INTERNATIONAL AIR LAW
SOME QUESTIONS
ON AVIATION CABOTAGE
Nicky E. Hesse*
Cabotage, as we now conceive it, being the right of the state to reserve to its
national instrumentalities of commerce all trade between two points of its
a firmly defined and limited
territory, has never been –
concept of universal international law.
nos is it to-day –
The term generally accepted in International Maritime and Fluvial Law
since the beginning of the nineteenth century for the above defined right was
introduced into International Air Law from the first consideration of inter-
national air traffic conventions.
Generally States use this right in International Maritime Law for traffic
from port to port on the coast of one country, or from port to port on the
different coasts of one country, the latter being understood as one political and
geographical unit in contradistinction to colonial or other distant possessions.
The latter traffic has, since Oppenheim’s paper on the question of Maritime
Cabotage’ usually been referred to as “Colonial Trade”. This practice in
Maritime Law is, however, not universal. Portugal and the United States
constitute the two major exceptions. They consider certain traffic to distant
dependencies as cabotage –
and reserve such traffic to their national flags.
Since Oppenheim’s paper on this question various attempts have been made
in International Conferences (the Barcelona Conference, 1921, and the
Maritime Ports Conference, 1923) to restrict the right of maritime cabotage
to the narrower sense as defined by Oppenheim. All these attempts have failed
so far.2
*Attorney-at-law, Member of the Bar of Heidelberg, Germany. Research assistant to
the Institute of International Air Law, McGill University.
1Oppenheim, The Meaning of Coasting-Trade in Commercial Treaties, 24 L. Q. REV.
328, 331 (1908).
2
CoNvENTION OF TIfE RPGIME OF NAVIGABLE WATERWAYS Art. 5; CONVENTION AND
STATUiM ON MARrimE PORTS Art. 9; Transit and Communications, Doc. C. 29, M. 15
(League of Nations Publications,. 2d Gen. Conference, 1924); ScHUECLNG,
at 61
REPORT ON THE LAW OF TERRITORIAL WATERS, c. 10, art. 8 (League of Nations Comm’n of
Experts for the Codification of Int’l Law).
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The earliest legislation on cabotage or “coasting-trade”, which is the Anglo-
American term for this right, dates as far ‘back as 1562. 3
The present legal situation with regard to cabotage is still that this right
can be used lawfully in a very wide sense and in a discriminatory way. The
fear of retaliation appears to be the major reason for the generally limited
customary practice of most States. It should be noted, that this right may at
given occasions fulfil protective purposes for a weak national merchant marine.
Further niore it should not be forgotten that at the present time even practices
to restrict colonial trade to the metropolitan country exclusively would not be
unlawful, provided that contravening Conventions and Treaties have been
renounced. This right is, of course, only of academic interest as any nation
acting in this way would most certainly exclude herself from intercourse
with the rest of the world. But the right is still existent.
0
Cabotage is a term which is applied to the same right in International Air
Law. The word is found as a marginal note in Article 7 of the Chicago’Con-
vention, 4 though not part of the Convention as such. It has, however, in
Air Law a meaning entirely different, so far as its application in practice goes,
although defining the same basic right as in Maritime Law, to reserve the.
national traffic to the nation’s flag. The basic difference is that a general
custom exists in Maritime Law of the Nations restricting this right to
territorial units as defined by Oppenheim. whilst the general custom with
regard to aviation cabotage is on the contrary to apply it in the widest sense
including “Colonial Trade”.
It may appear striking that the same term is used for two different legal
practices. The short and recent history of this split in the notion of cabotage
is probably a quite unique example of how political, sociological and economic
factors create law and even change established legal practices.
Originally in the first attempts to arrive at an international aviation con-
vention, it was quite clear to all delegations participating that the concept of
cabotage to be introduced in such a convention was intended to be the one
generally known -and practiced
in Maritime and Fluvial Law. The first
statement to that effect was contained in the 1910 German Draft Proposal
for the then intended Paris Convention. 5
3 Cf. STATUTES OF ENGLAND, 5 ELIz., c. 5, 8.
4Art. 7 of the Chicago Convention reads: “Each contracting State shall have the right
to refuse permission to the aircraft of other contracting States to take on its territory
passengers, mail and cargo carried for remuneration or hire and destined for another
point within its territory. Each contracting State undertakes not to enter into any
arrangements which specifically grant any such privilege on an exclusive basis to any
other State or an airline of any other State, and not to obtain any such privilege from
any other State.”
