and Civil Aviation (V.K.)
Nederlands J uristenblad
Organization for European Economic Cooperation
Provisional International Civil Aviation Organization
Revue Generale de l' Air (France)

Aerolinee Italiane Internazionali
Aerovias Venezolanas S.A.
British European Airways Corporation
British Overseas Airways Corporation
Deutsche Lufthansa Aktien Gesellschaft
KLM Royal Dutch Airlines - Koninklijke Luchtvaartmaatschappij N.V.
LACSA
Lineas Aereas Costarricences S.A.
PAA
Pan American World Airways Inc.
SABENA Societe Anonyme BeIge d'Exploitation de la Navigation Aerienne
SAS
Scandinavian Airlines System
SWISSAIR Swiss Air Transport Company Ltd.

CONTENTS

Foreword

VII

List 01 abbreviations

IX

PART I
POST-WAR INTERNATIONAL CIVIL AVIATION POLICY
I. THE BASIS OF POST-WAR CIVIL AVIATION POLICY

3

II. TRENDS IN AVIATION POLICY IN 1944 AND SINCE

11

IH. PROBLEMS IN THE FIELD OF AVIATION POLICY

21

IV. MEANS OF AVIATION POLICY

29

A. Types of Air Service
B. Multilateral Convention
C. Capacity
D. The Bermuda Principles
E. Bilateral Aviation Agreements
F. Cabotage - Grand Cabotage - 6th Freedom
V. INTEGRATION OF AVIATION

30
40
46
53
61
69
75

PART 11
THE LAW OF THE AIR
VI. INTERNATIONAL LEGAL NORMS WITH RESPECT TO
CIVIL AVIATION

99

A. Sovereignty in Airspace
B. The Right of Innocent Passage
C. The Right to Air Transportation
D. The Right to Exploit the Aerial Highway

100
107
109
114

CONTENTS

XII

E. The Norms with respect to Non-scheduled Air
Transportation
F. The Norms with respect to the Various Kinds
of Traffic
VII. THE MERITS OF TRENDS IN AVIATION POLICY
VIII. A NEW BASIS FOR INTERNATIONAL AVIATION POLICY?
IX. FUTURE PROSPECTS
X. THE POSITION OF THE NETHERLANDS

117
119
124
132

149
158

Annex Relevant Articles of the CONVENTION ON INTERNATIONAL CIVIL AVIATION

Index

166
175

PART I

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

La vitesse a provoque la dejense sous forme de l'obstacle

A.

SIEGFRIED

CHAPTER I

THE BASIS OF POST-WAR CIVIL AVIATION POLICY 1)
As we begin to write a new chapter in the
lundamentallaw 01 the air, let us all remember
that we are engaged in a great attempt to build
enduring institutions 01 peace. These peace
settlements cannot be endangered by petty considerations or weakened by groundless lears.
Rather, with lull recognition 01 the sovereignty
and juridical equality 01 all nations, let us
work together so that the air may be used by
humanity, to serve humanity.
F. D. ROOSEVELT, Message to the Civil
Aviation Conference, Chicago, 1944 2)
Whereas in 1919, the year in which international civil aviation
was born 3), a distance of only 1,025,000 miles was flown by civil
aircraft throughout the world (with the exception of China and
Russia) and 3,500 revenue passengers were carried, some thirty
years later, in 1950, the corresponding figures for scheduled services were 890,000,000 miles and 31,200,000 passengers. In 1951,
976,000,000 miles were flown and 39,900,000 passengers carried.
In 1952 the corresponding figures were 1,059,000,000 miles and
45,000,000 passengers. In 1953, 52,400,000 passengers were carried, in 195459,000,000 passengers, and in 1955, 1,407,000,000
miles were flown and 69,000,000 passengers carried 4).
The fact that civil aviation shows a large and steady annual
growth is not surprising for a new industry which is still relatively
young.
1) See also Wolf Loah (Hamburg), "Die Völkerrechtlichen Grundlagen des Internationalen Luftverkehrs", I nt. A reh. I. Verkehrswesen, 1952, No. 12, p. 269 ff.
3) Proeeedings 01 the International Civil Aviatian Canlerenee, Chicago 1944, Vol. 1,
U.S. Dept. of State, p. 43 (herein after referred to as ap. eit.).
3) See also p. 28 note 1, on the International Conference for Air Navigation of
1910 and the VersaiJles Peace Conference in 1919.
4) See ICAO Doc. 7636 A10-Pj3 June-July 1956.

4

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

What is significant, however, is the rate of annual growth,
which can be illustrated by the following figures :
In terms of passenger-kilometres, world traffic increased
in
in
in
in
in

1951 by 26.0% over
1952 by 14.8% over
1953 by 17.7% over
1954 by 12.9% over
1955 by 18.1 % over

1950
1951
1952
1953
1954.

The increase since 1950 is 127%.
Such an enormous growth and the justified expectations of a
further rapid expansion in the future, when the travel time has
been reduced by 50% and 3rd dass fares have been introduced, have made and still make it necessary to lay down
international regulations for the ever-increasing stream of
passengers, goods and mail which are carried by air.
It is questionable, however, whether these regulations must
necessarily also become ever more numerous and detailed. Regulations are, by their nature, more often an impediment than an
incentive to rapid and natural growth, and yet they are frequently indispensable to orderly development. Accordingly, an international convention for dvil aviation has been in existence since
as long ago as 13th October, 1919 1). Later, there came the Conventions of Madrid and Havana in 1926 and 1928, respectively 2).
The value of these Conventions now lies mainly in the past, however. They have been superseded by what has become the basis
of international dvil aviation since World War II, namely the
Chicago Convention of 1944.
Many divergent views have gained currency, or have attempted
to do so, over the years.
In broad outline, whereas formerly the prestige and security
of the State were the primary consideration, with the increase in
air traffic the economic and commerdal aspects also acquired a
considerable influence, and at the same time the number of regu1) Paris Convention, 13th Oct., 1919, relating to the Regulation of Aerial Navigation ("Cina").
2) Habana Convention, 20th Feb., 1928, on Commercial Aviation (Pan-American
Convention on Commercial Aviation); Ibero-American Convention, signed at Madrid
on 1st November, 1926 ("Ciana"). (For these conventions and the Paris Convention,
see A. Meyer, Freiheit der Luft als Rechtsproblem, Zürich 1944, and L. H. Slotemaker,
Freedom of Passage for International Air Services, Leiden 1932.

THE BASIS OF POST-WAR CIVIL AVIATION POLICY

5

lations increased appreciably: an independent aviation policy was
developing.
Whilst the technical and safety requirements gave rise to few
unbridgeable differences of opinion, the economic and commercial
aspects, on the other hand, became more and more the battleground for conflicting opinions between the various states opinions which were designed first and foremost to promote each
country's own national interests (including the military and
prestige aspects), and which crystallized into a mosaic of strongly
contrasting national aviation policies 1).
It is self-evident that this national bias must have a baneful
influence on such a pre-eminently international and dynamic
activity as civil aviation.
Aviation policy, if it is to have any raison d'etre, must be an
international policy, that is to say, it must above all be aimed at
the natural development of international civil air traffic throughout the world and of the civil aviation industry in general.
Aviation policy, lying as it does within the sphere of politics, is
essentially, quite apart from any struggle for power, the endeavour to put into effect certain principles lying within the sphere
of law. In the background of all political endeavour lie the politician's views on the legal structure advocated by hirn in the field
of policy with which he is concerned. Politics and law are thus
inseparable. A review of aviation policy such as this is therefore
at the same time, and perhaps even in the first place, a review of
air law, of public air law. Law is an essential instrument of politics. The creation and application of law are political functions,
governed by special interests. Although, therefore, there is no
dualism of law and State, a distinction must very definitely be
made between jurisprudence, which takes no account of special
interests and politics. Politics invokes justice, and finally poduces
a juridical enactment, the legal character of which it is the purpose of jurisprudence to test according to ends and means.
As criteria for this test, we will take the various interests that
are served by the rules laid down in the enactment. Without
1) State intervention for economic reasons is attributable to the desire to create an
equilibrium under optimum investment and production conditions, which, it is feIt,
cannot be achieved under free competition. For regulation of competition, cf. also
L. Keyes, Federal Controlo! Entry into Air Transportation, Cambridge (Mass.) 1951,
Ch. I, pp. 5--26.

6

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

wishing to posit a hierarchy of interests, which it would in any
case not be possible to do objectively, and in view of the interrelation of interests in a society, we regard the final balance of the
interests involved - for there can never be a full and absolute promotion of interests - as decisive 1). Thus it may happen that a
certain rule serves the national interest of aState up to a point,
but is at the same time harmful to the international interest, and
thereby in turn ultimately affects the national interest adversely,
so that finally the rule may perhaps prove not to be so justified as
was original1y thought. The interest of the State, like that of the
individual, is, after al1, largely determined by the society in which
it exists. And whilst it is true that this interest is determined subjectively, nevertheless it can only be properly appreciated as such
if all aspects are known and taken into account. Through this
latter process, in which jurisprudence plays apart and has a task
to perform, a reasonable degree of obviousness, objectivity and
authority can he achieved; and this, finally, is aprerequisite for
law. Now law follows the course of events in their evolution; thus
the law of the air has followed tbe coming into being of aviation.
Law adapts itself to a changed situation. This may not be so
readily apparent as regards the principles of law, but there too we
find gradual adaptations. The influence of civil aviation on world
society will first have to be assimilated in full before law will
have entirely adapted itself to this new development. Man, who
makes law, will always be outpaced by events. As regards the law
of the air, however, he will have to try to keep the time-lag as
short as possible, since this is a field in which developments are
proceeding at a remarkable rate. In aviation policy, therefore,
even though existing legal views may be taken as a basis, a watchful eye will have to be kept on developments with which the law
of the air will bave to keep pace.
Reality, policy and law are here closely bound up with each
other. In practice it is difficult, particularly with respect to
aviation, to preserve the proper harmony between them. In what
folIows, therefore, we shall have this harmony constantly in
1) The ultimate interest involved is self-interest, as underlying the acceptance of
any general interest as such, which after all is the principal concern of Iaw. Therefore
we can only base our criterion on the effect in practice of the rules as Iaid down, in
order to determine to what extent the parties concerned are satisfied. See also p. 101
beiow.

