POST-WAR INTERNATIONAL CIVIL AVIATION POLICY AND THE LAW OF THE AIR POST-WAR INTERNATIONAL CIVIL AVIATION POLICY AND THE LAW OF THE AIR H. A. WASSENBERGH 2nd revised edition 1lIE HAGUE MARTINUS NIJHOFF 1962 ISBN 978-94-015-0291-7 ISBN 978-94-015-0818-6 (eBook) DOl 10.1007/978-94-015-0818-6 Copyright 1962' by Martinus Nijhoft. The Hague. Netherlands All rights reserved. including the right to translate or to reproduce this book or parts thereof in any form To the memory of ALBERT PLESMAN FOREWORD Civil Aviation has become a public utility service. SALVATORE TOMASINO I} Although civil aviation has enjoyed unflagging public 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 political and economic considerations which 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 political, strategic, 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 economic nationalism, States have nevertheless directly and indirectly 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 arise 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; ct. L'Economie IntemationaJe, No. 6-7; June/July 1953, Vol. XIX, p. 39. See 'p. 164, below. I) Ct. o. J. Lissitzyn, International Air Transport and National Policy, New York 1942, pp. 409 and 55. VIII FOREWORD world, in the hope that this will contribute towards a reconcilia tion 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 PIes man, the former President of the K.L.M.: "The air unites all peoples." Scheveningen, 3Ist December I956 FOREWORD TO THE SECOND EDITION It was found that the interest shown in the first edition, which was soon sold out, warranted republication. Since the date of the first edition a number .of important developments have taken place in matters of civil aviation policy and with regard to the legal basis of international civil air transportation. References to these new developments, up till October 1961, have been included in the present revised edition.to which a new Chapter XI has been added. The advent of the jet age has greatly stimulated air transpor tation, but at the same time it has caused many nations to adopt an increasingly reserved attitude towards the granting of the necessary traffic rights to foreign carriers. Competition has become severe. New nations claim their rightful place in the air. Commercial airline operation faces the problem of the enormous investments required for the operation of jet aircraft. These factors together have prompted a number of airlines to seek closer co-operation in order to reduce the costs of their operations, to eliminate competition between them and to become more competitive with other airlines. Moreover, the tendency among nations to try to solve their civil aviation problems by forming regional groups, has become stronger. A wave of protectionism threatens to engulf civil aviation. Let us hope it will not drown commercial air transportation. The Hague, 1962: LIST OF ABBREVIATIONS AGM Annual General Meeting ARB Air Research Bureau (Brussels) CAB Civil Aeronautics Board (U.S.) CATE Conference on the Coordination of Air Transport in Europe (1954) CO COLI Commission on Coordination and Liberalization ECAC European Civil AViation Conference EEC European Economic Community lATA International Air Transport Association (Montreal) ICAO International Civil Aviation Organization (Montreal) ICC International Chamber of Commerce (Paris) ILA International Law Association ITA Institut du Transport Aerien (Paris) MTCA (MOA) Ministry of (Transport and Civil) Aviation (U.K.) NJ B N ederlands J uristenblad OEEC Organization for European Economic Cooperation PICAO Provisional International Civil Aviation Organiza tion RCAC Regional Civil Aviation Conference RGA Revue Generale de l' Air (France) Airlines ALITA LIA Aerolinee Italiane Internazionali AV ENSA Aerovias Venezolanas S.A. BEA British European Airways Corporation BOAC British Overseas Airways Corporation CP AL Canadian Pacific Airlines DLH Deutsche Lufthansa Aktien Gesellschaft KLM KLM Royal Dutch Airlines - Koninklijke Lucht vaartmaatschappij N.V. LACSA Lineas Aereas Costarricences S.A. PAA (PANAM) Pan American World Airways Inc. SABENA Societe Anonyme BeIge d'Expioitation de Ia Naviga- tion Aerienne SAS Scandinavian Airlines System SWISSAIR Swiss Air Transport Company Ltd. TAl Transports Aeriens lntercontinentaux TAP Transportes Aeros P'?rtugueses TCA Trans Canada Airlines UAT Union Aeromaritime de Transport CONTENTS Foreword VII List of 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 III. PROBLEMS IN THE FIELD OF AVIATION POLICY 21 IV, MEANS OF AVIATION POLICY 29 A. Types of Air Service 30 B. Multilateral Convention 40 C. Capacity 46 D. The Bermuda Principles 53 E. Bilateral Aviation Agreements 61 F. Cabotage - Grand Cabotage - 6th Freedom 69 V. INTEGRATION OF AVIATION 75 PART II THE LAW OF THE AIR VI. INTERNATIONAL LEGAL NORMS WITH RESPECT TO CIVIL AVIATION 99 A. Sovereignty in Airspace 100 B. The Right of Innocent Passage 107 C. The Right to Air Transportation 109 D. The Right to Exploit the Aerial Highway 114 XII CONTENTS E. The Norms with respect to Non-scheduled Air Transportation 117 F. The Norms with respect to the Various Kinds of Traffic 119 VII. THE MERITS OF TRENDS IN AVIATION POLICY 124 VIII. A NEW BASIS FOR INTERNATIONAL AVIATION POLICY? 132 IX. FUTURE PROSPECTS 149 X. THE POSITION OF THE NETHERLANDS 158 XI. SPECIFIC DEVELOPMENTS IN REGARD TO AVIATION POLICY AND ITS LEGAL BASIS 166 A nnex Relevant Articles of the CONVENTION ON INTER NATIONAL CIVIL AVIATION 182 Index 191