5 GERMAN DRAFr PROPOSAL FOR INT’L AVIATION CONVENTION Art. 14 in Conf&ence
int’le de navigation a6rienne (Paris 1910), Expos6 des vues des puissances d’apras les
memoranda adress~s au gouvernement franqais (Paris 1909).
1953]
AVIATION CABOTAGE
The concept was that cabotage should be permitted to be practised only in
cases when a flight does not leave the territory of one state to get to any
other territory, be it even of the same State. No one raised any doubt in
that respect, although another Article in this Draft Proposal provided that
such Convention might be made effective for distant possessions.” Because
there was no such doubt the question as to the application of cabotage in
flights to such distant territory was not raised.
The final Convention of 1910 which was never signed, for reasons im-
material here, provided the same narrow application of cabotage, as the
Minutes of the Conference show, although the text was less clear in that
respect.7
When the Paris Convention of 1919 was drafted, what later appeared to
be an error of omission entered the text of the Convention unintentionally,
the omission capable of overthrowing the usual concept of cabotage. The
question as to whether cabotage should be applied in the generally understood
maritime sense was not raised. On other ‘Matters relating to cabotage there
was some discussion indicating that had the question, so far not yet re-
cognized, been raised, then probably no agreement might have been reached
as to whether the maritime concept should hold true in the air or a new
concept should be developed and agreed on. The Delegations were at any
rate then not willing to agree to anything on which there as yet existed no
practical experience.8 And on aviation cabotage certainly none then existed.
The difficulty arises from the text of the 1919 Paris Convention providing
in Articles 1 and 40 that territory should be understood as the metropolitan
territory, colonial territories and the adjacent waters, and that furthermore
protectorates and mandates should be legally assimilated to the territories of
the protecting or mandatory state for the purpose of the Convention. These
provisions aimed at a definition of what territories are considered as under
the sovereignty of a contracting State. Then Article 16 of the Convention
permitted a contracting State to exclude from the granted traffic-privileges
cabotage traffic in favour of national aircraft “between two points of its
territory”.
Here lay a grave discrepancy, opening the way for an argument allowing
the then unusual interpretation that traffic from the metropolitan territory
to a colonial territory could be considered as cabotage-traffic. The text of the
Convention clearly allowed such interpretation which left it to the discretion
of the states concerned, whether or not to apply such a wide meaning of
the notion of cabotage in air traffic.
6 GERMAN DR&rr PRoposA, supra note 5, Art. 40.
7 Conference int’le de navigation a&rienne, PRocPs VERBEAUX 103, 241, 281 and 322-23,
Rigle 3 (Paris 1910).
8DE LA PRADF.LLE, AfRONAU iQUE 263, 453-S5, 484-85, 603 (1936).
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Several years after the Paris Convention was signed, the Nations finally
stated what they thought of the difficulty. They agreed almost unanimously
to take full advantage of the interpretation giving them the right to extend
cabotage to an apparently unintended meaning, although such interpretation
was obviously and clearly against the basic idea of the same Convention into
which it slipped. It may be of interest to scholars to refer to the studies of
the Legal Subcommission of the International Commission for Air Naviga-
.tion (ICAN), and in particular to Professor Ambrosini’s Reports on the
question in this Subcommission and the Commission itself.
The Minutes show clearly how, after the question was once discovered in
1931 on the occasion of a French Questionnaire relating to other cabotage
questions, the Legal Subcommission for four years tried hard to bring, home
to the representatives of the sovereign Nations and Contracting States to the
Convention that such an interpretation as allowed by the unfortunate text of
Article 16,.taken together with Articles 1 and 40, would be contrary t6 the
sense of the Convention and was not intended when the Convention was
drafted. This Expert-Commission was entirely overruled by the hard facts
that sovereign Nations had to apply the Convention and wanted to apply
it in a sense serving the national interests of each. The Commission could
not get unanimity on a change of the text of Article 16 and the idea to bring
aviation cabotage in line with maritime cabotage was finally dropped, ending
with a Resolution to use with moderation the right permitted by the Conven-
tion.9
The objection might be raised that such a practice and interpretation was
not intended at the time of the Draft and that an obvious error or slipi
cannot create right.