THE BASIS OF POST-WAR CIVIL AVIATION POLICY

7

mind; and there is all the more reason for doing so in that technical developments have far outstripped the world's capacity to
assimilate them.
Let us now return to the juridical basis in positive law of postwar aviation policy.
The rule of the complete and exclusive sovereignty of States
with regard to the air-space over their territory is embodied in,
and has developed since the Second World War, on the basis
of, the Chicago Convention of 1944. Of principal concern to us are
the Preamble and Articles 1,2,5,6, 7, 44(d), (e), (f), (g) and (i),
77, 78, 79 and 96 of that Convention 1).
The opportunity left by the text of these articles for different
interpretations, and the freedom which Articles 5 and 6, in
particular, allow to States, form the starting-point for the wide
divergence in practice of the aviation policies of the various
States. Article 1 is rather dogmatic in character and confirms
the power which the States wish to exercise over the air-space.
As such its proper place would have been in the Preamble.
Articles 5 and 6 of the Convention deal with international "nonscheduled" and "scheduled" air services, respectively. A definition of what is to be understood by a "non-scheduled" air service
or a "scheduled" air service is not, however, given in the Convention.
A distinction between the two kinds of air service has been
worked out in practice; quite a good approach to the problem is
the definition of a "scheduled international air service" ultimately formulated in 1952 by the Council of ICAO 2), the International Civil Aviation Organization (of governments) established
by the Chicago Convention:
A scheduled international air service is aseries of flights that
possesses alt 3) the following characteristics:
a. it passes through the air space over the territory of more
than one State·
b. it i~ performed by aircraft for the transport of passengers,
mail or cargo for remuneration, in such a mann er that
each flight is open to use by members of the public;

-----

1) The text of these Articles will be found in the Appendix at the back.
S) ICAO Document C-WP/1123 of 4/3/52. ICAO Doc. 7278-C/841 of 10/5/52.

For comments made by Contracting States: Doc. AIO-WP/21 EC/I of 21/3/56,
and Doc. 7576--C/880 of April 1955.
8) Our i talics.

8

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

c. it is operated, so as to serve traffic between the same two
or more points, either
(i) according to a published time-table, or
(ii) with flights so regular or frequent that they constitute a recognizably systematic series.
This definition, the terms of which are cumulative, is not
binding on States but is merely "for the guidance of Contracting
States in the application of Articles 5 and 6 of the Convention".
Thus British nationallegislation, for example, lays down its own
definition of the expression "scheduled journey" 1):
Scheduled journey, means one of aseries of journeys which
are undertaken between the same two places and which together amount to a systematic service operated in such a
manner that the benefits thereof are available to members
of the public from time to time seeking to take advantage
of it.
The V.S.A. with its Civil Aeronautics Board 2), an organ that
occupies a very special position in the V.S. constitutional
structure and is directly responsible to the President 3), has developed its own system in this respect 4), as it has in many other
fields of international civil aviation. The CAB distinguishes
principally between "common" and "non-common" carriage and
"non-scheduled" and "scheduled" carriers, or between "noncertificated" (irregular) and "certificated" carriers.
Y et other States provide that a "non-scheduled" flight is only
regarded and treated as such if a different route is flown to that
1) S. 24 of the Air Corporations Act, 1949.
2) Established by s. 201 of the Civil Aeronautics Act, 1938. For the policy of the

CAB, see ss. 2, 401(d) and 402(b). Cf. also Erik B. Gasser, Die Staatliche Regulierung
des Wettbewerbs im internationalen Amerikanischen Luftverkehr, Bern 1953, p. 21 ff.
See further p. 35 ff. below.
3) Cf. s. 801 of the Civ. Aer. Act, 1938. (In domestic cases, the CAB is "an arm of
the Congress"). In fact, the CAB merely "advises" the President. In 1956, however,
legislation was introduced to curtail presidential authority to approve international
agreements, which authority would be limited to "foreign air transportation", i.e. to
cases which "he determines may affect the national defense or foreign policy of the
V.S." (International Air Agreements Bill, S. 3914).
') See s. 402 of the Civil Aeronautics Act of 1938 and s. 6(b) of the Air Commerce
Act of 1926 as amended, in conjunction with s. 416 of the Civ. Aer. Act and Parts 207
and 291 of the CAB's Economic Regulations.
The irregular carriers operate under exemption authority. Their operations should
have no semblance of regularity (Cf. V.S. Court of Appeals, Large Irregular Air Carrier Investigation, July 19th, 1956).
See further p. 35 ff., p. 36 note 2.

THE BASIS OF POST-WAR CIVIL AVIATION POLICY

9

followed by the "scheduled" air services of the same company
across their territory (e.g. India, Pakistan, Egypt). Or again, a
flight is only treated as a "non-scheduled" flight if the entire
capacity of the aircraft has been chartered 1) in such a way that
there can be no question of selling the individual seats at the
normal internationally established rates, or at lower rates, to
members of the public (Britain for certain routes, South Africa in
principle, Australia) 2). Isolated flights, not being charter flights,
which follow more or less the normal route of the "scheduled" air
services are, in the first case, assimilated to the latter and are
known as "duplicate flights", "extra scheduled flights" (extrasections), or "additional scheduled flights". In the second case
only "charter flights" 3) are in practice brought under Article 5
of the Chicago Convention 4).
From all this it will be apparent that there cannot (as yet) be
said to be any uniformity in the application of Articles 5 and 6 of
the Convention. And there are, moreover, many ways in which an
international flight can be carried out, for which the mere division
into "non-scheduled" and "scheduled" flights may perhaps appear an over-simplification as regards the attitude of States
towards their operation.
To mention a few further possible ways of operating air services:
contract carriage (e.g. emigration flights), "all-freight services",
special flights. Another mode of operation is an agreement between companies on interchange of aircraft, or the operation of
flights in combination with another foreign company (e.g. in a
pool); or the case of SAS, a consortium of the three national airlines of Denmark, Sweden and Norway; or again, the case in
which a company charters aircraft from a foreign company for
the operation of flights; etc.
1) In the Netherlands regulations regarding non-scheduled flights, the expression
"charter flights" is understood to mean "flights whereby the aircraft in her entirety
is leased to a person, an enterprise or any other body". For the V.S. definition of
"charter" see s. 207.1., CAB Economic Regulations.
B) Cf. also p. 10, note 1.
3) Cf. IATA resolution 045, Manual of T.C. Resolutions, of the International Air
Transport Association of airlines flying scheduled international services.
4) See also Doc. CATE-WP/34 of 12/4/54 concerning an analysis of the "nonscheduled regulations" and pp. 92 ff. and 33, note 3, below. Doc. CATE-WP/34 is
an amended issue of Doc. A7-WP/IO-EC/5 of 23/3/53. Cf. in this respect also the
"freedom" accorded under the European multilateral treaty for non-scheduled flights,
pp. 94 ff. below.

10

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

It need only be observed here that in practice the divers forms
in which flights are and may be operated give rise to more widely
differing policies among the various States than if they were
merely based on the distinction between scheduled and nonscheduled flights. It is certain that regular services cannot perform all the tasks of transportation and that "non-regular" aviation forms a valuable supplement without necessarily competing
with the regular services. Separate regulations for non-scheduled
aviation would therefore appear to be entirely justified, provided
guarantees are given against "trespassing in the scheduled service
field" 1).
In December 1955 the European Civil Aviation Conference
reached agreement on a draft multilateral treaty for non-scheduled
flights in Europe, and this agreement might perhaps also come to
form the basis for a worldwide arrangement 2).
The Chicago Convention in its present form must be regarded
as providing an inadequate basis for commercial international air
traffic. Attempts were certainly made at Chicago to make further
provision for such a basis, but the divergent tendencies then already existing prevented them from reaching fruition. Even today it must be recognized that in this respect the world situation
is not much more favourable, although unmistakable progress has
been made which might mean that, at least on a regional basis,
further multilaterialism as regards the exchange of commercial
rights can be achieved 3). It should be borne in mind that at
Chicago in 1944 there were inevitably memories of the pre-war
political history of civil aviation, and that besides the desire to do
things better and differently, there was also the fear of going too
far in a liberal direction 4).
1) CI. ICAO Document A7-WP/9 EC/4 of 25/3/53, p. 7; cl. also p. 92 below.
Under the liberal policy of the Netherlands only guarantees against under-cutting of
the fares for scheduled services are required, unless a non-pro-rated charter flight is
involved.
Charter flights can be divided into "pro-rated" charter flights and "non-pro-rated"
charter flights. When the passen gers individually pay a fare the charter is pro-rated
(e.g. all-inclusive chartered aircraft tours, ICAO Doc. A7-WP/9, p. 10). See further
p. 33, note l.
2) See further pp. 94 ff. See also ICAO Res. AI0-32 (5) (6), Doc. AIO-WP/148,
P /15, 16/7/65.
3) See pp. 40 ff. on this subject.
4) For the political history of civil aviation, see Captain Jacob Schenkman, Inte~­
national Civil A viation O~ganization, Geneva 1955, pp. 14-23.

