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Nationality and Registration of Aircraft Operated by International Operating Agencies and Article 77 of the Convention on International Civil Aviation, 1944*

Published online by Cambridge University Press:  09 March 2016

Gerald F. FitzGerald*
Affiliation:
International Civil Aviation Organization, Institute of Air and Space Law, McGill University
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Extract

The desire of many new states to have international air services of their own in an era of high-cost aircraft is imposing great pressure on traditional concepts of nationality and registration of aircraft. It has long been held that civil aircraft must have a nationality, that they must be registered in a state and that they must have the nationality of the state of registry. As the plan of the new states concerned is to have the international air services in question furnished through international operating agencies established by them and owning aircraft registered on other than a national basis, it is not surprising that this plan is currently the object of serious study. In particular, the International Civil Aviation Organization (ICAO) has established a legal subcommittee to study problems of nationality and registration of aircraft of international operating agencies arising in relation to the application of Article 77 of the Convention on International Civil Aviation, opened for signature at Chicago on December 7, 1944.

Type
Notes and Comments
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1967

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Footnotes

*

This note was written in a private capacity; responsibility for the opinions expressed is the author's.

References

1 These states have banded together in various organizations or are discussing the possibility of establishing regional airlines. As early as 1959 the League of Arab States was discussing the possibility of establishing a Pan-Arab Airline and a number of the Arab states signed a Convention at Baghdad on April 17, 1961 for the purpose of establishing such an airline. An example of a multinational airline is Air Afrique which was established by a number of French-language African states under the Treaty relating to Air Transport in Africa, opened for signature at Yaounde, on March 28, 1961. There have also been discussions concerning the establishment of a multinational airline in East Africa as well as one in West Africa. (See Doc. 8572, A16-P/1 April 1966 Annual Report of the Council to the Assembly for 1965, at 22–23.) The Addis Ababa Conference, jointly convened by the International Civil Aviation Organization (ICAO) and the Economic Commission for Africa (ECA) in November 1964, examined the possibility of establishing a single Pan-African airline to operate all international air services within, or to and from, Africa. This course of action was generally recognized at the Conference to be premature, although it was agreed that the establishment of such an airline should be considered at some future date. The Conference did recognize that the development of African air transport requires planning and organization on an international basis and that the first objective should be the establishment of multinational sub-regional airlines. (ICAO Doc. 8462-AT/719 ECA Doc. E/CN. 14 TRANS/26, at 8–9).

2 Here are examples of the cost of some large aircraft of the present and future: Boeing 707 — $7,250,000; Concorde—-$14,000,000; Lockheed L-500 — $27,500,000; American Supersonic Transport—$35,000,000 (the final figure may be higher). The hypersonic aircraft of the distant future could cost $60,000,000. (See (1967) 22 Interavia 174).

3 The concept of the nationality of aircraft was accepted at an early date in the history of flight by heavier-than-air aircraft. For example, the draft international convention on air navigation drawn up at the International Conference on Air Navigation held at Paris in 1910, contains a chapter concerning the nationality and registration of aircraft. See Roper, A., La convention internationale du 13 octobre 1919 portant réglementation de la navigation aérienne 212–13 (Paris, 1930).Google Scholar The passage of time did nothing to weaken this concept. Hence, shortly after the Convention on International Civil Aviation had been drafted in 1944, one commentator stated that: “It is idle to suppose that a concept as powerful as nationality can be disposed of merely by demonstrating that the Convention could be more conveniently administered without it” and again “… the existing law provides no status whatever for any but national aircraft of a contracting state.” See Jennings, R.Y., “International Civil Aviation Organization,” (1945) 22 Brit. Y.B. Int’l L. 207–08.Google Scholar In 1960, the Office of Legal Affairs, United Nations, informed ICAO that aircraft used by the United Nations continued under national registration and displayed national registration marks. When any particular aircraft was required, it was either chartered by the United Nations or made available by a government at the request of the United Nations: (ICAO PE–77/WD No. 3 16/5/60). An exception was the case of an aircraft used to service the supply and personal requirements of the United Nations Commission in Korea. It was owned by the United Nations and, until it crashed in May 1951, was operated without any national registration and bore only United Nations markings: (ICAO PE–77/WD No. 3 Addendum 30/5/60). In a report to the 8th Session of the International Law Commission, J. P. A. Francois mentioned the case of ten fishing vessels owned by the United Nations having been navigated from Hong Kong to Pusan under the United Nations flag: 1956 II Yearbook of the International Law Commission 102–03 (A/CN.4/SER.A/ig56/Add. i), A/CN.4/103 and ICAO PE-77/WD No. 4 18/5/60.

