Freedom of innocent passage at sea (also called freedom of navigation) is well-established through customary international law and international conventions. However, freedom of overflight is not exercised according to customary international law, and no international convention on freedom of overflight (International Air Services Transit Agreement of 1944) (Transit Agreement) is universally accepted. The debate at the beginning of the era of aviation between two schools (the freedom of the air school and the sovereignty of the air school) cuts to the heart of the question of why freedom of overflight is not allowed. The Paris Convention 1919 embraced sovereignty of the air, and the Chicago Convention 1944 leaned toward the extreme version of the sovereignty of the air principle. However, fundamental changes over the past seventy years (namely changes in law, policy, international politics, and technology) demand that we revisit freedom of overflight. There have been efforts by the International Civil Aviation Organization (ICAO) to revitalize The Transit Agreement. Although the Sixth Worldwide ICAO Air Transport Conference failed to discuss the importance of freedom of overflight, the ICAO must continue to call for universal adherence to the Transit Agreement for the sound development of international air transport and for minimum multilateralism in international air transport.
Air and Space Law