This legal objection must be answered to the effect that, after the error
had been realised, the contracting parties stated that they did not want any
change and, therefore, henceforth expressly agreed to this wide application
of cabotage.
Thus the result is that the concept of cabotage was in fact very basically
changed and was nearer to the old “Colonial Trade” rule.
The Paris Convention was superseded in 1945 by the Chicago Convention
of 1944. There again was an opportunity to bring the narrower concept of
maritime cabotage, allowing more freedom of international air navigation back
9Int’l Comm’n for Air Navigation [hereinafter ICAN], 1 MINUTES OF THE LEGAL Sun-
comM’N Minutes No. 1, Annex G (1931) ; Id. at 20, 21: the question raised by the Dutch
Delegate, Dr. Schoenfeld; ICAN, MINuTEs OF THE COMm’x Annex Al (1931); Id. at
45; Id., Annex AE; Id. at 94 (1932); Id., Annexes AT AS (1933); ICAN, MINUTES
OF THE LEG.:L SuacotiM’N Annex C (1933) ; ICAN, MIxuTEs OF THE CO!MIN 96 (1933);
Id. at 94, Res. No. 672 (1933) ; ICAN, MINUTEs OF THE LEGAL SUBCOMM’N 14 (1934);
ICAN, MINUTES OF THE COMM’N 114 (1934)-
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AVIATION CABOTAGE
into practice. The idea was not taken up -by any mjor group and the same
technical principle as in the Paris Convention of 1919 was incorporated in
Articles 1, 2 and 7 of the Chicago Convention.
As a conclusion, it cannot be said that this very wide interpretation of
cabotage in aviation law is against the rules of International Law. Admit-
tedly there is no such commanding and binding universal rule in Maritime
Law. Besides there is no cogent reason why Air Law should be subject to
the rules built up in Maritime Law. Although obviously there had been legal
thought in terms of analogy in the 1910 and 1919 Conferences, there is no
to apply analogous thinking by all means
controlling legal requirement
wherever it may fit. And furthermore it is questionable whether Air and
Maritime Law can be construed entirely by way of analogies. The media and
means of transportation are distinctly different, both politically and econom-
ically. Air~Navigation depends to a large extent on flying over territories of
sovereign nations. Air Navigation is yet fairly young and in the stage of
major development which may induce nations to protect the national growth
of this branch of traffic before opening it to competition. Navigation of the
seas is long established and is in a kind of international equilibrium. Thus
there may be some purpose at the present time to practise cabotage as a
broad protective means, although it should be realized that it is a practice
opposed to freedom of traffic. This, at the same time, shows the weak side
of the present cabotage rule in Air Law. If it hampers aerial traffic, time
and again the attempt will be made within the framework of conventions
and on the occasion of conferences to reduce this rule to a narrower inter-
pretation, until it may finally disappear entirely in the changing bilateral
or multilateral relations when air navigation and air traffic get firmly
established. And this process, on our looking back at the last thirty years of
practice, will certainly be much faster than it was in Maritime Law.
The present interpretation is lawful, though highly objectionable as a
restriction of freedom of aerial traffic.
II
After the major question about the present practice of aerial cabotage with
regard to the term territory and its international legality has been answered,
a few more specialised and minor questions should be touched, and, as far
as the scope and length of this article permits, answered to some extent.
It appeared that the term aerial cabotage covers something distinctively
different from maritime ca botage -by comprising -both what may be termed
original cabotage .(understood as covering one single territorial unit) and
original colonial trade. It might appear that th, term should henceforth no
longer be used in legal terminology as referring to air traffic, since it is
misleading as a legal term, having only a vague relation to the. term in
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Maritime law -language. It could be suggested to use a clearer term in
contradistinction to the now commonly used term international traffic in
passengers, .mail and cargo’0 by naming what is so far called cabotage-traffic,
as national traffic which would in this writer’s opinion be clear to indicate all
traffic reserved to any one nation as between any territories under such
nation’s sovereignty and/or jurisdiction. This term might easily be introduced
into practice.
The present practice of cabotage in aviation appears dissatisfying to many.