CHAPTER 11
TRENDS IN AVIATION POLICY IN 1944 AND SINCE
The use 01 the air has this in common with the
use 01 the sea: it is a highway given by nature
to all men. Jt dillers in this Irom the sea: that
it is subject to the sovereignty 01 the nations
over which it moves. Nations ought therelore
to arrange among themselves lor its use in that
manner which will be 01 the greatest benelit to
all humanity, wherever situated.
ADOLF A. BERLE, Chairman of V.S.
Delegation to the Civil Aviation Conference, Chicago, 1944 1)
At the Chicago Conference in 1944, various schools of thought
found expression. There were those who took up an idealisticuniversal attitude and stressed the future of international civil
aviation in general; there were those who thought only of their
own national interests; and there were those who believed they
were serving both the international, worldwide, aspect and their
own national interests at the same time. Most States, and this was
soon clear to all, were seeking in the first place to provide their
own international civil aviation with as many guarantees as
possible for its development. On the other hand, these guarantees
must not be likely to endanger the development of international
civil aviation in general. It proved impossible, however, for the
delegates to find the formula for the right balance between the
requirements of their own national interests and those of the
general interest, of which, in any case, they had only a very
vague idea.
Between the view that the general interest required a complete
"freedom of the air" 2) and the view that each State must, in virop. eit., p. 55.
2) "It is therefore the view of the Uni ted States that, without prejudice to full
rights of sovereignty, we should work upon the basis of exchange of needed privileges
1)

12

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

tue of its sovereignty, retain complete control over everything
that took place via its frontiers 1), there were the advocates of
various middle courses, which they defended partly in their own
interests and partly because they were convinced that the general
interest required them to do so. Ultimately, it was a question of
the share each State was to have in international air transport as
a whole. There was also the fact that the position of a small
country rendered it suspect if it sought to defend the general
interest by advocating a limitation of control by States. For a
small country can only exercise control, in virtue of its sovereignty, over a small part of international air transport as a whole.
And if, moreover, its geographical position is unfavourable, such
control has very little value. A limitation of control cannot but be
advantageous to a smaU country, and to advocate such a course
is therefore soon seen as a defence of such a country's own interests.
On this point the Chicago Convention is a compromise, leaving
as it does to States the fuU control, in Article 6 over "scheduled"
air traffic, and in Article 7 over transport between two points
within their national territory (cabotage), but in Article 5 allowing a certain freedom to "non-scheduled" air traffic. The preamble
sets out to serve international civil aviation in general, whilst
finally Article 44(d) , (e), (f), (g) and (i) envisages both the general
interest and the national interests of the individual States as
among the aims and objectives of ICAO's work.
In this compromise the accent clearly lies on the sovereignty of
States over the air-space above their territory, as recognised in
Article 1 of the Convention. The exercise of sovereignty rights is
unmistakably restricted, however, partly by the requirements
made in the general interests of international civil aviation.
A distinction must be made between domestic aviation and
and permissions wh ich friendly nations have a right to expect from each other". Adolf A. Berle, U.S.A., ap. eil., p. 56.
"We on our side approached it (the problem of international air transport) fom
the point of view of freedom of the air". - Adolf A. Berle, USA., ap. eil., p. 111.
") "Finally, our Delegation wishes to reserve to the authority of its own Government the right to authorize, according to its own criteria, the establishment of air
transportation service over its territory, issuing directly to the applicants the appropriate permits". - Mexico, ap.eil., p. 75. " " .. it should not be permissible that any
international organization supersede the right of the states in the judgment of what
is more convenient for its own interests". - Brazil, ap. eil., p. 86.

TRENDS IN AVIATION POLICY IN 1944 AND SINCE

13

international aviation. "Domestie", i.e. national internal, aviation falls entirely within the eompetenee of the individual States,
and is governed solely by nationallaws 1). The Chieago Convention does not apply to flights entirely within the frontiers of a
State by an aireraft having its eentre of operations in that State.
Thus Article 7 of the Convention also gives States the right to
reserve 'eabotage' transport to their own airlines. Article 7 does,
it is true, speak of the possibiHty 2) of refusing eabotage rights to
the aireraft (not "airlines") of other eontracting States, but this
is clearly not intended to refer to the use of foreign aireraft within
the frontiers of aState by an airHne domieiled in that State or to
prejudiee the position of aState vis-a-vis its own aireraft if used
by a foreign airline 3). Aeeordingly, in bilateral aviation agreements eabotage is normally denied to the airlines of either party 4).
Nor ean it be intended that the eabotage reservation in Article 5,
para. 2, of the Convention should apply to foreign aireraft in eases
were, in the event of similar use of national aireraft, only the
nationallaws are applieable. But States will wish to apply it to
their own aireraft if used by a foreign airline 5).
We shall not here enter into an examination of the poHey of
States towards domestic aviation, though it eannot be denied
that this poHey affects the attitude of States towards international aviation. But in addition, the trends in aviation poHey
at international level are also governed by a large number of
variable external faetors and cireumstanees, as a result of which
international aviation poHey is eharaeterized by a certain opportunism. In this eonneetion it ean be said that the odium of
self-interest, already referred to, lies not only on the small States
1) N.B. Art. 12 of the Convention, concerning the "rules of the air", does impose on
States an obligation in the interests of safety. Similarly Art. 8, concerning pilotless
aircraft.
Art. 12 is of more particular importance in this respect, having regard to Art. 5,
paragraph 1.
2) It would be wrong to deduce from this that cabotage is permitted unless expressly forbidden. The second sentence of Art. 7 assumes the contrary, which is more in
accordance with general views and practice.
8) See also p. 122, notes 3, below.
4) N.B. The second sentence of Art. 7, in which discrimination is forbidden, no
longer speaks of "aireraft" but of granting the privilege of cabotage "to any other
State or an airline of any other State". On the subject of cabotage, see also p. 69 ff.
and in particular p. 70, note 4.
5) See, also p. 39, note 3, and p. 17, note 1.

14

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

in the event of their advocating a liberal policy, but equally on
all other States, whatever their policy. So far, however, there has
scarcely been any suggestion of a truly "international" policy 1).
But there has been no lack of theories, sometimes of diametrically
opposing tendencies. In order to cushion the impact of their own
protective policy in other countries, States have assiduously striyen after a generally acceptable division of traffic according to
certain criteria. The result of these efforts is that States generally
do recognize the right of foreign airlines to maintain services to
and across their territory, barring special circumstances, provided
that certain mIes are observed, inter alia with respect to landingplaces, the routes to be followed, the number of different routes,
the number of frequencies, and the traffic to be picked up or set
down 2). Since civil aviation still functions mainly in the government sphere (most of the major airlines are controlled or subsidized by their governments), this practice means an indirect allocation to each separate State of a share in world air traffic, the
principle of which can be traced back to positive international
law 3), but the basis for which, as regards the size of this share,
must rather be sought, within the limits of reasonable competition, in the "comitas gentium". The share in the traffic thus
acquired by aState is therefore often bound up with the international standing of that State 4). In many cases, however, this
standing is largely dependent on what aState has to offer by way
of traffic, so that such aState usually can and does demand the
necessary reciprocity. The development of civil aviation thus
remains heavily dependent on the bilateral relations between
States. Militating against the movement towards multilateralism
for the formal limitation of the sovereign rights of States is the
power to impose restrictions which States will wish to continue
reserving to themselves, especially if, instead of dealing with
1) See in this connection, for a brief exposition of the aviation policy of the U.S.A.,
the U.K., France, the Netherlands, and certain other countries, Prof. D. Goedhuis,
Politiek en Recht in de Internationale Luchtvaart, The Hague 1953.
2) N.B. Art. 7 of the Convention would be quite superfluous if Art. 6 were intended
to give States complete discretionary powers to refuse permission to aircraft of other
Contracting States to conduct international scheduled services to or via their territory.
3) Cf. Art. 44(f) of the Chicago Convention.
4) Thus, for instance, the international standing of the Netherlands as a country
with a great tradition of service contributed in no smal1 measure to the opportunities
of growth afforded the K.L.M., inter alia from the point of view of aviation policy.

TRENDS IN AVIATION POLICY IN 1944 AND SINCE

15

every other State separately, they are confronted with a number
of States at the same time when establishing their aviation policy.
Since Chicago, therefore, bilaterialism has in this way determined
the development of aviation. This can be explained by the
customary definition of "aviation policy", which is often formulated along these lines:
Unter Luftverkehrspolitik verstehen wir das Handeln bestimmter Organe, um einer Volkswirtschaft die für sie
notwendigen Luftverkehrseinrichtungen rechtlicher und materieller Natur zu sichern, die bestehenden zu erhalten, auszubauen und für bestimmte Zwecke zu verwenden 1).
The means of achieving "complete freedom of the air" was seen
as the complete abolition of the sovereignty of States 2), of the
control of States over traffic to, from and across their territory,
without this being replaced, however, by a Convention which
would lay down a formula for the size of the share in international
civil air traffic accruing to each State as of right. Complete "freedom of the air" means, then, that each State is entitled to the
whole of the international civil air traffic. Through free competition each State will acquire its share. The means for aState in
which it made full use of its own sovereignty, on the other hand,
was to declare traffic to and from States as the "property" of
those States, and to admit foreign airlines within its fron tiers as
and when it thought fit, on a basis of strict reciprocity 3).
A means of pursuing amiddie course, though not exactly a
golden mean, was provided by the division of international traffic
into the so-called "five freedoms" 4).
The first of these freedoms is the right to fly across the territory
of aState without landing.
1) "By aviation poliey we me an the aetions of eertain ageneies to seeure for a
national economy the aviation faeilities of a legal and material nature that it requires,
to maintain andextend existing faeilities, and to use them for eertain ends." - Albreeht
Keller, p. 27 of work quoted below (p. 43, note 1).
N.B. This definition refers to and illustrates the national(istie) aviation poliey of
States, and makes no allowanee for the international funetion of civil air traffie, as
recognized in the Chicago Convention.
i) For our views, see below, p. 132ff.
3) "All rights gran ted by Panama to nationals of other countries are to be eonditioned on reeiprocity", op. cit., p. 86. N.B. Reciprocity is not neeessarily the same
as quid pro quo. See further p. 111, note 3 below.
4) CI. International Civil Aviation Conlerence, Final Act and Related Documents,
Appendix VI: International Air Transport Agreement, Artic1e I, Seetion 1.

16

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

The second freedom is the right to land on the territory of
another State for non-traffic purposes (that is, to make a so-called
"technical" landing, e.g. in order to refuel).
The third freedom is the right to put down on the territory of
aState passengers, mail and cargo taken on in the territory of the
State whose nationality the aircraft possesses 1).
The fourth freedom is the right to take on in the territory of a
State passengers, mail and cargo destined for the territory of the
State whose nationality the aircraft possesses 2).
Finally, the fifth freedom is the right to take on passengers, mail
and cargo destined for the territory of any other State, and the
right to put down passengers, mail and cargo coming from any
such territory (= carriage between two foreign countries).
The first two freedoms are generally referred to as the "technical freedoms" or "technical rights", whilst the last three form the
so-called "commercial rights", being concerned with the picking
up and/or setting down of passengers, mail and cargo.
It must be stated that these "freedoms" were not embodied in
the Chicago Convention of 1944, and are not, therefore, binding
as basic principles on the parties to that Convention.
As a means of distinguishing the various kinds of traffic, the
five freedoms have, as well as their merits, certain serious shortcomings, both theoretical and practical. To these we shall revert
later.
The "five freedoms of the air" theory was, however, and still
is, widely accepted as a basis for the exchange between States of
rights to operate international air services.
Two additional conventions were drawn up at Chicago and laid
open for signature by the Contracting Parties of the Chicago Con1) Some States regard only the "homeland" as the territory of aState for the
purposes of 3rd, 4th and 5th freedom trafiic (e.g. San Salvador with respect to the
Netherlands, Cura<;ao not being considered "territory" in this connection. 1954). This
assumption is also made in the International Air Transport Agreement, Art. I, Sect.
I, second paragraph. Ci. K.L.M. Foreign Air Carrier Permits, Docket No. 1187, decided
March 14th, 1946 (Cura<;ao-Miami route), and the "Venezuela Case", Dockets 2180,
2281 and 2318, decided August 15th, 1946, (V.S., CAB).
2) N.B. It would be better, and more in accordance with actual practice, to take
the nationality of the airline as the criterion instead of the nationality of the aircraft.
CI. also atto Riese, Prtcis de Droit Atrien, Paris, 1951: "Le probleme de la
signification exacte de la nationalite de l'avion n'a pas encore re<;u une solution claire
et definitive, en sorte qu'il serait preferable d'eviter cette notion" (p. 122). Cf. also
Chapter III of the Chicago Convention, and p. 13, note 4 above.

