International Civil Aviation

The idea of freedom to fly over other countries is based on a principle published in 1609 by Hugo Grotius defending the right of the Dutch India Company to trade in the Far East. Called Mare Librium (freedom of the seas) it stated that any country could sail on the seas without restrictions by other nations. The work of Grotius and of others like him formed the basis of much modern international law.

The question of national air space first arose when balloons were used during the Franco-Prussian war in 1870-71. After the war, opinion was divided as to whether the air should be treated like the high seas, free for the use of all, or whether a nation should be able to control who used it. The issue became relevant to powered flight in 1909, when the French pilot Louis Blériot crossed the English Channel to England. The next year, in 1910, an international conference of diplomats in Paris failed to reach an agreement on the question.

In 1911, the British Parliament passed the Aerial Navigation Act, giving Britain the power to close British airspace, including parts of the English Channel, to all foreign aircraft. At that time, Europe was preparing for war and many European countries passed similar legislation.

After World War I, 26 countries met in Paris in 1919 and drew up the Convention Relating to the Regulation of Air Navigation. They voted to give each nation “complete and exclusive sovereignty over the airspace above its territory.” Neither the United States nor Russia signed the agreement. The delegates also established the International Commission on Air Navigation (ICAN) as a forum to discuss the rules for allowing foreign aircraft to use sovereign airspace.

The U.S. government independently began to develop agreements with one country at a time, called bilateral agreements. These agreements allowed U.S. airliners to land at particular cities in other countries for fuel and to unload and board passengers. They also allowed other countries' airlines to land in American cities.

Individual U.S. airlines also negotiated agreements without government help. The founder of Pan American Airways, Juan Trippe, negotiated the right for his airline to land in many Caribbean and South American countries and the right for Pan Am to use its own money to build air navigation aids and airports abroad. These agreements saved the U.S. government the cost of paying for these facilities and also from having to grant similar rights (called reciprocal rights) to other countries.

In 1919, six European airlines formed the International Air Traffic Association (IATA) to help airlines standardize their paperwork and passenger tickets and also help airlines compare technical procedures. The IATA also created some common rights for passengers, such as the right to be paid if an airline caused a passenger loss, damage, or death.

The Havana Convention on Civil Aviation was drawn up in 1928, and ratified in February 1931, by the U.S. Senate. Agreed to by 21 Western Hemisphere countries, the convention guaranteed the right of innocent passage of aircraft and formulated the rules for international air navigation between the contracting states relating to aircraft identification, landing facilities, and standards for pilots. It also stated the right of each country to set the route to be flown over its territory.

In 1929, delegates to the Warsaw Convention, which included the United States, agreed to limit passenger compensation for loss of property or harm to a passenger by an airline to $8,300. This amount was measured using gold based on the value of the French franc.

Into 1944, the United States continued to negotiate bilateral agreements on behalf of its airlines and to grant reciprocal rights to individual countries. Airline companies continued to make agreements as well. On November 1, 1944, representatives of more than 50 nations convened the International Civil Aviation Conference to discuss multilateral agreements—simultaneous agreements among many countries. On December 7, 1944, delegates adopted the Chicago Convention, a landmark compromise consisting of two freedoms of the air as well as many other provisions. The first freedom was the right to fly over another country without landing. The second freedom allowed a plane to stop for fuel or repairs without boarding or leaving passengers or cargo. The delegates also debated but did not agree on additional freedoms.

The delegates also drafted an International Air Transport Agreement, which the United States rejected because it disagreed with the wording on “cabotage” relating to the transport of passengers and cargo between two points within a country by airlines of other countries.

The Chicago Convention also established a provisional International Civil Aviation Organization (PICAO) for governments and an organization that would become the International Air Transport Association (IATA). The PICAO operated until the permanent ICAO was established and affiliated with the United Nations in 1947. The PICAO, and later the ICAO, and the IATA would rule on matters such as safety standards, navigational controls, and air maps. The setting of international airfares was reserved for the IATA.

Delegates to the Chicago Convention used unclear language to define the terms in their agreements because they wanted to be flexible for future agreements. This ambiguity led each country to interpret the agreements differently. For decades, the ICAO would meet again and again to debate standards for airports and to create and enforce rules to keep passengers and aircraft safe.

The next year, in April 1945, delegates from more than 40 airlines met in Havana, Cuba, and created a voluntary organization, the International Air Transport Association (IATA) to prevent airlines from practicing unethical methods of setting rates and schedules. IATA succeeded the International Air Traffic Association, which had been formed at The Hague in 1919.

