Air Law: Chicago Convention, Air Sovereignty and Hijacking

Unlike the sea, airspace above a state's territory is not open to all. Since the First World War, states have insisted on complete sovereignty over their airspace, and international flights depend on treaties granting rights of passage. International law also protects civil aviation from attack and hijacking, and governs the liability of airlines. This note covers each of these areas, with India's laws.

1. Sovereignty over Airspace

• Paris Convention, 1919. First recognised that every state has complete and exclusive sovereignty over the airspace above its territory.
• Chicago Convention, 1944. The Convention on International Civil Aviation restated the rule and established the International Civil Aviation Organization; India is a founding member.
• No innocent passage. There is no right of innocent passage through airspace comparable to that in the territorial sea; aircraft need permission, except over the high seas and the EEZ, where overflight is free.
• Upper limit. The boundary between airspace and outer space is not fixed by treaty; it is often placed around 100 km (Topic 31)

Figure 1: Key provisions of the Chicago Convention

2. Commercial Rights and the Freedoms of the Air

• Transit and Transport Agreements, 1944. The International Air Services Transit Agreement grants the first two freedoms; the International Air Transport Agreement, which grants five, attracted few parties.
• Bilateral agreements. Most traffic rights are exchanged in bilateral air services agreements, beginning with the Bermuda Agreement (UK and USA, 1946); open skies agreements remove many restrictions.
• Air defence identification zones. Some states require aircraft approaching their airspace over international waters to identify themselves; the legality of applying this to aircraft not bound for their territory is disputed.

Figure 2: The five freedoms of the air

3. Attacks on Civil Aircraft

• Article 3 bis. Adopted in 1984 after the Soviet Union shot down Korean Air Lines flight 007 in 1983; in force since 1998; states must refrain from using weapons against civil aircraft in flight and, in intercepting, must not endanger the lives of persons on board.
• Aerial Incident of 10 August 1999 (Pakistan v India), 2000. After India shot down a Pakistani naval aircraft, the ICJ held that it had no jurisdiction, because of India's reservation excluding disputes with Commonwealth states and its reservation to the 1928 General Act.
• MH17. Malaysia Airlines flight MH17 was shot down over eastern Ukraine in 2014; in May 2025, the ICAO Council held Russia responsible for breaching its obligations under the Chicago Convention, a decision Russia has challenged.

4. Aviation Security Conventions

Figure 3: Conventions against unlawful acts

• Tokyo Convention, 1963. Covers offences and acts on board aircraft; the state of registration has jurisdiction, and the aircraft commander has powers to restrain persons.
• Hague Convention, 1970. On unlawful seizure of aircraft; parties must make hijacking punishable by severe penalties and either extradite or prosecute the offender (aut dedere aut judicare)
• Montreal Convention, 1971. Covers sabotage and other acts against the safety of civil aviation, extended to violence at airports by a 1988 Protocol.
• Beijing Convention and Protocol, 2010. Cover using civil aircraft as a weapon and transporting weapons of mass destruction.
• Lockerbie (Libya v UK and USA), 1992. Libya relied on the Montreal Convention to resist surrender of suspects in the 1988 bombing of Pan Am flight 103; the ICJ refused provisional measures because Security Council resolution 748 prevailed under Article 103 of the Charter.

5. Carrier Liability

• Warsaw Convention, 1929. Established a uniform system of limited liability of air carriers for passengers, baggage and cargo.
• Montreal Convention, 1999. Replaced the Warsaw system with a two tier regime: strict liability for death or bodily injury up to a set limit in Special Drawing Rights, revised periodically, and presumed liability beyond it unless the carrier proves it was not negligent.
• India. The Carriage by Air Act, 1972, as amended in 2009, gives effect to the Warsaw and Montreal Conventions.

6. Indian Law

• Anti-Hijacking Act, 2016. Replaced the Act of 1982; hijacking is punishable with imprisonment for life and fine, and with death where it results in the death of a hostage or security personnel.
• Other statutes. The Tokyo Convention Act, 1975 and the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 implement the conventions; the Bharatiya Vayuyan Adhiniyam, 2024 replaces the Aircraft Act, 1934 for regulating civil aviation.
• Kandahar hijacking. The hijacking of Indian Airlines flight IC 814 in December 1999 shaped India's later anti-hijacking policy.

7. Frequently Asked Questions

Does the Chicago Convention apply to military aircraft?

No. Under Article 3, it applies only to civil aircraft. Aircraft used in military, customs and police services are state aircraft, and they may not fly over or land in another state without its authorisation.

Why did the ICJ decline jurisdiction in Pakistan v India (2000)?

Because India's declaration accepting the Court's jurisdiction excluded disputes with Commonwealth states, which covered Pakistan, and the other bases Pakistan relied on, such as the 1928 General Act, did not apply.

What is the difference between the Tokyo and Hague Conventions?

The Tokyo Convention (1963) deals generally with offences on board aircraft and the commander's powers, but does not require states to punish hijacking. The Hague Convention (1970) specifically covers unlawful seizure of aircraft and obliges states to punish it severely and to extradite or prosecute offenders.

Is there a right of innocent passage through another state's airspace?

No. Unlike ships in the territorial sea, aircraft have no right of innocent passage; they may enter only under the Chicago Convention, the Transit Agreement or bilateral agreements, or with specific permission.

8. Related Topics

• Topic 31: Outer Space Law. The upper limit of airspace.
• Topic 41: Extradition. Extradite or prosecute.
• Topic 49: International Court of Justice. Reservations and jurisdiction.