TRENDS IN AVIATION POLICY IN 1944 AND SINCE

17

vention; they provided for the mutual granting of the first two
"technical" or "operational" freedoms and all five freedoms,
respectively. The first, the International Air Services Transit
Agreement, proposed by the V.K. Delegation at Chicago, found
quite a number of signatories 1); on the other hand the second,
the International Air Transport Agreement 2), proposed and
advocated bythe V.S. Delegation at Chicago, in which much more
far-reaching obligations were laid down (control by States was
almost entirely abolished), met with little success 3). Without
sufficient signatories, the Transport Agreement has little value,
since the fifth freedom is gran ted only between the parties to the
Agreement (see the definition of the fifth freedom in Article I,
Section 1).
Most States, however, wished to reserve the right, as laid down
in Article 6 of the Convention, to regulate their relations with
other States in aviation matters by means of separate bilateral
agreements.
To this end a standard form for bilateral aviation agreements
was worked out at Chicago, the so-called "Chicago form", which
was intended as a guide to States 4). The provisions of this
standard form were very liberal, but were mainly intended to
expedite the revival of international civil aviation immediately
after the end of the war, so that mention was made of "provisional airroutes". One year's notice was stipulated for withdrawal.
Nevertheless, the provisions of this standard form have con1) What Article 5, paragraph I, of the main Convention provides with respect to
non-scheduled flights is gran ted for scheduled flights by the International Air Services
Transit Agreement. The Transit Agreement is wider, however, in that it does not give
the State flown over the right to require landing. On the other hand, the so-called
"substantial ownership clause" does not apply to non-scheduled flights. See also p.
31, note 2, and p. 62 H.
a) For the texts of these agreements, see ICAO Doc. 2187, pp. 67-75.
8) Although the V.S. Delegation at Chicago pro mo ted the International Air Transport Agreement and thereby encouraged multilateralism, the American Government
was by no me ans in favour of multilateralism, as witness inter alia the fact that the
V.S. was eagerly entering into bilateral ne go ti at ions on aviation matters with a
number of countries round about that time, culminating in the conclusion of liberal
aviation agreements. Subsequently, at Bermuda, the multilateral idea was openly
and finally repudiated by the V.S. Cf. also the "Venezuela Case" (p. 16, note 1 above)
in which the CAB applied the strictest possible interpretation to the multilateral Air
Transport Agreement, holding that it is not required to give to the other contracting
States ':any number of routes upon which the five freedoms are to be exercised", but
that the award of routes shall be determined upon a basis of reciprocity.
4) See Doc. 2187, pp. 18-21.

18

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

tinued since 1945 to serve as a framework for bilateral aviation
agreements, a great variety of restrictions being added, however,
particularly with respect to the fifth freedom. Attempts were
ultimately made to find a golden mean in the matter ofrestrictions,
and this was thought to have been found in the bilateral aviation
agreement of 11 th February, 1946, concluded at Bermuda between the V.R. and the V.S.A. and known as the "Bermuda
Agreement" 1).
In so many words, this Agreement was proclaimed by the V.R.
and the V.S.A. as the standard pattern for all bilateral aviation
agreements concluded and to be concluded by the two States 2).
Many other States followed this example.
Meanwhile, the ICAO was striving after a generally acceptable
multilateral agreement for the exchange of rights respecting the
operation of international air services between the contracting
States, and these efforts reached their climax at Geneva in 1947.
Agreement could not be reached, however, about the draft then
put forward 3).
Thus, in the main, the Bermuda Agreement remained the basis
on which "commercial rights" (i.e. the 3rd, 4th and 5th freedoms)
were exchanged bilaterally between States. Since the Bermuda
Agreement, as its principal characteristic, merely provides that
the exercise of the fifth freedom may only be a secondary aim
after the "primary objective" of the exercise of third and fourth
freedom rights, that is to say, prima facie, that fifth freedom
traffic may not form more than 50% of all traffic, this basis
allowed States ample latitude for inserting further restrictive provisions concerning the percentage of fifth freedom traffic or for interpreting and applying the Bermuda provisions with a greater or
lesser degree of restrictiveness. Thus a restrictive Bermuda-type
agreement is said to be a "heavy Bermuda", as against a "light
Bermuda" in which the provisions are simplified and no further
restrictions are imposed or which is not interpreted restrictively.
In order to circumvent provisions that were tao restrictive,
civil airlines have sought through co-operation, for instance in the
form of operation for joint account, to create a common interest
1) Treaty Series, No. 3, H.M. Stationery Office, London 1946. See also p. 53 ff.
below.
2) Joint Statement of 19th September, 1946.
3) ICAO Doc. 5230 A2-ECjl0, p. 133 ff.

TRENDS IN AVIATION POLICY IN 1944 AND SINCE

19

and to avoid excessive competition (e.g. the pooling of services).
In many cases, moreover, such co-operation has resulted in a
saving on costs and equipment. At present there is adesire in
many quarters for still more extensive and far-reaching cooperation, in which the airlines might even have to give up part,
or the whole, of their independence. From other quarters, however, it is stressed that co-operation is not wholly advantageous
to the airlines and the public, but entails very serious disadvantages.
Even at Chicago in 1944, an international air transport authority was being advocated by various delegations 1). This was opposed by the U.S. Delegation: "Thus it is proposed that an international body should allocate routes and divide traffic; but a
great silence prevails when it is asked on what basis shall routes
be allocated or traffic divided; or even, what is 'equitable' in
these matters".
The U .S. felt that experience in the economic and political
fields must first be gained before such an international body could
be set up. "For that reason, the United States will support an
international organization in the realm of air commerce having
power in technical matters and having consultative functions in
economic matters and the political questions which may be directly connected with them .... " 2).
The ICAO did not, therefore, become an international air
transport authority, nor was there any possibility of setting up a
single international airline 3).
That voices are now again being raised in favour of some such
scheme is due to the fact that the experience gained since 1945
has disappointed some and has made others dissatisfied with their
share in international air traffic. Quite apart from whether the
"solution" advocated by these disappointed or dissatisfied States
is capable of realization, it may be questioned whether such a
solution would mean an improvement of the situation and whether
the solution to the problems should not be sought in a different
direction.
1) UK, ap. eil., p. 63; Canada, ap. eit., p. 70 ff.; India, p. 76. Australia and New
Zealand went a step further: "international ownership and operation of air transport
services on international trunk routes", ap. eit., p. 79; p. 83.
2) Adolf A. Berle, U.S.A., ap. eit., p. 60.
3) On the debates at Chicago see also J. Schenkman, ap. eit., p. 81 ff.

20

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

We range ourselves on the side of those who see in healthy and
fair competition, certainly in a field such as aviation, with its
immense new possibilities, the necessary incentive to promote
further the development of international air communications, and
foresee that this will remain so for many years to come, so long
as aviation has not yet found its definite shape and has not yet
become an everyday means of transportation everywhere in the
world 1). The competitive principle therefore seems to us, certainly taking the long-term view, the most fruitful "aviation policy
means" of promoting the aim common to all States, the further
development of international dvil air traffic.
Thus the system of competitive free enterprise in the U.S. has
been one of the factors leading to the much greater development
of air traffic in that country than anywhere else in the world. An
important additional factor, of course, has been the fact that the
U .5. has been able to develop substantial domestic air services
owing to the vastness of its territory and its federal status. Moreover, owing to their high standard of living the American public
have been able to afford the fares for air travel more easily than,
say, the public in Europe 2). But in Europe, civil aviation has
still had no chance to develop freely and has been fettered from
the very beginning by all kinds of government regulations 3).
That competition can work constructively, even as regards
traffic, is confirmed inter alia in arecent report by the Maritime
Transport Committee of the O.E.E.C., in which it is stated that,
whilst the competition from air travel has certainly changed the
composition of the stream of passengers, it has acted as a stimulus
rather than as a brake on sea travel. This statement lends support
to the saying that "traffic creates traffic", which is often used as
an argument for free competition.
1) For the purpose of avoiding or suppressing any undesirable consequences of free
competition, the D.S.A. with its highly developed airline system has the criterion of
"the public convenience and necessity" (see s. 401 of the Civil Aeronautics Act). On
this subject, see Erik B. Gasser, op. eit., p. 22 ff., and pp. 148-149 on the competitive
principle; see also A. J. Thomas Jr., Economie Regulation 0/ Scheduled Air Transport,
Buffalo N.Y. 1951, p. 224 ff. The D.S. Congress recently questioned the "excessive"
profits of the domestic trunk airlines (aboul28% after taxes), as an industry of public
utility. (Comparable figure for other D.S. industries, 54%).
2) The entirely different situation in the D.S.A. makes a comparison between the
regulation of D.S. domestic ivil aviation by means of an authority (the C.A.B.) and
the regulation of international civil aviation impossible.
3) Dnder the four-power agreement, air services between Berlin and Western
Germany are reserved for the carriers of th0se nations. This monopoly has kept
modern equipment off the routes to Berlin.

