Mills v. Congoleum Corporation322 the United States Supreme Court extended the concept of extra territoriality by introducing a test of balance that ensured consid-eration by one State for the interests of another State.
The above principle of extra-territoriality might not sit comfortably in the instance of a State requiring PNR data from a .ight over-.ying its territory as there is no stricto sensu application of a requirement in a foreign territory. The most fundamental principle of public international law, that of State sovereignty, is embodied in Article 1 of the Chicago, thus importing the principle into the tenets of air law. This Article provides that Contracting States recognize that every State has complete and exclusive sovereignty over the air space above its territory. The territory of a State, for the purposes of the Convention, covers the land areas and territorial waters adjacent to and under the sovereign, suzerainty, protection and mandate of the State concerned.323 Arguably, these provisions would give the United States the right in limine to prescribe requirements on aircraft .ying over its territory. Article 12 of the Chicago Convention provides, inter alia, that each contracting State undertakes to adopt measures to insure that every aircraft .ying over or maneuvering within its territory and that every aircraft carrying its nation-ality mark, wherever that aircraft may be, shall comply with the rules and regula-tions relating to the .ight and maneuver of air raft there in force. This rule can apply toa foreign carrier whois over-.ying the territoryof any Statehavinga regulation that certain data pertaining to a .ight that over-.ies its territory has to be submitted to that State. Also important is Article 9 of the Convention, which allows a Contracting State to restrict or prohibit an aircraft from .ying over its territory for reasons of military necessity or public safety. The provision goes on to say that each contracting State could also reserve the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety and with immediate effect, temporarily to restrict or prohibit .ying over the whole or part of its territory, provided such action would apply without distinction of nationality to aircraft of all States.324
At the 28th Session of the International Law Association held in Madrid in 1913, the meeting drew up text which stated that it was the right of every State to enact prohibitions, restrictions and regulations as it may think proper in regard to passage of aircraft through the airspace above its territory and territorial waters.325
territoriality by one State against the other cannot in any way be justi.ed under the principles of
public international law.
322595 F.2d 1287; 66 ILR at 487. See also Timberlane Lumber Company v. Bank of America,
549 F. 2d 597 (1976); 66 ILR at 270.
323Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7
December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006), Article 2.
324Convention on International Civil Aviation (Chicago Convention), signed at Chicago on 7
December 1944 (ICAO Doc 7300/9, Ninth Edition, 2006), Article 9(b).
325International Law Association, 28th Report, Madrid, 1913, 533–545 at 540.
D. The Passenger Name Record 129
However, the text contained a caveat that such restrictions should be subject to the rights of subjacent States and the liberty of passage of aircraft of every nation.326 The balance advocated at the Madrid meeting of the ILA goes to show that even as early as the beginning of the last century, the thinking was that a State ought to allow other States free passage for their aircraft through the airspace above its territory. There is no doubt that the same position prevails even now, particularly through the currently applicable International Air Services Transit Agreement (IASTA) which was concluded at the same time as the Chicago Convention in December 1944 and has been rati.ed by many ICAO Contracting States. IASTA allows aircraft of foreign States freedom of peaceful transit (over the airspace of a State) and freedom of making non-traf.c (non-revenue) stops for such purposes as refuelling and repair. It has been acknowledged that without these two freedoms, the air transport industry could not survive.327
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