Access to Foreign Airspace - The First and Second Freedoms of the Air and their Non-Aviation Related Denial

摘要

The Convention on International Civil Aviation of 1944 deals primarily with technical and operational matters of international civil aviation. The insistence by the States congregating at Chicago in 1944 on State sovereignty over their territorial airspace and corresponding denial of the freedom of innocent passage raised, however, concerns of impediments to development of international aviation in the post-war era. The delegates drafted two supplementary agreements aimed at ameliorating such effects. The Transit or Two Freedoms Agreement has since attracted a large number of signatories though certain States with large territories have opted out of it. The basis in support of opt-out has since been doubted. Indeed, certain States have either abused their opt-out or ignored adherence to the Transit Agreement when political or strategic convenience calls. The boldness of contracting States to the Transit Agreement to close their airspace in a discriminatory manner and in breach thereof is fortified by the seemingly lack of legal, particularly under the Agreement or Convention, or practical recourse by the State whose access to foreign airspace is denied. It, therefore, provides another basis for the call for reform of the Convention to deal with resolution of disputes concerning economic rights.