In 1946, delegates from the United States and Great Britain met at Hamilton, Bermuda, to resolve issues remaining from the 1944 Chicago meeting. In the ensuing Bermuda Agreement, the two countries agreed again on the two freedoms that had been accepted at Chicago. Further, Britain agreed to the remaining three freedoms that had been unsuccessfully pursued in Chicago. The third and fourth freedoms granted the right to collect passengers or cargo in an airline's home country for flight to another country and to discharge passengers or cargo at another country's airport. The fifth freedom concerned the right of an airline to collect passengers or cargo at a location outside its home country and fly them to a point father on, also outside the airline's home country. The United States also agreed that the IATA would set fares, subject to the two governments' approval. This bilateral agreement became the model for a series of future bilateral agreements between the United States and other countries.

The United States threatened at a 1955 meeting in The Hague, Netherlands, to drop out of the 1929 Warsaw Convention, holding that the Warsaw Convention monetary limits on liability were too low to encourage foreign airlines to make aircraft safer. Third World countries, on the other hand, thought the allowed monetary amounts were too high. In the next three decades, the limits were raised several times until 1996, when most carriers agreed to drop limits on damage payments completely.

On July 23, 1977, Britain and the United States signed the Bermuda Two Agreement to restrict the number of airline seats available on flights between the countries and to introduce more airlines and some new routes, thinking that more competition would mean lower airfares.

Since the 1944 Chicago Convention, the IATA had set international airfares. In 1980, after the U.S. Civil Aeronautics Board, had argued that the IATA was illegally fixing airfares and had blocked American participation in IATA agreements, IATA review of airfares became voluntary. The IATA still holds conferences to review airfares, to ease the connections of passengers and cargo, and to help make airline documents standard. The United States has often said that it will withdraw the memberships of its airlines if the IATA acts to set prices, which it calls a cartel.

The ICAO is working toward standard aviation laws around the world. But generally, the laws of each country still apply with regard to foreign aircraft being admitted past its borders. When flying into a foreign country, the airline must follow that country's rules about use of air traffic control services, ground services, sanitation and environmental requirements, and the rights of airline passengers in case of loss, theft or accident.

Airlines still cannot offer service in other countries unrelated to picking up or dropping off international passengers, but by February 1996, the U.S. Department of Transportation had reached agreements for “open skies” with 10 European nations for unrestricted flights to and from those countries. America continues to work toward similar agreements worldwide.

References and Further Reading

Burkhardt, Robert The Federal Aviation Administration. New York, Frederick A. Praeger, 1967.

Churchill, R.R. and Lowe, A.V. The Law of the Sea. Manchester, England: Manchester University Press, 1983.

Diederiks-Verschoor, I.H.Ph. An Introduction to Air Law. 2nd Revised Edition. Antwerp: Kluwer Law and Taxation Publishers, 1985.

Johnson, D.H.N. Rights in Air Space. Manchester, England: Manchester University Press, 1965.

O'Connor, William E. An Introduction to Airline Economics, Fifth Edition. Westport, Connecticut, Praeger, 1995.

Sochor, Eugene The Politics of International Aviation. Iowa City, Iowa, University of Iowa Press, 1991.

Solberg, Carl. Conquest of the Skies: A History of Commercial Aviation in America. Boston: Little, Brown and Company, 1979.

Taneja, Nawal K. U.S. International Aviation Policy. Lexington, Massachusetts: Lexington Books, D.C. Heath and Company, 1980.

Wassenbergh. H.A. Post-War International Civil Aviation Policy and the Law of the Air. 2^nd Revised Edition. The Hague: Martinus Nijhoff, 1962.

Whitnah, Donald R. Safer Skyways: Federal Control of Aviation, 1926-1966. Ames, Iowa: The Iowa State University Press, 1966.

Articles about the history of international civil aviation. http://www.icao.int/cgi/goto.pl?icao/en/history.htm. (requires free DjVu viewer)

FAA Historical Chronology. http://www.faa.gov/docs/b-chron.htm

“History of ICAO.” http://www.icao.int/cgi/goto.pl?icao/en/history.htm

“International Aviation Competition Issues.” Statement of John H. Anderson, Jr., Director, Transportation Issues, Resources, Community, and Economic Development Division, General Accounting Office. June 4, 1997. http://ntl.bts.gov/data/GAO/rc97103t.pdf.