4 Convention relating to the Regulation of Aerial Navigation (Paris, 1919), Article 6: 11 L.N.T.S. 173 ; Convention on International Civil Aviation (Chicago, 1944), Article 17. For more information concerning the Chicago Convention, see infra note 8.

5 Ibid.

6 This is the proposal regarding the Pan-Arab Airline: “According to the said Convention, the Pan-Arab aircraft [are exclusively owned by] the said Airline which has a separate legal personality and legal status from those of the member States. So it is impossible due to this reason to register the aircraft of the Pan-Arab Airline in any member State.” See LC/SC Article 77/WD No. 10, 9/1/67, at 2.

7 Doc. 8470-C/955, Action of the Council, 53rd Session, 19.

8 The text of the Chicago Convention will be found in [1944] Can. T.S. No. 36; 61 Stat. 1180; T.I.A.S. 1591; 15 U.N.T.S. 295. This Convention is the constituent instrument of the International Civil Aviation Organization, a specialized agency in relationship with the United Nations. As at June 1, 1967, ICAO had 114 member States.

9 LC/SC Article 77/Report 7/2/67. The main documents produced in connection with the various ICAO studies of the problems of nationality and registration of aircraft operated by international operating agencies are: (1) Air transport Committee: C-WP/2284 15/11/1956; (2) Panel of Experts (1960): C-WP/3091 24/2/60, PE-77/WD Nos. 1–18 and PE-77/Report 30/6/60 (hereinafter cited as “Report (1960)”); C-WP/3186 25/8/60; Doc. 8106-C/927 Council, Minutes of 41st Session, Meetings 3, 8, 9 and Doc. 8124-C/928 Action of the Council, 41st Session, 31–34; (3) Subcommittee on Problems of Nationality and Registration of Aircraft Operated by International Agencies (also known as “Sub-committee on Article 77”): C-WP/4115 1/12/64 & Corrigendum; Doc. 8470-C/955, Action of the Council, 53rd Session, 19; LC/SC Article 77/WD Nos. 1–5; Discussion Papers 1–3 and LC/SC Article 77/ Report 24/7/65 (hereinafter cited as “Report (1965)”), (First Session) and LC/SC Article 77/WD Nos. 6–12; LC/SC Article 77/Report 7/2/67 (hereinafter cited as “Report (1967)”) (Second Session). Literature on the subject of Article 77 of the Chicago Convention includes the following: Cheng, Bin, The Law of International Air Transport 131–32 (London, 1962); Mankiewicz, R.H., “Aéronefs internationaux,” (1962) 8 Annuaire Français de Droit International 685 Google Scholar; Mankiewicz, R.H., “Aircraft Operated by International Operating Agencies,” (1965) 31 J. Air Law & Com. 304 Google Scholar; International Law Association-Helsinki Conference (1966) — Air Law Committee — Report on Nationality and Registration of Aircraft with Special Reference to Article 77 of the 1944 Chicago Convention on International Civil Aviation, 41 pp. Cheng, , Bin, “Nationality and Registration of Aircraft — Article 77 of the Chicago Convention,” (1966) 32 J. Air L. & Com. 551–63Google Scholar; International Law Association-Helsinki Conference (1966)-Air Law Draft Minutes of Meeting held on 16 August 1966.

Literature on the subject of nationality of aircraft includes the following: Roper, A., La Convention internationale du 13 octobre 1919 portant réglementation de la navigation aérienne (1930)Google Scholar; Jennings, R.Y., “International Civil Aviation Organization,” (1945) 22 Brit. Y.B. Int’l L. 191 at 206–08;Google Scholar Cooper, J.C. The Legal Status of the Aircraft, Mimeo. 88 pp.,Google Scholar prepared for the International Law Association in 1949. For conclusions of this report, see International Law Association, Report of the Forty-fourth Conference, Copenhagen, 1950, at 227–31; Cooper, J.C., “Etude sur le statut juridique des aéronefs,” (1950) 5 Rev. Fr. de Droit Aérien 125, 205 (full translation of Cooper report)Google Scholar; Cooper, J.C.National Status of Aircraft,” (1950) 17 J. Air L. & Com. 292 (condensed version of material in ILA report)Google Scholar; Honig, J.P., The Legal Status of Aircraft 4156 (The Hague, 1956).Google Scholar

10 United States, Department of State: Proceedings of the International Civil Aviation Conference. Chicago, Illinois, November 1-December 7, 1944. (Publication No. 2820.) 2 volumes, Washington, D.C., 1948 (hereinafter cited as “Chicago Proceedings”).