CHAPTER III

PROBLEMS IN THE FIELD OF AVIATION POLICY

Every nation, which aspires to be in the air,
will wish to have, and indeed will insist on it,
in addition to its own internat trattic, a lair
share 01 its externat air trallic as welt.
LORD SWINTON, Chairman of U.K. Delegation to the 1944 Chieago Conferenee 1)
There are numerous faetors which play a part in the regulation
of international civil air traffic. The Brazilian Delegate at Chieago
in 1944 observed that:
As long as air transport is earried on by eompanies clearly
defined by nationality, it seems impossible that the power
to establish regulatory provisions for air traffie, whieh have
been so far aehieved by agreements between the interested
nations, eould be entrusted to an international body 2).
There are indeed a large number of independent airlines of
various nationalities to be reekoned with.
As well as being a military interest 3), it is for many States a
question of international prestige and national pride that they
should maintain their own international eivil aviation. Although,
in the years immediately following World War II, international
civil aviation did not always pay, it has been doing so more and
more during the past few years - or at any rate, now that it is no
1) ap. eit., p. 64.
2) ap. eit., p. 86.
S) In the U.S.A., in particular, the civil aviation industry is regarded as "a vital
branch of armament". Moreover, States consider it vital to have their own civil aviation in case the services of foreign airlines should be suspended in times of tension,
when they would be thrown back on their own resources as regards civil transportation.
To this it could be added that civil aviation forms a good training for pilots, whilst
the equipment is also of military importance.

22

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

longer in its infancy, the possibility of making it pay lies with the
airlines themselves, provided a number of external conditions are
fulfilled. Thus, for aState to have its own national airline can also
be econornically advantageous; and civil aviation has a sodal
importance as an industry 1). States are therefore striving to
obtain the largest possible share in international civil air traffic.
The competition resulting from a freedom of the air in which
anyone could carry traffic without 'restriction, however, would
for many airlines outweigh the advantage of being able to fly
everywhere and pick up and set down traffic anywhere.
Now international civil aviation is characterized by the routes
flown by the various airlines, the frequency with which these
routes are flown, the capacity of the aircraft flying them (number
of seats for sale) , the comfort (speed, accomrnodation, etc.) offered
to passengers, and the rates. Each of these factors forms a point
which can be seized on by States and made the subject of special
regulations, thus enabling them to curb unrestricted competition
which is too strong for their own national airline(s) 2). Under the
shield of Article 44(e) of the Chicago Convention, in which one of
the objectives of the ICAO is stated to be to "prevent economic
waste caused by unreasonable cornpetition", States have been
able to limit the "freedorn of the air" without being reproached
with arbitrary exercise of sovereignty. In so doing, moreover,
they have been able to invoke another of ICAO's objectives, as
stated in Article 44(f) : to "insure that the rights of contracting
States are fully respected and that every contracting State has a
fair opportunity to operate international airlines". Since it has
not been possible, either at Chicago or since, to find a general
international criterion for this, each State has laid down its own
standards, inspired by those most directly concerned, namely its
own national airline(s).
Over traffic frorn, to and across their own country (3rd and 4th
freedom traffic for their own national airlines) States have been
1) The K.L.M., which has about 14,000 employees, made in 1951, for instance,
without subsidy, a net profit of Dfls. 10,500,000 with a turnover of Dfls. 233,666,884;
and in subsequent years its operations have continued to show a profit, without being
either directly or indirectly subsidized.
2) With regard to rates, the fact that most of the airlines maintaining regular
services are members of the IATA is a reasonable argument for opposing rates lower
than those fixed by the IATA, in order to avoid "open situations", i.e. rate wars.

· PROBLEMS IN THE FIELD OF AVIATION POLICY

23

able to exercise control!). This may be traffic between adjoining
States (e.g. France-Italy-France), but it mayaiso be traffic over
great distances via a large number of other States (e.g. FranceJapan-France). It is easy to understand that, if it were to confine
itself to this traffic, an aircraft on the outward flight would have
fewer passengers on board after every intermediate landing, and
would finally arrive at the terminal with only those passengers
who embarked at the starting-point with the terminal as their
destination. The same holds good for the return flight 2). If there
are always enough passengers for and from each point along the
route a separate service could be flown for each of these points.
But since these services would all be flying over parts of the same
route, this would be very uneconomic, quite apart from the
question of whether there would be enough passengers for each of
these services on the days on which it would be possible to operate
them.
States cannot confine themselves simply to third and fourth
freedom traffic, since this makes it impossible for a civil airline
to operate economically and profitably, particularly over long
distances (trunk services or "services long-courriers"), with large
aircraft. States are therefore dependent on the traffic between
third countries, over which they can exercise no direct control
(5th freedom traffic). Since this dependence on 5th freedom traffic
applies to all aviation countries, aState can offer its 3rd and 4th
freedom traffic to States for whom such traffic is 5th freedom
traffic, in exchange for these States' 3rd and 4th freedom traffic,
which to the first State is 5th freedom traffic. Such a trans action
can, of course, only be effective if both parties also enter into a
similar transaction with the States situated at the other end of
these routes. An example may make this clear:
Let us assurne that, on the route Paris-Rome-Cairo-RomeParis, a French airline wishes to carry Rome-Cairo-Rome traffic
(5th freedom). For this to be possible, France must first obtain
permission from Italy to carry traffic on this (for Italy 3rd and
4th freedom) sector. In addition, France must obtain similar
1) Cf., by way of illustration, Enrique A. Ferreira, Doctrine argentine en droit international atrien, University of Cordoba 1947. See further p. 26 ff.
21. Cf. M. Lemoine, Essai sur les perspectives d'avenir du Droit Atrien International,

Paris 1948, p. 9.

24

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

permission from Egypt. Both Italy and Egypt will be anxious to
obtain in exchange Franee's permission to earry, say, ParisLondon-Paris traffie. But similar permission will, in turn, also
have to be obtained from Britain; ete. ete.
"Fifth freedom traffic" thus forms a rather eomplieated problem, and has done so ever sinee its formulation as such. In principle, therefore, States have allowed eaeh other to earry 5th freedom traffie 1). Sinee 5th freedom traffic is always, for the States
between whieh it is earried, 3rd and 4th freedom traffic over
whieh they ean exereise direct eontrol, these States are almost
universally aeeorded preferential rights for the earriage of this
traffic. (Expressed in its most precise form, the position is that,
in principle, half the traffic between two countries aeerues to eaeh
of them). In eonsequenee of this, States earrying this traffie as
5th freedom traffie are only allowed to do so to a eertain extent
and provided they eomply with eertain eonditions, mainly for
reasons of eompetition.
With the ereation of the preferential right to 3rd and 4th freedom traffic, however, there arises at the same time an obligation
on States, namely that the 3rd and 4th freedom traffie must be
the "primary objective" of their air services! In eonsequenee,
5th freedom traffie may only be "eomplementary" 2).
This has not settled the problem of 5th freedom traffie, however, sinee the expression "primary objeetive" is rather vague
and leaves room for a variety of interpretations by States. The
praetiee under this rule is that an ex post facto review of the
traffic earried on a given route must show that, in the ratio between 3rd and 4th freedom traffic on the one hand and 5th freedom traffic on the other, the stress has lain on the 3rd and 4th
freedom traffic.
In addition to this guarantee to States that their rights to 3rd
and 4th freedom traffic will not be unduly impaired - a guarantee,
incidentally, whieh for the States themselves aets as a boomerang
1) Since the Bermuda Agreement, in which the 5th freedom is recognized as a
"right" and indirectly allowed in principle, has been accepted by the majority of
States as a standard model for bilateral aviation agreements conc1uded as a result
of Artic1e 6 of the Convention, the granting of the fifth freedom can be regarded as
a rule of internationallaw. See further p. 112 ff.
2) CI. the Bermuda Agreement, para. 6, which is intended to lay down a ratio
between 5th and 3rd + 4th freedom traffic for trunk routes. U.K.-U.S.A. Civil Aviation Conference, Bermuda, 15th January-llth February, 1946.

PROBLEMS IN THE FJELD OF AVIATION POLICY

25

in respect of the 5th freedom traffic on the air services of their
own airline(s) - the routes to be flown by foreign airlines from, to
and across their territory have been indicated by States in the
bilateral aviation agreements; and in course of time these routes
have come to be specified more and more precisely. With respect
to 5th freedom traffic, a number of States have shown a preference for a "predetermination" of traffic by restricting the capacity to be operated and sold and/or the number of frequencies,
rather than the aforesaid "ex post facto review" 1), or have done
this as a result of such "ex post facto review".
Apredetermination is made of the capacity with which it is
permissible to fly (type of aircraft and/or number of seats for sale
in the aircraft, sometimes further specified for the 5th freedom
sectors) and the frequency (number of services per week) with
which it is permissible to fly over each route.
This predetermination is made on the basis of an estimate of
the amount of 3rd and 4th freedom traffic or in the light of the
transport demand in the sector concerned, having regard to
existing services. Other countries have gone even further and
have taken only "end-to-end traffic", i.e. between the State eoneerned and their own territory, as a basis, disregarding the 3rd
and 4th freedom sectors of other countries along the route 2).
In 1952 Argentina introduced yet another system by requiring
airlines operating trunk routes to and from Buenos Aires to
charge higher rates on the sectors from Argentina to surrounding
countries (for Argentina 3rd and 4th freedom sectors) than the
Ioeal airlines operating local services on these sectors. The intention, however, was that in eonsideration of these high er rates all
other restrietions on these sectors as portions of a trunk route
should be dropped. Since loeal air services eannot offer the same
eomfort as trunk services, which are generally operated with
Iarge, fast, modem aircraft, this was therefore a reasonable solution, provided that all other restrietions were indeed dropped.
As the opposite extreme from a "freedom of the air" policy,
States are thus now arriving at systems of "ownership of traf1) India in the bilateral air agreement with the U.S.A. (3rd February, 1956),
Exchange of diplomatie Notes; Franee in the bilateral air agreement with W. Germany, 4th Oetober, 1955.
2) Brazil, Australia, U.K. and the Union of South Afriea, for example.