By keeping the incorrect term –
by which something very definite is under-
stood in International Law –
for the dissatisfying practice, we will be able
to keep the nations aware of some basic lack of liberty in air-traffic. We
should think twice, whether under these circumstances we should replace the
term cabotage by a term nations and individuals may get used to and take as
legally for granted some day. An incorrect term for something we want to
discard finally, may prove helpful in discarding it, if the term always serves
to remind us of some very clear and definite right of the Nations which may
really be applicable in the very same and original way one day in Aviation
Law.
The right of a state to reserve traffic between two points of its territory
to the national flag as defined by Articles 2 and 7 of the Chicago Convention
raises some doubt with regard to the case of a Federal State being formed out
of sovereign states, which are contracting Parties to the Chicago Convention,
with regard to Condominia and finally with regard to Trusteeship-Territories.
We shall briefly deal with each of them.
Federal States
A Federal State which is formed out of a number of sovereign states may
only then create a new, wider cabotage area in which the right of cabotage
is applicable to all national ircraft of the former single sovereign nations
exclusively, if the new Federation legally embodies the creation of a new
single external sovereignty for the Federation as one state. Without such
transfer of external sovereignty to the new level of the Federation a claim to
reserve cabotage to the members of the Federation could be considered a
violation of Article 7 (second sentence) of the Convention by which
Each contracting State undertakes not to enter into any arrangements which specific-
ally grant any such privilege on an exclusive basis to any other state…
To form an example, the Benelux nations presently could not reserve cabotage
within the three territories and to the distant possessions under the sovereignty
of Holland and Belgium, to the aircraft of Belgium, Holland and Luxemburg,
10See International Air Agreements of the Chicago-Type, Annexes (1946 ff.)
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AVIATION CABOTAGE
as the Benelux is not embodied with a zingh: Lxternal sovereignty conferred
to her from each of the member states.
On the other hand, if Europe would form a United States of Europe with
a central government, having external sovereignty, the cabotage rule for all
formerly sovereign members within their territories in Europe and from
there to their distant possessions would be in conformity with Article 7,
provided such distant possessions would at the same time be subject to the
same single new sovereignty. Europe could, it appears, by uniting to one
externally sovereign state exclude all foreign aircraft from traffic between
two points within the European Continent and between Europe and her
possessions without a violation of Article 7.
Condominia
Sovereignty over a condiminium is generally jointly exercised by, two or
more nations over a territory.’ Examples. are Canton Island, Sudan, New
Hebrides, Western Germany under occupation.1 2 If we apply this rule to
Article 7 of the Chicago Convention. we have to conclude that the states
holding such joint sovereignty are entitled to consider a flight from their
territories to such a condominium as a cabotage flight and would therefore be
entitled to exclude aircraft of third nations from such traffic. The present
practice in the Sudan appears to indicate this. 1 3
As regards the right of the inhabitants of such a given condominium to
engage in aviation in such territory, it appears that such right to the exclu-ion
of third nations would exist, but only in concurrence with the same right of
the nations holding sovereignty. The question of the inhabitants engaging in
aviation seems to encounter some difficulty with the present concept of
aircraft nationality. This is only apparently so. Nothing prevents a sovereign
from providing the inhabitants of a territory with a certain nationality
status. 14 It cannot be seen, why a community under foreign sovereignty
should be barred from aviation activity in its territory, although the Chicago
Convention appears to presuppose sovereignty. There is in fact no pre-
supposition in the Convention that a community must have sovereignty in
111 OPPENHEIm, THE LAW OF NATIONS 409, 410 (1948).
l2As to Western Germany see SCHWARZENBERGER,
INTERNATIONAL CouRTs 142, 312-15
(1949) ; there is no unanimity as to the status of Western Germany.
13 Cf. ABC TImE TABLE (1951).
14LiNDLEY, THE AcQuIsimoN AND GOVERNMENT OF BACKWARD TERRITORIES IN IN-
TERNATIONAL LAVW 323 (1926); WRIGHT, MANDATES UNDER THE LEAGUE OF NATIONS
457, 461, 477 (1930) ; Wright, 1924, Am. J. INT’L L. 306, 310, 314 (1924) : Wrights con-
clusion is that the sovereign may by legislative acts determine the status of the inhabitants.