11 Ibid., 546.

12 See Canadian Revised Preliminary Draft of an International Air Convention (Document 50 of the Chicago Conference), ibid., 581: Article X — Joint Operating Organizations and Pooling

Section i

Nothing in this convention shall prevent two or more States from constituting joint air transport operating orgzations or international operating agencies, but such organizations or agencies shall be subject to all the provisions of this convention, including those relating to certificates and to the registration of agreements with the Board. The authority shall determine in what manner the provisions of this convention relating to nationality of aircraft shall apply to the aircraft operated by international operating agencies.

13 Resolution A1-3 7.

14 Resolution A2-13.

15 Ibid.

16 C-WP/2284 and Doc. 7763-C/896, Action of the Council, 29th Session, 24.

17 Doc. 7921-LC/143-1 Legal Committee, nth Session, Volume I, Minutes (ix), 145.

l8 C-WP/3091, Appendices 1–3. The proposed airline was to be established by a convention open to adherence by Arab countries irrespective of being members of ICAO or the League of Arab States. At that time (1960), Saudi Arabia was not a party to the Chicago Convention, but has since become a party to it, having deposited its instrument of adherence on February 19, 1962.

19 Report (1960).

20 Doc. 8124-C/928, Action of the Council, 41st Session, 17, 31–34.

21 The SAS is a consortium of three Scandinavian airlines of Denmark, Norway and Sweden whose aircraft are registered within each type, by approximately 3/7 in Sweden, 2/7 in Denmark and 2/7 in Norway. For information concerning the SAS, see ICAO Circular 30-AT/5-Report of the Scandinavian Airlines System (SAS), 1953; Bahr, H., “Scandinavian Airlines System (S.A.S.). Its Origin, Present Organization and Legal Aspects,” (1961) Arkiv for luftrett 202 Google Scholar; Vieira, , Manuel, A., Cooperación Aérea Internacional. La Experiencia S.A.S. 48 pp. (Montevideo, 1960).Google Scholar One writer points out that the SAS scheme “avoids the need for dual or multiple registration of aircraft prohibited by Article 18 of the Chicago Convention, 1944, without raising the problem of determination by the ICAO Council, under Article 77”. Cheng, , Bin, The Law of International Air Transport 275 (London, 1962).Google Scholar

22 Doc. 8279, A14-LE/11, Assembly, 14th Session, Report and Minutes of the Legal Commission 7.

23 For the text of this Convention, see Doc. 8364. For the development of Article 18 at the Tokyo Conference, see Doc. 8536-LC/152-1, International Conference on Air Law, Tokyo, August-September 1963, Volume I — Minutes 68–74, 77–78, 118–19, 121–28, 378–80 and 404-05 and Doc. 8565-LC/152-2, Volume II—Documents, especially Documents Nos. ai, 45, 47, 49 and 83.

24 For the text of this draft convention, see Doc. 8582-LC/153–1, Legal Committee, 15th Session, Montreal, September 1–19, 1964, Volume I—Minutes (xxvii)-(xxxiii).

25 C-WP/4115 and Doc. 8470-C/955, Action of the Council, 53rd Session, 19.

26 Report (1965).

27 Report (1967).

28 Report (1965), at 2 (para. 4).

29 PE-77/WD No. 2, at 2 (para. 2). For a different approach to the analysis of the expression “international operating agencies,” see ILA Air Law Committee Report, supra note 9, at 24–25.

30 PE-77/WD No. 2, at 2 (para. 3).

31 PE-77/WD No. 6, at 1 (para. 2).

32 PE-77/WD No. 6, passim.

33 PE-77/WD No. 6, at 1 (para. 4).

34 Ibid., 3–5 (paras. 8–11).

35 Report (1960), at 3–4 (para. 7). See PE-77/WD No. 9, at 6 (para. 4) for a suggestion of the United States member of the Panel of Experts that the international operating agencies contemplated in the second sentence of Article 77 are those established for the purpose of providing air services between contiguous countries only.

36 Doc. 8124-C/928, Action of the Council, 41st Session, 33.

37 Report (1965), at 3 (para. 5.3).

38 Report (1967), at 5 (para. 16).

39 See PE-77/WD No. 5 for statements of: (i) the provisions of the Convention which confer rights and privileges on aircraft having the nationality of a contracting State and ((ii) the provisions of the Convention imposing obligations and functions of the State of nationality of the aircraft with respect to that aircraft.