26

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

fic" 1), division of traffic, and full protection of their own national airlines 2). There are many means of putting these systems
into practice, in all of which the above-mentioned characteristic
features of civil aviation, with its numerous different "national"
airlines, provide as many opportunities of imposing restrictions.
Even at Chicago in 1944, a plan was already being unfolded
which would have guaranteed every State a "fair and practical
share" ofthe traffic 3).
A system of division of routes between the various civil airlines was also developed 4).
There were found, however, to be no realistic criteria for these
methods of dividing traffic, and hence none capable of general
acceptance in practice.
The problem of an alternative to the freedom of the air policy
therefore still remains unsolved, although the Argentine measure
of "rate differentials" accompanied by freedom of air traffic may
offer a possible way out of the chaos of different national interpretations, regulations and systems 5).
The Argentine theory inspired by Prof. E. A. Ferreira, in which
traffic is declared to be the property of the State and traffic between two countries accrues to them in equal shares, however,
means in essence that the ollering 01 trallic lacilities Irom and to a
country is the sole right of that country, or rather, the "joint
right" of the countries between which the traffic is carried 6).
The other extreme, that of absolute freedom of air traffic, is
equally unrealistic. World conditions do not permit the cherishing
of any hopes that, within the foreseeable future, countries will
change their policies in the direction of absolute freedom. N evertheless, it is easier to find valid arguments for a policy of freedom
1) Cf. Prof. E. A. Ferreira, The Capaeity Problem under the Argentine doetrine in
International Air Law, University of Cordoba 1952, p. 32 ff.
2) Argentina has thus come to adopt the requirement (e.g. in her aviation agreement
with the U.S.A.) that 5th freedom traffic must not onIy be "cornpiementary" to 3rd
and 4th freedorn carried on a service, but also "subsidiary" to 3rd and 4th freedom
traffic; this means that everywhere along the routes the Iocal and regional services
always enjoy priority rights to what is, for thern, 3rd and 4th freedorn traffic, over
airlines for whorn it is 5th freedorn traffic.
3) U.R. See further p. 47 ff.
4) See Chapter V.
5) Cf. Argentine Decree No. 1355/52 of 23rd July, 1952, which came into force on
2nd August, 1952. For "rate differentials" see below, pp. 44 and 127.
6) Cf. Prof. D. Goedhuis, op. eit., p. 22. Cf. also Institut Franvais du Transport
Aerien, Paris, Informations Seleetionnees, A. 128, 24th September, 1951.

PROBLEMS IN THE FIELDOF AVIATION POLICY

27

than for the Argentine theory, inspired as the latter is by the
desire to protect each country's own airlines.
Does aState, for instance, also own the traffic flying across its
territory? Yet it must be admitted that an airline flyingfrom, say,
Karachi to Bangkok direct is taking traffic ("property") from
local Indian airlines who carry this traffic via Calcutta or N ew
Delhi.
There are countries which insist that an intermediate stop be
made on through services across their territory (e.g. Ireland, for
the reason,however, that it is desired to make Shannon an important airport, and for the sake of the landing charges, etc.;
Portugal, for prestige and traffic reasons; Syria; Uruguay; Chile).
The insistence on such an intermediate stop may put the airlines
concerned at a dis advantage in the competitive struggle, just as,
conversely, the ban on or restriction of landings and traffic rights
does.
It is clear, however, that although aState can, in virtue of its
sovereignty, ban flights across its territory or subject them to
conditions (negative), it is hardly possible to postulate a right of
the State to the traffic in question (positive).
The basis of the "ownership theory" can only be an economic
one. Control of the international traffic from, across and to a
country is exercised under this theory on other grounds and by
other means than those of aviation policy alone. AState may
oblige its own subjects to travel by its own airlines, it may force
people to use its airlines through its aviation policy and even, for
instance, indirectly through financial measures, but it cannot
bring international traffic as such within the sphere of its nationallaw 1). International traffic is, by its very nature, necessarily
subject to international agreement and lies of necessity within
the sphere of internationallaw. An "ownership theory" held by a
State can therefore only have legal effect if and in so far as it is
internationally accepted, i.e. by one or a number of other countries
1) N.B. A comparison with flag discrimination in shipping is inevitable here. We
are dealing here with the external exercise of sovereignty by the State, with which the
internal exercise of State power, as in these cases, comes into conflict. The national
norm should here be adapted to fit in with the international norm, after exerting its
influence on the coming into being of the latter, at least if aState accepts the international community as such. (C,. the cargo preference measures, which are contrary
to the customary rule of the freedom of the seas).

28

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

in some international agreement with that State. Since, however,
the contrary is the case, the prevalent view being that international traffic enures to all States, subject to certain conditions, the
"ownership theory" with respect to international traffic cannot
be accepted as a valid theory. Aviation policy will accordingly
find its basis and the solution to its problems, if such a solution
exists, only in internationallaw and in worldwide agreement.
The applicable rules of international law are to be found in
treaties, in customary practice, and in the general principles 01
law as now in force. There is virtually no case law in this field.
The opinions of learned writers, on the other hand, are of great
value in tracing the legal bases of aviation policy. It might be
thought that there would be much in common between public air
law and maritime law, so that in order to trace the legal principles
governing civil aviation it would simply be a matter of referring
to the much older law governing shipping. But this is only partly
true. Civil aviation has very specific characteristics and some
entirely new aspects which call for attention. If, therefore, attempts were to be made to dec1are existing principles of law
applicable to civil aviation, this would often only be possible
after those principles had been adapted to meet the newly created
situation, an adaptation which might impair their character. AIthough much can be borrowed from maritime law, it nevertheless
has been and still is necessary to formulate a new code of law for
civil aviation, precisely because of the specifically distinctive
character of civil aviation and the entirely new problems which
have arisen, and are still continually arising, with the coming into
being of civil aviation 1).
1) Cf. also p. 149ff. Prof. D. Goedhuis in "Civil Aviation after the War", American
Journal of International Law, Vol. 36, No. 4, Oet. 1942, p. 596 ff., points to the Inter-

national Conferenee for Air Navigation held in Paris in 1910, where no speeifie regulations for the pieking up and setting down of passengers, mai! and cargo were envisaged, it clearly being assumed that aireraft would reeeive the same treatment as ships
in ports and territorial waters, i.e. no diserimination between national and foreign
aireraft. This was also the ease - though here some doubt is possible - at the Versailles
Peace Conference in 1919 (Art. 15,4°), where only the question of the pattern of international routes was envisaged, and not the question of eompetition. On both oceasions
the "freedom of passage" was reeognized, subject to the "droit de conservation" and
(at Versailles) to eomplete sovereignty over the air-spaee above national territory,
having regard to the vanquished States. When, however, owing to the growth of the
civi! aviation industry, the air gradually began to aequire an ever more specific
importanee as the objeet of a desirable activity, speeifie legal views on the use of the
air began to develop. The use of the air came to be judged more and more on its own

CHAPTERIV

MEANS OF AVIATION POLICY

Civil aviation is the greatest instrumentality
tor international solidarity.
WINSTON CHURCHILL 1)
The means employed by aviation policy can be examined in the
light of the end that aState wishes to pursue through those
means, i.e. according to how effective they are in achieving that
end. Such means can also, however, be judged in themselves,
quite apart from the extent to which they contribute towards
any end envisaged by a particular State, and examined as to their
general effect.
For the first method of examination, it would be desirable to
make a preliminary investigation into the circumstances of each
individual State. In civil aviation, however, it is the international
effect of anational aviation policy measure which merits attention in the first place, independently of special national circumstances. We must bear in mind that, whether aState upholds a
system of reserving traffic to its own airlines, or of dividing traffic
up, or of the best possible order in international air communicamerits. Sovereignty over the air is of a special nature, and differs from sovereignty
over the sea (Prof. Goedhuis expresses a contrary view in his article referred to above).
P. Fauchille's theory of 1901: "l'air est libre", by analogy with the open sea as a
"res omnium communis", has therefore never acquired the force of internationallaw.
O. Riese in Lu/treckt, Stuttgart, 1949 (p. 73), says about this theory: "Dagegen
verscheiterte der Versuch, ihr auf der ersten diplomatischen internationalen Luft·
fahrtkonferenz in Paris (1910) bindende völkerrechtliche Kraft zu verleihen, am entschiedenen Widerspruch Grossbritanniens, das nicht gewillt war, seine insulare Unzugänglichkeit (splendid isolation) durch ein derartiges Anerkenntnis preiszugeben"
("On the other hand the attempt to give this theory the binding force of international
law at the first diplomatie international aviation conference in Paris (1910) foundered
on the resolute opposition of Great Britain, who was not prepared to give up her insular inaccessibility (splendid isolation) by making any such acknowledgement").
1) Quoted at Chicago Conference by F. H. LaGuardia, U.S. delegate, ap. cit.,
p.466.

30

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

tions, or of the greatest possible freedom of the air for all, or of
any other kind, in selecting the means for implementing this
policy the aviation countries will always be inspired by the desire
which lies concealed behind the fac;ade of all these aviation policies- the desire to promote the interests of their own national airlines in the most advantageous and effective manner 1).
We have therefore chosen the second method of examination,
after which it will be possible for the various courses leading to
the ultimate uniform goal of promoting the interests of each
State's own national airlines to be judged on their true merits,
i.e. in the light of their general effect, which in point of fact also
ultimately determines their particular effect on a given country.
The question is, therefore: What are the implications of the
various means employed by aviation policy since World War II, if
looked at from the international point of view?

A.

TYPES OF

AIR SERVICE

We have already noted the division into "scheduled" and "nonscheduled" air services, a distinction made in the Chicago Convention and later elaborated by the ICAO 2) in its definition of
the term "scheduled international air service". This definition,
together with an analysis of the rights under Article 5 of the Chicago Convention in the matter of non-scheduled flights, was originally evolved by the Secretariat of ICAO 3) at the request of the
ICAO Assembly (second session, Resolution A2-18, and fourth
session, Resolution A4-15 )made to the Council of that organization, and after being commented on by member States via the Air
Transport Committee, was adopted in modified form by the
Council; revision was to take place "if and when necessary in the
light of experience".
1) Fortunatelya numberofcountries recognize the truth of the words of Churchill
cited above, and see the international aspect as their primary interest.
2) ICAO Doc. 7278-C[841 of 10/5/52. For the previous history, see Doc. 7284C/843.
3) Cf. ICAO Doc. 6894-AT[694 of 26/8/49 (original draft by the ICAO Secretariat
of an Analysis of Art. 5 of the Convention).
See also ICAO Doc. 6895-AT/695 (Classification of International Civil Aircraft
Operations); Doc. 6850-C/797 (Statement by Council on Differences between Contracting States in categories and regulations applied to scheduled and non-scheduled international air transport); Doc. 7008-AT/702 of 27[5[50 (Comments of Contracting
States); Doc. 7576-C/880 of April 1955.

