The Chicago Convention celebrates its 75th anniversary in 2019 and remains the essential framework for the industry.
“The Chicago Convention has proven to be extremely resilient, being subject to very few substantive amendments since its adoption,” says Olumuyiwa Benard Aliu, ICAO Council President.
“A unique feature of this agreement is that it provides for the adoption and amendment of standards and recommended practices (SARPs), and in its role as a rulemaking body, ICAO has developed over 12,000 of these provisions for aviation safety, security, facilitation and environment protection.
“These standards permit civil aviation to respond and adapt to new and emerging opportunities and challenges, including changes in technology, increases in global air transport demand and capacity, as well as new and evolving threats to air safety and security.”
The great achievement of the Chicago Convention is that States have agreed to exercise their sovereignty in keeping with a single, global system of aviation regulation
Jeff Shane, IATA’s General Counsel agrees that the Convention should be applauded for what it achieved (see boxout p36), especially “the establishment of an institution—ICAO—that has facilitated the global standard-setting essential to the stunning expansion of aviation in the years since.
“ICAO has facilitated vitally important coordination among States that has enabled civil aviation to become an essential driver of global economic growth,” he adds. “Whether we’re talking about the licensing of aircraft and crew members, or the framework for global air traffic management, or the regulation of safety, ICAO has been the beacon.”
Global standards, facilitated by ICAO, are the Chicago Convention’s most important gift to the world. While every State retains the authority to regulate airlines based in its territory, each signatory to the Chicago Convention has agreed to adhere to the standards and recommended practices adopted pursuant to the Convention.
In other words, the great achievement of the Chicago Convention is that States have agreed to exercise their sovereignty in keeping with a single, global system of aviation regulation.
What might have been
The UK delegation to Chicago in 1944 proposed the creation of a new “International Air Authority”—a kind of global civil aviation authority—that would serve as the world’s air transport regulator. Initial capacity on international routes was to be negotiated multilaterally, based on a strict mathematical formula. New Zealand proposed that the new international authority should own all
aircraft and facilities and be responsible for the actual operation of commercial air services on prescribed international trunk routes.
Discussion on… The search for open skies
120 The United States today has more than 120 open skies agreements with trading partners globally
Questions have surrounded the Chicago Convention’s suitability since its inception. Most notable, perhaps, is why there isn’t a commitment to open skies.
Franklin D. Roosevelt, the US President in 1944, sent a message to the Chicago gathering to specifically warn against “great blocs of closed air” and yet that is precisely what happened.
Article 6 of the Convention says a country can’t operate scheduled international air service into the territory of another contracting State without its permission.
This, of course, runs contrary to accepted trading wisdom where liberalization has brought the greatest benefits to consumers and the economy.
But Jeff Shane, IATA’s General Counsel points out that any agreement that facilitated global open access for commercial flights was simply inconceivable at the time.
Proof is in the restrictive 1946 Bermuda Agreement between the United Kingdom and the United States, arguably the two most advanced countries at the time in terms of commercial fleet, and so the two countries that stood to gain most from a liberalized market.
The fact that these two giants of the fledgling aviation world were cautious “tells you everything you need to know,” says Shane.
The Bermuda Agreement set the precedent for the many bilaterals that followed. More than 3,500 are now in place and for years most were carefully calibrated—through enabling the strict regulation of entry, capacity, routes, and fares—to protect the interests of each country’s airlines.
This restrictive approach proved a stumbling block to aviation growth for decades as it artificially limited competition.
In a breakthrough development, the United States and the Netherlands forged the first Open Skies agreement in 1992. This was an accord that eliminated most of the regulatory constraints on air services between the two countries and created a wholly new model for international aviation.
The United States today has more than 120 open skies agreements with trading partners around the world, and the liberalized approach is finding its way into many other markets as well.
Shane isn’t convinced that an open skies approach to international market access for airlines will ever find its way into the Chicago Convention, however.
“There would be more than 190 opinions on what a commercial agreement should look like,” he suggests.
“The debate would be a huge distraction from ICAO’s core responsibilities—ensuring the predictability, safety, and stability of global air transport.”
The Chicago Convention agreement was signed on December 7, 1944, in Chicago by 52 signatory states. It was ratified on March 5, 1947 and went into effect on April 4, 1947, the same date that ICAO was established
The main Articles…
The Chicago Convention was signed on 7 December 1944, by 52 signatory States. It was ratified in March 1947 and went into effect in April of that year.
Article 1: Every State has complete and exclusive sovereignty over airspace above its territory.
Article 3 bis: Every other State must refrain from resorting to the use of weapons against civil aircraft in flight.
Article 5: The aircraft of States, other than scheduled international air services, have the right to make flights across State’s territories and to make stops without obtaining prior permission. However, the State may require the aircraft to make a landing.
Article 6: No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State.
Article 12: A State shall keep its own rules of the air as uniform as possible with those established under the convention. Duty to ensure compliance with these rules rests with the contracting State.
Article 13: A State’s laws and regulations regarding the admission and departure of passengers, crew or cargo from aircraft shall be complied with on arrival, upon departure and whilst within the territory of that State.
Article 24: Aircraft flying to, from or across, the territory of a State shall be admitted temporarily free of duty. Fuel, oil, spare parts, regular equipment and aircraft stores retained on board are also exempted from customs duty, inspection fees or similar charges.
Difference of opinion
There have been changes to the Convention’s Articles over the years. Eight revisions have been ratified since its inception. Article 3 bis is perhaps the most significant amendment in recent years. It states: Every other State must refrain from resorting to the use of weapons against civil aircraft in flight. In short, civil aircraft must not be shot down.
The language in the original Convention wasn’t so specific. But the 1983 shooting down of Korean Air Lines 007 by Russian fighter jets at a time of cold war tension forced the international community into action. Yet, despite the relatively rapid adoption of the Article, 15 years passed before the requisite ratification was obtained.
“This was a straightforward amendment,” says Shane. “That so much time elapsed between adoption and its coming into force shows that tinkering with the Chicago Convention is tough and there has to be a really compelling reason to do so. It is not something to do lightly.”
Nevertheless, the next 75 years may well see significant changes in civil aviation that will force further revisions.
Drones and commercial space travel are two obvious areas that may need to be addressed. There was a provision for unmanned aircraft in the Convention, but this undoubtedly was addressed to rockets and missiles and not the proliferation of small drones.
“Many new advances have occurred in aviation since 1944, but fortunately and quite presciently the drafters of the Convention had considered and made allowance for them within its provisions,” believes Dr. Fang Liu, ICAO Secretary General.
She continues: “Today we continue to benefit from their original vision by being guided cooperatively by a broad and flexible multilateral agreement, which can accommodate not only new technological developments, such as unmanned aircraft, but also collaborative global policy approaches to challenges such as our current environmental and security priorities.
“There will always be new territory for aviation, but because of the level of consensus that the Convention has fostered across our sector, there are also opportunities to provide leadership and a true example to the world of what effective international cooperation can really achieve.”
Shane agrees that this work is adaptation rather than replacement of the Chicago Convention established in 1944. “I am sure there are some dramatic changes ahead but the rules for commercial aviation are still relevant and are likely to remain so for the foreseeable future,” Shane concludes.
Olumuyiwa Benard Aliu,
ICAO Council President
“The Convention has proven to be extremely resilient, being subject to few amendments since its adoption”
IATA’s General Counsel
“ICAO has facilitated vitally important coordination among states that enabled civil aviation to become a driver of global economic growth”
Dr. Fang Liu,
ICAO Secretary General
“The Convention provided a true example to the world of what effective international cooperation can really achieve”