40 C-WP/2284, at 4 (para. 4(11)).

41 Ibid., 6 (para. 8).

42 Ibid., II (para. 16(5)).

43 Report (1960), at 3 (para. 8).

44 Report (1965), at 3 (para. 8).

45 C-WP/2284, at II (footnote).

46 PE-77/WD No. a, at 4–5 (para. 5).

47 Report (1960), at 3 (para. 9).

48 Doc. 8124-C/928, Action of the Council, 41st Session, 32.

49 Report (1960), at 6 (para. 14).

50 Doc. 8124-C/928, Action of the Council, 41st Session, 32. 5t Report (1965), at 3 (para. 7).

51 Ibid., 4 (para. 12).

53 Report (1967), at 2, 6–7 (paras. 1, 4.1, 17–21).

54 C-WP/2284, at II (para. 16(8)).

55 Report (1960), at 5 (para. 13).

56 Ibid., 4 (para. 12).

57 Doc. 8124-C/928, Action of the Council, 41st Session, 32.

58 See Article 18 of the Tokyo Convention. The initial proposal which led up to the adoption of this Article was made at the Tokyo Conference by the Representative of Senegal who was immediately supported by the Representatives of Congo (Brazzaville) and France. Doc. 8565-LC/152–1, op. cit. supra note 23, at 68–70.

59 Report (1965), at 4 (para. 12). The view of the minority in the first session of the subcommittee was also shared by a strong group in the Air Law Committee of the International Law Association in its report presented to the Helsinki Conference (1966) : see supra note 9. The views in the Air Law Committee were as follows: international registration is not compatible with the Convention — Mr. Justice H. Bahr (Norway), Dr. Bin Cheng (United Kingdom), Prof. J. C. Cooper (U.S.A.) and Dr. E. H. Loewenfeld (United Kingdom) ; doubtful about the compatibility of international registration with the Convention—Mr. Justice K. Sidenbladh (Sweden); international registration is compatible with the Convention — R. H. F. Austin (United Kingdom), Dr. W. Guldimann (Switzerland) (qualified opinion) and Prof. R. H. Mankiewicz (Canada).

60 Report (1967), at 13–16 (Appendix B).

61 For an examination of the sociological and technical background to international registration, see paragraph 3 of Memorandum of R. H. F. Austin in ILA Air Law Committee Report, supra note 9, at 39–40.

62 Report (1965), at 5 (para. 14).

63 Ibid., at 5 (para. 15).

64 Report (1967), at 2 (para. 4.1).

65 Ibid., 2–3 (paras. 6–7).

66 Ibid., 3 (para. 8).

67 Ibid., 6 (para. 18).

68 For an exhaustive list of the provisions of the Convention imposing obligations and functions on the state of nationality of the aircraft with respect to that aircraft, see PE-77/WD No. 5.

69 Report (1967), at 7 (para. 19).

70 Ibid., 3 (para. 8).

71 Ibid., 14 (paras. 11–12).

72 Ibid., 5 (para. 15).

73 The Chicago Convention applies the “contracting-out” principle to the technical Annexes adopted by the ICAO Council and contracting states are empowered by Article 38 to file with ICAO a statement of the differences between the provisions of their national aeronautical legislation and the Annexes. See Sheffy, M., “The Air Navigation Commission of the International Civil Aviation Organization,” (1958) 25 J. Air L. & Com. 428 Google Scholar; Bowett, D.W. The Law of International Institutions 123–24 (London, 1963)Google Scholar; Erler, J.Regulatory Procedures of ICAO as a Model for IMCO,” (1964) 10 McGill L. J. 264 Google Scholar; Saba, H., “L’activité quasi-léglislative des institutions spécialisées des Nations Unies,” 111 Recueil des Cours 607, 672 (1964-I).Google Scholar Skubiszewski, K., “Forms of Participation of International Organizations in the Lawmaking Processes,” 18 International Organization 790805.Google Scholar Detter, Ingrid, Law making by International Organizations, 353 pp. (Stockholm, 1965)Google Scholar; Codding, George A. Jr., “Contributions of the World Health Organization and the International Civil Aviation Organization to the Development of International Law,” (1965) Am. Soc. Int’l L., Proceedings, 147.Google Scholar

74 Report (1967), at 4–5 (paras. 9–9.2).

75 Ibid., 7 (para. 22(1)). Annex 7 (Aircraft and Nationality Registration Marks, 2nd ed., 1/11/64, specifies in detail the international standards and recommended practices relating to registration and identification of aircraft. The nationality mark is to be selected from the series of nationality symbols included in the radio call signs assigned to the state of registry by the International Communication Regulations. The nationality marks selected are to be notified to ICAO (para. 2.3). The registration marks consist of letters, numbers, or a combination of letters and numbers, and are assigned by the state of registry (para. 2.4).

76 Report (1967), at 8 (para. 22(2)).

77 Ibid., 5 (para. 14).

78 Ibid., 8 (para. 23).

79 Ibid., 9 (para. 24).