MEANS OF AVIATION POLICY

31

Article 6 of the Convention, which deals with scheduled air
services, leaves considerable freedom to States. On the other hand
Article 5, which deals with non-scheduled air services, requires
States to permit the exereise of 1st and 2nd freedom rights by
aircraft of the other contracting States, and to permit the exereise of commercial rights (3rd, 4th and 5th freedom rights) subject
to the possibility for States of prohibiting cabotage traffic and of
imposing "such regulations, conditions or limitations" as they
may consider desirable. This may not, however, be construed in
such a way that this important form of air carriage is thereby
rendered impossible or "non-effective" 1). A broad definition of
"scheduled air service" which limits the applicability of Article 5
thereby increases the control by States; but if Article 5 is interpreted restrictively, States reserve to themselves virtually complete control even over commercial non-scheduled flights. A
narrow definition of "scheduled air service" limits the control of
States over international air services, but only if a free interpretation is given to the text of Article 5. Theoretically, however, a
narrow definition of "scheduled air service" undoubtedly provides the greatest freedom for international flights 2).
Since ICAO's interpretation of Article 5 is not binding on
States, the definition of "scheduled air service" has in practice
only a relative value as a means of determining the extent of control
by States. The definition does, however, give States a means of
systematizing their aviation policy. This is necessary; for the
economic operation of regular air services is governed by different
factors from those governing non-scheduled services. And the
economic and political importance of scheduled services also
differs from that of non-scheduled services.
Scheduled air services are based on more or less constant
streams of traffic, whereas non-scheduled services aim to meet a
more temporary and occasional demand. Thus the non-scheduled
services can be regarded as complementing the regular services.
1) ICAO Doc. 7278-C/841 of 10/5/52, p. 12.
2) N.B. Art. 5 is in three parts: paragraph I gives freedom (a) to fly over territory
and (b) to land there, subject to the right of the State flown over to require landing,
though not until the aircraft has flown into the territory of that State; (c) paragraph 2

gives freedom, which may be conditional, to take on or discharge a commercialload,
conditions being attachable, however, only to the taking on and discharge of a commercialload and not to the carrying out of the flight itself. See ICAD Doc. 7278, pp.
8-9 (3) (b), and AT-WP/170, pp. 31-33.

32

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

In addition, the performance by a foreign airline of a nonscheduled flight affects the sovereignty of aState much less than
the performance by a foreign airline of regular flights to and
across its territory.
The two forms of air transport should not be detriment al to
each other, but should rather find their raison d'etre side by
side 1).
In order to arrive at the closest possible definition of the expression "scheduled air service" which would meet the abovementioned desideratum, the possibility of including the element
"irrespective of payload" in the definition was discussed as a
means of characterizing regular air traffic; this would mean that
services were operated even if no payload was available. The
consequence of including this element, however, on sectors where
a payload is always available (e.g. London-Paris, New YorkMontreal), would be that in practice an air service would be operating regularly, whilst in theory it could be described as irregular
because it did not satisfy the definition. F or it could be maintained
that the service was only operated when there was a payload.
Thus non-scheduled services would be entering the field of regular
air transport. Since in most cases scheduled air services are operated on the basis of permits embodied in bilateral aviation agreements, traffic could in this way, the terms of the definition being
cumulative, be regularly carried by third parties on the basis of
Article 5 of the Chicago Convention on the routes specified in the
agreements, or by the parties to such agreements on routes not
specified in the agreements, thereby circumventing those agreements.
For States who do not fear competition and who welcome any
1) CI., however, A. Keller, op. eit., p. 107, where the possibility of a "schematische
Lösung in Form einer Definition" (model solution in the form of adefinition) is
denied and an "empirische, elastische Lösung"(empirical, elastic solution) is advocated.
A guarantee that charter flights, at least, will not compete unfairly with the regular
services is to be found in the condition usually laid down with regard to such flights,
namely that the chartered capacity may not be sold to individual members of the
public except at the same rates as those applying to scheduled services. The relevant
condition generally laid down by the Netherlands with respect to non-scheduled
flights is: "Foreign air carriers when operating non-scheduled commercial flights with
stops for traffic purposes in the Netherlands in so far as these flights are open to use
by individual members of the public, will set rates equal to those applicable to the
transportation of passengers and cargo (per unit of weight) on a scheduled service on
the relevant route section." (CI. also ICAO Doc. ECAC/I/-WP/II of 7/9/55).

MEANS OF AVIATION POLICY

33

enlargement of the possibilities of carrying out commercial flights,
especially on sectors with heavy traffic, the inclusion of the "irrespective of payload" element would have been possible and desirable, since this element is an unmistakable feature of regular air
carriage and its inclusion would have helped to make the distinction clear. In any case, however, conditions would then have had
to be laid down in the matter of rates for all those airlines which
are not members of IATA, the international organization of the
majority of airline companies, which has fixed rates that are
bin ding on its members, quite independently of the distinction
between "scheduled" and "non-scheduled" flights 1).
A clear distinction between "scheduled" and "non-scheduled"
air services is desirable in the interests of an orderly development
of civil aviation 2), particularly in view of the differing nature of
the two forms of air transport. Since non-scheduled air transport
does not make such deep inroads into the sovereignty of States,
Article 5 of the Convention gives greater freedom to this kind of
carriage than Article 6 gives to scheduled air traffic, for which the
previous permission of the State concerned is always required.
Whilst in practice this permission under Article 6 is for the most
part embodied in bilateral aviation agreements, subject usually to
one year's notice of withdrawal, the practice in the case of nonsclreduled flights is for each State to lay down unilateral national
regulations governing the operation by foreign airlines of such
flights across, to and from its own territory. Bilateral arrangements for non-scheduled air traffic are rather sporadic 3). The
unilateral regulations are based on Article 5 of the Convention,
which enables States to impose "regulations, conditions or limita1) CI., for instance, incIusive tours on a charter basis, which are made possible
under Res. 045 of the IATA. (Venice, October 1954). Such "pro·rated" charter flights,
on which the individual passengers pay a fare, are performed only if sufficient payload
is available and would therefore be considered as non-scheduled flights.
2) CI. Res. AI0-32 (6) and Doc. AIO-WP/148, P/15, 16/7/56.
8) e.g. Between the Netherlands and the V.K. (provisional arrangement)
Between France and the V.K. (1950)
Between the V.K. and Switzerland (1952)
Between France and Spain (1948)
Between France and Italy (1949)
Between Spain and Italy
N.B. The bilateral air agreement between France and Western-Germany (1955)
regulates both scheduled and non-scheduled services, a system which France especially seems to have adopted.
For the unilateral regulations, see p. 9, note 4, above.

34

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

tions". States are not entirely free, however, in the imposition of
conditions. Thus, for example, no restrictions could be imposed
on the basis of the origin or destination of traffic, since the express
mention in the Artic1e of a possible ban on cabotage would then
be entirely superfluous 1). Moreover, as already observed, the
imposition of restrictive conditions must not render non-scheduled
traffic impossible or "non-effective". Furthermore, aState may
not prohibit a commercial non-scheduled flight as such, but only
regulate the picking up and setting down of a commercial load
on its territory 2).
It is, incidentally, questionable whether a ban is possible under
the wording of the second paragraph of Artic1e 5. The question is
whether previous permission may be required by States (i.c. with
the implicit possibility of a ban). It can be contended, in view
also of the express mention of Artic1e 7, that the second paragraph
of Artic1e 5 implies general permission to take up and set down
commercialloads on non-scheduled flights, with only the possibility of refusing this right in certain cases. The "regulations, conditions or limitations" would thus necessarily be intended mainly
to enable the State to judge each separate flight on its merits,
that is, as a non-scheduled flight. AState could then, for instance,
require prior notification of commercial non-scheduled landings
to be made on its territory. In practice, however, States mostly go
much further in the imposition of conditions.
In many countries, these consist in previous permission being
required for commercial non-scheduled flights. Applications for
such permission, sometimes even to be submitted through diplomatie channels, by the country of registration of the aircraft
often have to be made some considerable time before the flight
takes place, stating particulars of the flight, such as type of aircraft, registrationmarks, operating company, flight schedule, load
to be carried, origin and destination of load, name of charterer or
1) Cf. also the International Standard for facilitation, Annex 9 to the Chicago
Convention, Amendment 2, May 1956, § 2.15.1, in which it is said that Contracting
States should not require more than the following details in the applications for nonscheduled flights: "iv) Place or pI aces of embarkation or disembarkation abroad, as
the case may be, of passengers andjor freight"; etc.
2) It may be observed that, besides non-scheduled flights, deviations from scheduJed
flights entail "non-scheduled landings" for which in practice separate previous permission is often required, unless such landings are covered by the relevant aviation
agreements.

MEANS OF AVIATION POLICY

3S

copy of charter contract in the case of a charter flight, and sometimes other information. This time-consuming procedure is at
variance with the character of non-scheduled flights, which frequently have to be carried out at very short notice 1). The uncertainty as to whether permission will be granted places the
operation of non-scheduled flights on an unstable economic basis.
It would, therefore, seem that the requirement of prior permission is contrary to Article S 2).
The U.S.A. has a system all its own. Airlines authorized by the
CAB to carry on "common carrier operations" 3) over certain
specified routes are not restricted as regards the frequency of
their flights over those routes.
N on-scheduled flights which follow these routes, or which do
not serve any places other than those named in the permit, are
allowed without further formality as "extra sections" under the
same permit.
Non-scheduled flights constituting "charter flights and special
services" are also permitted if flown along the same routes. These
flights must, however, satisfy certain requirements with respect
to the charter or underlying agreement, whilst the rates must
correspond with those previously filed for each specific routing.
Any other "common carrier operation" requires separate prior
approval by the CAB.
For "non-common carrier operations", whatever the route
followed, no commercial permit is required; but the operations of
a "common carrier" will almost always be classified as "common
carrier operations", so that such cases seldom or never occur 4).
1) CI. § 2.15. Amendment 2, Annex 9, Chicago Convention, May 1956.
') See p.39, note I. The Canadian regulations stipulate a "primary right" of the
Canadian carriers to uplift or set down loads on Canadian territory on international
charter flights to or from countries having concluded an air agreement with Canada
or having a regular air connection by Canadian carriers. This implies the necessity of
a "no·objection" certificate from the Canadian carriers as weIl as from the carriers of
such countries in cases of charter flights by carriers of third countries wishing to uplift
or set down loads in Canada.
There is clearly no justification for such a "primary right" but short-sighted seltinterest.
3) Under s. 402 of the Civil Aeronautics Act of 1938, as amended, the CAB may
grant foreign airlines permission "to engage in foreign air transportation". S. 1(21) of
the Act lays down that "foreign air transportation" is carriage "as a common carrier".
Finally, s. 1(19) defines "foreign air carrier" by using the term "foreign air transportation" .
4) "Non-common carriage" (i.e. charter carriage, contract carriage, private carriage(
exists only when there is absolutely no question of "holding out to the general public,