The sovereign may likewise through legislative act provide a national status for aircraft
belonging to a carrier who is a native and resident of such territory.
McGILL LAW JOURNAL
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order to be permitted to fly. It can derive such right or privilege from the
sovereign nation, if the latter agrees to it as it can agree to the right or
privilege to run railways. Such a case may soon become a fact with the
present plans to begin West-German Civil Aviation, if we consider Western
Germany as being presently not a sovereign nation (opinions on this point
are not unanimous). We have to foresee air traffic on both a long-distance
and local scale, although presently there is chiefly long-distance traffic. In
such a case there appears to be no violation of Article 7, if the inhabitants
obtain the right to engage in aerial commerce in their territory together with
the right of the nation sovereign over such territory.
Trusteeship Territories
The Paris and Chicago Conventions consider mandates, for the purpose
of the Conventions, as under the sovereignty of the respective contracting
parties.15 It was not proposed to settle the implicit question as to who is
the holder of sovereignty over mandates. The contracting parties agreed only
among themselves that such territories should be considered as coming under
the rules of the Conventions. It is known that no definition was ever given
in the Covenant of the League of Nations as to who holds sovereignty over
mandate territories. Neither did -the Hague Court decide this nor did there
ever exist any unanimity amongst the publicists in International Law on
the question. When the League of Nations wound up, the question was still
unanswered and five different opinions were then existing on this question.10
It appears that in the case of B-mandates the equality of treatment was
embodied in the Covenant itself.17 The legal situation has to be differently
construed as between the Chicago Convention and the Charter of the United
Nations:
a) We have to observe that the Chicago Convention was drafted prior to
the existence of the United Nations Charter and of the trusteeship system and
it therefore only provides for mandates in Article 2 and not for trhsteeship-
territories.
15 PARIS CONVENTION Art. 40; CHICAGO CONVENTION Art. 2.
16WRIGHT, op. cit. supra note 14, at 267, 397; 1 OPPExlHEIM, op. cit. .supra note 11, at
202-203; for the practice of aviation and cabotage in mandated areas, see Cooper, United
Nations Trusteeships, 2 AIR ArI, ams 115 (1949) : C6oper stresses that cabotage could be
applied in mandated areas, provided always that the terms of the mandate did not
directly limit this right: Art. 23(e) of the Covenant of the League of Nations did not
constitute such limitation since it only contained a moral, and not a legal obligation; see
also the example given by Cooper about some lack of clarity in the mandate’over
Tanganyika; principally it may be said that in the mandate-system apparently the
equality-treatment was governing by way of the terms of each particular mandate and
that, no such general principle could be derived from Art. 22 and 23 of the Covenant.
17CoVEN
-T OF THE LEAGUE OF NATIONS Art. 22, 15.
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AVIATION CABOTAGE
b) The Charter provides in Article 76(d), differing from the Covenant,
equal treatment in social, economic and commercial matters for all Members
of the United Nations and their nationals as a basic objective of the trustee-
ship system which the Covenant did not provide with regard to mandates
(except B-mandates).
e) Paragraph (a) above may indicate that trusteeship territories cannot
come within the provisions of the Chicago Convention. No nation holding a
trusteeship would appear to be bound to apply these provisions. Practice,
however, shows that the Convention is applied to such territories (as it
appears natural, if we consider the amount of international uniform regulation
introduced through the International Convention on Aerial Navigation and
the Chicago Convention, the latter now being in force in 57 states of the
world). We may say that such wilful practice amongst the nations is proof of
their general belief that the Convention governs trusteeship territories for the
sake of uniform practise in world aviation.
We may at the same time construe this from the Agreement Between the
United Nations and the International Civil Aviation Organisation of 1947.
In Article 1 of this Agreement, the United Nations recognise the International
Civil Aviation Organisation (ICAO) as a specialized agency in the meaning
of Article 91 of the Charter. In Article 8 of the Agreement, ICAO is bound
to cooperate with the Trusteeship Council, particularly with regard to matters
with which ICAO is concerned. This would involve that the Chicago Con-
vention at least governs in all instances where its Articles do not conflict with
Articles 75 to 91 of the Charter. It appears, however, that in conflicting
legislation the Charter clauses would govern other legislation in a situation
analogous to a written constitution governing a law enacted thereunder to
support and regulate the practice of the constitutional principles of any given
state, although in our -case the Charter came into force after the Chicago
Convention. Thus both practice and international legislation so far appear
to be sufficiently clear to include trusteeship territories in the Chicago Con-
vention. It appears that in due course, in order to achieve completeness and
clarity, it would only be necessary to change the text of the Convention,
Therefore it is submitted that we cannot say that trusteeship territories are
not covered by the Chicago -Convention.
