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The Transit Agreement or the so-called “Two Freedoms Agreement” also con-tains a reciprocal grant among ICAO members relating to their scheduled air services whereby their carriers could .y across the territory of a State without landing or land in its territory for non-traf.c purposes.
Therefore, it appears that the imposition of a restriction upon the airline of a defaulting State to .y over or to land in the States subscribing to the Bonn Declaration is incompatible with the provisions of the Chicago Convention and the Transit Agreement. The rights to .y over or land belong to States parties to the Chicago Convention, and those rights could not be derogated by a contrary
627ICAO Doc 9050-LC/169-2 at 42.
F. The Bonn Declaration
provision in another treaty, such as the Bonn Declaration. The Spanish delegate to the ICAO Legal Committee observed of sanctions against air services:
One of the problems ...was the compatibility of the air services with the right of the States parties to the Chicago Convention and Air Transit Agreement.628
The French Government stated the following in regard to the question of suspension of air services as a sanction:
decisions on the suspension of air services could not be taken without amending the bilateral agreement which grants traf.c rights, and, perhaps, even the Chicago Convention itself.629
In negotiating air transport agreements, both parties will endeavour to promote safe commercial operations of the type contemplated by the Chicago Convention and seek the grant of rights for their carriers. Bilateral agreements on air traf.c rights are usually not intended to cover the continuation of operation into and from victim States by aircraft of the States which are seen to promote the disruption of safe commercial aviation, in a manner speci.ed in the Declaration. Failure by States to take practicable measures necessary to prevent the disruption of interna-tional aviation – which is caused by such acts of detention and seizure of aircraft as speci.ed by the Declaration – would therefore not be consistent with the grant by peace-loving States, of rights necessary for the conduct of air traf.c by another State. Therefore, it is not logical to say that bilateral air transport agreements can properly be interpreted as granting rights to airlines of States to continue air services to and from a delinquent State if such state detains passengers, crew or aircraft or fails to prosecute or extradite the perpetrators. Walter Schwenk is of the view:
In interpreting the bilateral, the conclusion may be reached, however, that there seems to be suf.cient justi.cation for the suspensionof air traf.c rights under the bilateral itself without the need to resort to general principles of international law.630
The Chicago Convention established principles and arrangements designed to assure that international civil aviation would develop in safe and orderly manner. It imposes obligation upon each Contracting State “not to use civil aviation for any purpose inconsistent with” such aims631 More directly, The Convention speci.cally requires each Contracting State “to adopt all practicable measures ... to facilitate and expedite navigation by aircraft between the territories of Contracting States, and to prevent unnecessary delays to aircraft crews, passengers and cargo.”632 Refusal by a State to adopt generally agreed procedures to eliminate the threat to international civil aviation posed by such acts of detention and unlawful seizure as
628ICAO Doc 8936-LC/164-1 at 216. 629ICAO Doc 9050-LC/169-2 at 42. 630Schwenk(1979, p. 317).
631
Article 4.
632
Article 22.
are speci.ed in the Bonn Declaration, would constitute a failure by that State to carry out its obligation under Articles 2 and/or 44 of the Chicago Convention. Therefore, suspension of .ights in the circumstances referred to in the Declaration would not be incompatible with the Chicago Convention or the Transit Agreement, contrary to views of some scholars.
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Aviation Security Law 航空安全法(185)