36

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

The distinction between "scheduled" 1) and "non-scheduled"
flights therefore has little practical value in the U .S.A. for foreign
airlines which, like the K.L.M., are classified as "regular carriers".
"Irregular (non-certificated) carriers", on the other hand, may
only carry out "non-scheduled" flights, i.e. flights lacking any
reasonable degree of regularity. All these provisions are embodied
in the numerous "Economic Regulations" of the CAB 2).
The attempts of the CAB to define "common carriage" satisexpressly or by a course of conduct", that carriage is being offered. It should be noted
that in the case of "charter trips and special flights" carried out by foreign airlines (if
they constitute "off-route" operations), the CAB in practice adopts a liberal attitude
by regarding such flights as "non-common carriage" under s. 6{b) of the Air Commerce Act, since there is no question of "holding out to the general public" because
no rates have been filed for these flights outside the regular CAB permit. This policy
is adopted by the CAB in order to avoid discrimination between American and foreign
airlines, American "certificated" airlines being at greater liberty, under s. 401{f) of
the Civil Aeronautics Act of 1938, to operate "off-route charter trips and special
services". Since the end of 1953, however, the CAB has been looking for a different
system which will be more in accordance with the law. (Cf. proposed Part 212 of the
Ec. Regulations, concerning off-route charter trips by foreign air carriers, 1956).
1) See, for instance, Part 190 of the CAB's Civil Air Regulations, as adopted on
26th February, 1954, in which reference is made, in para. 2{e), to the definition of
"scheduled international air service" in lCAO Doc. 7278-C(841 of 10(5(52. N.B. Part
190 was adopted after the President of the U.S., on 8th August, 1953, had approved
an amendment to the Air Commerce Act of 1926 whereby the responsibility of the Civil
Aeronautics Administration for issuing "foreign civil aircraft flight permits" (which
also cover "non-common carriage", unlike the "foreign ai~ ca~~ie~ permits" issued by
the CAB for "common carriage") was handed over to the CAB.
2) See, for instance, Parts 207, 291 and 295--298 of the Board's Economic Regulations. In 1950 the CAB established the criterion: not more than eight flights in four
weeks over one and the same route in each direction. 11 CAB 609 (1950), 619. On 15th
November, 1955, the CAB authorized 49 "Large lrregular Air Carriers", with effect
from 1(1(56, "to operate a maximum of ten flights per month for individually
ticketed passengers, between any pair of points in domestic transportation" and "unlimited charter services", the latter inc1uding international services. At the same time
the CAB altered the designation by speaking of "Supplement al Carriers", thereby for
the first timerecognizing the "supplemental role for non-skeds" (see "American Aviation Daily", 16th and 17th November, 1955, and the "Large lrregular Air Carrier lnvestigation", Docket 5132). This radical decision, which by blurring the dividing-line
between the operations of irregular and certificated carriers seems to be undermining
the entire system of the Civil Aeronautics Act, illustrates inter alia the importance of
the defence argument in the U.S., where the important part played by irregular
carriers in the Berlin blockade and the Korea conflict has not been forgotten. For the
sake of completeness it should be noted that "irregulars" still do require special
exemption by the CAB for international passenger services.
On December 30th, however, the CAB issued a Stay Order as "military and foreign
affairs matters may be affected by our action", which necessitated consideration by
the President. The Stay Order involved ouly the international operations, as authorized under the new ruling. (Cf. Docket 5132 et. al.) See, however, also p. 8 note 4
above : on that occasion the Court wiped out the 10 flights a month rule and the right
to advertise regular scheduled services.

MEANS OF AVIATION POLICY

37

factorily encountered as many difficulties, particularly in connection with charter operations, as ICAO's attempts to define the
expression "scheduled air services". Moreover, the CAB was
faced with the problem of defining the term "irregular transport",
as used in Part 291 of its Economic Regulations.
Under the U.S. system, foreign airlines are confined, as regards
both their "scheduled" and their "non-scheduled" common carriage, to certain routes as authorized by the CAB "in the public
interest" 1), on the basis of the mere division into "common"
and "non-common" carriage.
This restriction is intended to protect them against too much
competition from other airlines. The CAB thus "divides" the
various routes between the airlines 2), allowing only a limited
number of airlines on one and the same route, but at the same
time being on its guard against monopolies.
In this way, the U.S. is trying to create order in the air. At
Chicago, the Chairman of the U.S. Delegation had already observed:
Lest there be disorders in the air, lest every airline become
simply a wandering congeries of planes seeking to enter and
depart, perhaps in regions where there is no real justification,
and bearing in mind that the primary right is the right of a
country to communicate with and have commerce with its
neighbors, the suggestion was made that air routes be planned
in a reasonably direct route from the homeland of origin to
the terminus of the route - "reasonably direct" being, of
course, interpreted to mean "reasonably direct geographically" 3), given the necessities of air traffic, and with reasonable
adjustment to the main traffic centers along the route 4).
Whilst recognizing the theoretical merits of the conclusions
drawn by the U.s. from such reasoning, we should nevertheless
bear in mind that in practice the planning of aviation along these

s. 402(b), Civil Aeronautics Act of 1938.
2) Cf. s. 2, para. (d), of the Civil Aeronautics Act of 1938.
N.B. Another "division" is the one based on reciprocity. See p. 64, note 2 below,
and p. 17, note 3, above.
3) In the IATA rate regulations a 15% deviation is the maximum tolerated. Cf. also
the Netherlands view: "Routes should be reasonably direct, not on purely geographical
considerations, but including operation al and commercial considerations".
ICAO Doc. A7-WP/300 of 2/1/53, p. 12 (similarly ICAO Doc. A7-WP/7 EC/2 of
26/3/53, p. 11). See also Int. Air Transport Agreement, Art. I, sect. I.
4) A. Berle, op. eit., p. 448.
1)

38

POST-WAR INTERNATIONAL CIVIL AVIATION POLICY

lines does not take sufficient account of the economic conditions
necessary for profitable operation by the airlines, which consist
mainly in the possibility of free and independent adjustment to
the variable traffic offering on the various routes 1).
A reconciliation between "freedom of the air" and "order in the
air" should not, therefore, in our view, be sought in a sharing-out
of "reasonably direct" routes or in any other form of distribution
which is based, in the last resort, on a preconceived allocation of
commercial rights. The profit ability of an airline's operation of a
route, after a certain trial period, shouldbe sufficient justification
for granting that airline freedom to exercise the necessary rights
on a more permanent basis 2).
There are, however, "long-haul carriers" - airlines engaged
in long-distance carriage - and "short-haul carriers" - airlines
which confine themselves to short-distance carriage.
Owing to the relatively more unfavourable position of the latter
in competition with the long-haul carriers, States are inclined to
take special protectionist measures in order to ensure the profitability of the services of their own short-haul carriers.
During the eighth General Assembly of IATA at Geneva on
19th September, 1952, a resolution (No. XI) on this subject was
rightly adopted, in which such protection of any airline by governments was condemned as being an obstacle to the steady development of international civil aviation in the interests of the public
and the aviation industry.
Whilst recognizing the usefulness of the numerous distinctions
that can be made between types of airline and types of air service
in order to trace the characteristic features of civil aviation
(regular carriers and irregular carriers; long-haul carriers and
short-haul carriers; regular transport and irregular transport;
common and non-common carriage; trunk services and local/
1) Cf. the Report of the President's Air Co-ordinating Committee of May 1954 on the
Civil Air Policy of the U.S.A. (p. 8), which states that as a remedy against the need for
subsidizing airlines "the most economic route pattern" must be sought. Whilst it is
considered that "the attainment of self·sufficiency will probably be retarded in international operations for many reasons beyond the control of the industry or the
government" (this is a reference to foreign competition), the elimination of uneconomic
competition is further recommended.
2) Cf. the principle of the "full-plane c1ause" or "escalator c1ause" - "arrangements
designed to take care that countries do not simply send fleets of empty planes, uneconomic in themselves and supported by subsidies" (e.g. for reasons of prestige).
Op. eit., p. 448. See also below, p. 48.

MEANS OF AVIATION POLICY

39

regional services; scheduled and non-scheduled services, the latter
being further divisible into numerous kinds 1)), and quite apart
from the difficulty of finding satisfactory definitions for the
various distinctions, we are of opinion that no argument should
be sought in these distinctions for limiting the freedom of the air.
Nevertheless, and without prejudice to that freedom, these distinctions are a useful means of promoting the efforts to create
order in the air. If the characteristics of, in the first instance,
scheduled air traffic and the conditions for its development, and
on the other hand those of non-scheduled air services, can be
successfully embodied in a practical and generally acceptable definition based on the experience gained, an important step will
already have been taken along the road to order in the air, thereby considerably reducing the need for a number of the present
restrictions imposed as a matter of aviation policy 2). The distinctions to be made according to divergent characteristics - including in the second instance, that between long-haul and shorthaul carriers - must then be seen as "rules of the game", necessary in order to be able to play the game, but not intended to
obstruct the game. So far distinctions have not, however, been
made for any truly constructive purpose.
Finally, it should be noted here that the Chicago Convention
grants rights to aircraft, not to the owners or operators of aircraft. But to make the nationality of the aircraft the sole criterion
does not seem to be entirely justified as soon as there is a question
of commercial rights; this applies, therefore, to Article 5, second
paragraph, and Articles 6 and 7. The granting of commercial
rights under Article 6, whether in bilateral aviation agreements or
otherwise, is made to airlines. The criterion of nationality is introduced in such cases via the "substantial ownership and effective
control" clause, with which the airline(s) exercising the rights
granted must comply 3). This question of principle, concerning
1) See