There are certainly constitutional distinctions to be made between mandates
and trusteeship territories. This is, for instance, clearly shown by Article, 77
of the Charter. We may probably say that the concept of trusteeship is an
acknowledgment of the principle of the League to institute a type of territories
to be granted independence and sovereignty at the earliest time, put on a
broader and more detailed
the
international constitutional foundation
in
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Charter,’ 8 although apparently no obligation to place a territory under
trusteeship exists under the Charter in contradistinction to the mandate-
system. If a territory is placed under trusteeship, what may be called the
international constitutional rules are more defined (though not altogether in
clear language) than in the Covenant. Thus we may say that also from this
viewpoint, the Chicago Convention nmust be conbtrued to include trusteeship-
territories by analogy, since as it does expressly include mandates in the
text.
d) There is no clarity yet as to who holds sovereignty over trusteeship
territories. This cannot be of any influence on the Convention. As for this
Convention, we may say that trusteeship territories must be construed like
mandates, as being under the sovereignty of the Trustee for the same practical
purposes as in the case of mandates. This cannot be applied, naturally, in the
sense of external sovereignty complete and exclusive in any instance where the
governing principles of the Charter indicate the contrary, because the parties
that adhere both to the United Nations Charter and the Chicago Convention
are bound by treaty to apply the governing principles of the Charter in
defining the extent of their fictitious sovereignty for the purposes of the
Chicago Convention.’ 9
We therefore need not locate sovereignty over trusteeship territories to
define the rules of cabotage, as we may have the texts of the Charter and
Convention for such purposes.20
We would have to distinguish, however, between the mandate system with
its practised “open door-policy”
in economical matters, of which many
examples in the mandate system have been cited by Cooper,2 1 and the trustee-
ship-system which appears in fact far more complicated, since it places the in-
terests of the inhabitants of such territories above the principle of equal econ-
omical treatment for all nations in such territories.22 But this distinction may at
the same time give us the rule with regard to trusteeship territories comparable
to the situation in mandate territories. In mandate territories there existed the
principle of equal treatment for all, including the mandatory power. In
trusteeship territories the interests of the advancement of the inhabitants will
in each case have to be considered first, and only if these interests do not
conflict with the principle of equal treatment of all other nations, the latter
principle can be practised. This may give us the solution to the question,
if a nation as a Trustee may for instance reserve cabotage to its aircraft.
18 See BoYD, THE UNITED NATIONS ORGANISATION HANDBOOK 85 (1946); KELSEN,
21Cooper, supra note 16.
221 OPPENHEiM, op. cit. supra note 11, at 205-206.
1 9
CHICAGO CONVENTION Art. 2.
THE LAW OF THE UNITED NATIONS 566 (1951).
2OAs to sovereignty .over trusteeship territories, see K.LSEN, op. cit. supra note 17, at
at 688 and 1I OPPENHEIm, op. cit. supra note 11, at 214; Lauterpacht and Kelsen principally
diverging in their views.
19531
AVIATION CABOTAGE
In case cabotage is reserved, (which some bilateral agreements indicate) and
the reserve is contested, we would have to ask, if this right can be based on
a paramount interest of the inhabitants of such territory. It is easily seen
that such a situation is far from satisfactory, as it may give the Trustee the
opportunity to cover his own interests with the alleged and proliably even
provable interests of the inhabitants of the trusteeship territory. In such a
situation may easily arise what the French call ditournement de pouvoir. The
situation calls for clarification.
It is submitted that none of the Trusteeship Agreements23 permits a
Trustee to reserve cabotage to aircraft of his own flag. As regards cabotage
for inhabitants engaging in aviation, what has been said in the case of con-
dominia would apply to trusteeship territories.
