Nationality of Aircraft and Nationality of Airlines as Means of Control in International Air Transportation

Journal of Air Law and Commerce, Dec 1958

By J. G. Gazdik, Published on 01/01/58

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Nationality of Aircraft and Nationality of Airlines as Means of Control in International Air Transportation

Journal of Air Law and Commerce Nationality of Aircraft and Nationality of Airlines as Means of Control in International Air Transportation J. G. Gazdik 0 0 J. G. Gazdik, Nationality of Aircraft and Nationality of Airlines as Means of Control in International Air Transportation, 25 J. Air L. & Com. 1 (1958) https://scholar.smu.edu/jalc/vol25/iss1/1 - Article 1 WINTER, 1958 No. 1 NATIONALITY OF AIRCRAFT AND NATIONALITY OF AIRLINES AS MEANS OF CONTROL IN INTERNATIONAL AIR TRANSPORTATION By J. G. GAZDIK Lecturer, Faculty of Law, McGill University; Member of the Montreal Bar. HE Chicago Convention,' following the pattern laid down in the Paris Convention of 1919,2 and the Protocol amending this Convention,3 contains certain limitations which have the effect of preventing undesirable aliens from gaining control over aircraft, or airlines, and from enjoying the benefits of the commercial privileges granted to contracting States of the Convention. It is not necessary here to go into the background and history of the developments of these controls. This has already been done extensively. 4 It is proposed only to bring out the apparent anomaly in the present forms of these controls as they affect private aircraft and airlines operating international air services. 5 In order to do this, it will be necessary to mention that the Chicago Convention distinguished between nonscheduled flights and scheduled international air services. With respect to non-scheduled flights, broad privileges -aregranted 1 Convention on International Civil Aviation, signed at Chidagp, on December 7, 1944. under Article 5 of the Convention to aircraft "of the other contracting which, or into whose territory, the services are operated. 7 The Convention requires that the aircraft which may take advantage of the privileges contained in Article 5 should be registered in one of the other contracting States and provides that such aircraft have the nationality of the State in which they are registered. s This is the basic control which parties to the Chicago Convention imposed as the prerequisite of flying into or through territories of contracting States. The Convention also provides that the registration or transfer of registration of aircraft in any contracting State shall be made in accordance with its laws and regulations.9 It would follow that, if and where the national laws and regulations of a contracting State do not prevent it, foreign owned aircraft may be registered in, and may therefore obtain the nationality of, a contracting State. Accordingly the basic control has been somewhat lessened by Article 19 of the Convention. In fact, certain States have registers open to foreign owned aircraft,' 0 and in other States, the registry is open to certain owners; e.g., in France, aircraft owned by individuals or companies, domiciled in the French Union, may be registered. In the U.K., Union of South Africa, Pakistan, India and New Zealand, aircraft 6 Article 5, Chicago Convention: "Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing. Each contracting State nevertheless reserves the right, for reasons of safety of flight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such flights. Such aircraft, if engaged in the carriage of passengers, cargo, or mail for remuneration or hire on other than scheduled international air services, shall also, subject to the provisions of Article 7, have the privilege of taking on or discharging passengers, cargo or mail, subject to the right of any State where such embarkation or discharge takes place to impose such regulations, conditions or limitations as it may consider desirable." 7 Article 6, Chicago Convention: "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, and in accordance with the terms of such permission or authorization." 8 Article 17, Chicago Convention: "Aircraft have the nationality of the State in which they are registered." 9 Article 19, Chicago Convention: "The registration or transfer of registration of aircraft in any contracting State shall be made in accordance with its laws and regulations." 10 Australia, Colombia, El Salvador, Greece, Guatemala, Honduras, Iceland, Italy, Mexico, Netherlands, Sweden and Uruguay. In addition thereto, three Scandinavian States, namely Denmark, Finland and Sweden, will permit such re (...truncated)


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J. G. Gazdik. Nationality of Aircraft and Nationality of Airlines as Means of Control in International Air Transportation, Journal of Air Law and Commerce, 1958, Volume 25, Issue 1,