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
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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)