Most of the Trusteeship Agreements grant the right to enact legislation
in the trusteeship-territory in conformity with the laws of the Trustee and to
apply Conventions to which the Trustee is a party (this does not involve any
grant of sovereignty to the Trustee). This should only be possible within
the limits of the principles and provisions of the Charter which must govern
all such legislation. A regrettable exception has been constituted
in the
Trusteeship Agreement between the United States and the United Nations
regarding the former Japanese Pacific Islands.2 4 Article’8(3) of this agree-
ment expressly excludes all.foreign aircraft, unless they have been granted
special permission by the United States to enter the territory. It is a case
of a strategic area Trusteeship Agreement. 25 We may ask: who can tell for
how long an area may be of strategic value? It appears that in this instance,
as often in contractual practice, too much hurry has been applied to conclude
a treaty. It now stands there binding, even when the strategic value of the
territory may, due to some change in the strategic conditions of powers,
have entirely disappeared. Such a treaty clause may then become a pretext
to favour national aircraft without any justification, although I do not imply
any such intent in the subject of the particular case. But this instance’should
serve as an example that it would have -been more practical to draft any such
clauses subject to revision by the Trusteeship Council at any time a nation
may call for it, and to state this in an article or particular agreement to such
an effect, because it appears impossible to revise any such article otherwise.
Article 87(d) of the Charter appears to exclude such a revision. Article 15
of the Agreement indicates the same result. It is interesting to observe that
the Soviet Delegation had proposed to insert a revision clause in the Trustee-
ship Agreements.2 6
238 UNITm NATIONS TREATY SERIES [hereinafter U.N.T.S.] Nos 115-123: 10 U.N.T.S.
No. 1.
248 U.N.T.S. No. 123.
25U.N. CHARTER Art. 82.
“‘Cf. KELSEN-, op. cit. supra note 18, at 655 n. &
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Freedom of aerial Navigation for nations not parties to a trusteeship agree-
ment is expressly provided in the Trusteeship Agreements for Tanganyika
(Article 9); Ruanda Urandi (Article 9); Cameroons (British Administra-
tion; Article 9) : Cameroons (French Administration; Article 8) ; Togoland
(British Administiation: Article 9); Togoland (French Administration;
Article 8). No such clause is contained in the Agreements for Western Samoa,
New Guinea and Nauru. The exclusion oi foreign aircraft is provided in the
above mentioned Agreement for the former Japanese islands.
Since all Trusteeship Agreeients contain clauses to the effect that the
Trustee has to administer the trusteeship territories in conformity with the
principles of the Charter and in particular with Article 76, no exclusion of
other nations from cabotage-traffic appears permissible, with the exception
of the strategic trusteeship territory of the United States. The indicated
exception of a Trustee reserving cabotage to itself, if this is in the ipiterest
of the inhabitants of the trusteeship territory, need not be discussed here any
further, since it would always constitute a matter to be decided in the
particular case in question. No legal solution, as a construction of the human
mind, can be so perfect as not to prove subject to question in particular cases.
e) Principally we may say that in trusteeship territories Article 76(d)
of the Charter would have to govern the application of any rights reserved
to a contracting party of the Chicago Convention under that Convention.
It should be added that practice does not appear to apply these binding rules
of the Charter. 27
Exclusiveness
Article 7 (second sentence) of the Chicago Convention provides
that
cabotage privileges may not be granted from one contracting State
to
another- State. There is a minor observation to be made as to this provision.
It is submitted that this terminology does not really prevent an exclusive grant.
A State may grant cabotage rights to one other State without anything in
the agreement indicating any exclusiveness. It may not grant this same
privilege to another State. Such other State has practically no chance
to
maintain that Article 7 (second sentence) has been violated, because it would
have to prove the exclusiveness in the foregoing agreement. A State so charged
will be able to give manifold reasons why cabotage privileges have “accident-
ally” been -granted only in one agreement. It appears that only a grant with
the express provision not to grant cabotage privileges to another third State
would be a violation of Article 7, in practice, since a silent agreement to the
same effect would x4ot be binding, ‘but could nevertheless be carefully observed
by the parties.
2753 U.N.T.S. 248: Air Agreement New Zealand-France, with regard to Western
Samoa, 9I1, in which only freedoms 1 and 2 have been granted.
