Medieval Roman law had a maxim grounded (so to speak) in what at the time was earthy common sense: cuius est solum, eius est usque ad caelum et ad inferos – whoever owns the soil, it is theirs up to Heaven and down to Hell. This allowed sensible legal principles to manage disputes between neighbours: you can cut down branches overhanging your property and stop your neighbour tunneling underneath it. The issue of stopping your neighbour flying over your land did not arise, for one very good reason: neighbours didn’t fly.
Then along in the early twentieth century came people who, astonishingly, did fly, in new-fangled aeroplanes. How to stop them crashing into each other, or flying where they shouldn’t?
A jungle of legal and procedural norms and standards sprouted, first nationally then (as the range of aircraft extended further and further) internationally. The first international gathering to discuss air navigation took place in Berlin in 1903, followed by a meeting in London in 1912 to agree some rules for aircraft radio frequencies. The industry developed apace. A major agreement was signed by 52 states in Chicago in December 1944, creating a specialised UN agency to preside over global rules for civil air travel, the International Civil Aviation Organisation (ICAO).
Right from the start, civilian air travel had political and diplomatic dimensions. The US – for reasons of its size and entrepreneurial energy – had raced ahead in setting up new airlines. Other states wanted to stop US carriers taking over the world’s air traffic. So certain ‘freedoms’ were created under international law, for trading between states large and small as equal partners. Here are the first six:
1) to fly over a foreign country, without landing there
2) to refuel or carry out maintenance in a foreign country on the way to another country
3) to fly from one’s own country to another
4) to fly from another country to one’s own
5) to fly between two foreign countries during flights while the flight originates or ends in one’s own country
6) to fly from a foreign country to another one while stopping in one’s own country for non-technical reasons
The first freedom allows countries to get payment for overflight rights by other countries’ carriers – a nice little earner for governments. The sixth freedom is excellent for (say) countries in the Gulf: it allows their airlines to pick up passengers in Australia and take them through to London.
My own introduction to this arcane world of international aviation politics came in 1984, when I returned from a posting in Belgrade to head the FCO’s small aviation section in a now long-abolished formation called Maritime, Aviation and Environment Department (MAED). Up the corridor dealing with Maritime (huge Law of the Sea negotiations and haggling with France over an improbable plan for a Channel tunnel) was a lanky young man called Kim Darroch, later the UK’s Ambassador to the EU and now our National Security Adviser.
The focus of my job was UK/US air services arrangements. These were complex and bad-tempered: operational issues were asymmetrical, and transatlantic passenger loads were heavy and lucrative. The US had a huge territory many international ‘gateway’ airports into the territory, and many national airlines. The UK had a small territory, far fewer gateways and far fewer airlines. Above all, it had the state-owned British Airways (BA), much the largest national carrier and a prime target for Mrs Thatcher’s privatisation policy. The Americans pressed us to allow more US carriers to fly into our gateways, but would not let BA make internal flights in the US (eg take passengers from London to New York and then on to Chicago).
These negotiations gave me a depressing insight into the way governments work. I joined a meeting at the Department of Transport (the lead Whitehall Department on civil aviation negotiations) to consider a US demand that we open Manchester airport to more US carriers and/or more flights from the current carriers. BA objected that the competition would gnaw away at their margins and be ‘unfair’: US carriers could take passengers from Manchester to (say) Chicago but then on to many other US cities, whereas BA could take passengers only from Manchester to Chicago. It was quickly agreed to reject the US request.
The point here is that in deciding the UK position, the government back then focused only on the specific, visible and articulate interest of BA – the more general and invisible interests of people and businesses in the greater Manchester area who would have benefited from a surge in US business and tourist travel were not even mentioned. Now thanks to social media and the wider information revolution all that has changed – perhaps to the point of creating administrative paralysis as hard-pressed civil servants try to formulate and manage myriad clamorous interests simultaneously.
The main problem of my time in MAED was not in fact these bilateral air service bickerings, important as they were. In the 1970s a swashbuckling entrepreneur called Freddie Laker had set up his cheap Laker Airways offering cheap Skytrain flights between London and New York. Laker Airways had crashed into a spectacular bankruptcy in 1982. Freddie Laker sued BA and various US carriers for conspiring to rig the transatlantic market (fares and schedules) to put him out of business. Moreover, he sued them using US antitrust law which offered the prospect of colossal punitive triple damages if the case were upheld. Separate proceedings against BA in a US criminal court were launched.
Whatever the merits of Laker’s legal claims, the very fact that they were dragging on in the US courts was a huge obstacle to BA’s privatisation. The potential triple damages liabilities had to be included on the company’s balance-sheet for would-be investors, thereby hugely reducing the price the government would get for selling BA into private ownership. This problem was right at the top of the agenda when Mrs Thatcher was talking to President Reagan, and down in the FCO aviation boiler-room I was helping prepare the briefing. She pressed the President to stop the criminal case so that a deal could be cut between the parties on the civil anti-trust action.
US diplomats had insisted that it would be a ghastly abuse of Presidential power to block a criminal case in the way the Brits requested, and so it would never happen. It happened. President Reagan did Mrs Thatcher a big favour as he liked her style and free-market zeal. And lo!, BA was privatised.
The BA privatisation and the emergence of new carriers like Virgin Atlantic help drag governments away from clumsy one-size-fits-all bilateral air service agreements under which the two states involved sluggishly micro-managed bilateral civilian air services right down to detailed fare-setting, special offers and arrival times. Now airlines enter the market and compete as they see fit (especially across the EU). New airports too can open. This flexibility makes the choices available to people to criss-cross Europe (and indeed the UK itself) cheaply by air so wide and dynamic.
While international civil aviation runs smoothly and amazingly safely thanks to the invisible networks of multilateral conventions and bilateral agreements, there have been a tiny number of grim incidents involving governments actually shooting down civilian airliners for supposedly improperly entering national airspace.
Back in 1983 the Soviet Union destroyed Korean Airlines flight 007 over the Sea of Japan. Initial Politburo denials of involvement were discredited when the US Ambassador to the UN Jeane Kirkpatrick commissioned an audio-visual presentation in the United Nations Security Council, using audio tapes of the Soviet pilots’ radio conversations and a map of Flight 007’s path to its doom. Moscow used the USSR’s veto at the UN to block a resolution condemning its actions.
The US subsequently in 1988 had a disaster of its own, when the USS Vincennes guided missile carrier blew up an Iran Air flight 655 over the Strait of Hormuz mistakenly suspecting a hostile Iranian fighter aircraft. The US eventually paid over US$60 million in compensation to the families of the victims and Iran Air, but denied any legal liability and did not apologise formally. Newsweek quoted then President George H W Bush: ‘I’ll never apologise for the United States of America. Ever. I don’t care what the facts are.’
These and other tragic episodes have led to stepped up safety and communication requirements. These days, millions of air travelers may be driven mad by security checks as they get on a plane and then by Heathrow’s immigration queues, but they are unlikely to be deliberately shot down by a reckless or blundering government.