NEVER LET A CRISIS GO TO WASTE 93 in Britain, France and Germany, limiting access to their sovereign airspace6. The Paris Convention of 1919, the first multilateral convention on international civil aviation, recognised that all States have sovereignty over their national airspace, a concept embraced by the US in the Air Commerce Act of 1926. In the wake of the Great War, and in the span of less than ten years, closed skies became the new normal. The Paris Convention of 1919 was largely a regional instrument guiding European aviation – the first transcontinental flight would not occur until almost a decade later. Most countries in the American continents did not join the Paris Convention, opting instead to join the Havana Convention of 1928, which took a more liberalised approach to economic aspects of air carriage7. Differences between the Paris and Havana Conventions forecasted an impasse between the US and British governments that would occur during negotiations at the Chicago Conference of 19448. What was that impasse? During World War II, Europe’s aviation manufacturing industry had been bombed to ruins. In the US, on the other hand, Boeing, Douglas, Hughes and Lockheed were making huge bombers and transport aircraft that could be turned into civilian aircraft with little additional effort. Great Britain feared being swamped by America’s airlines, so it marshalled the delegations of the Commonwealth and imposed, on the Conference, a system of reciprocity and bilateral agreements for air transport. Showing that most British humour, delegates then dubbed these restrictions the ‘freedoms’ of the air. The restrictions were etched into stone in the first bilateral air service agreement between the UK and the US, agreed in Bermuda in 1946. At Bermuda, the US and UK reached a compromise over many points of discrepancy in Chicago. The US accepted the UK’s proposal to have tariffs (fares) set by an international organisation – IATA – and the UK, in turn, agreed to allow airlines to set capacity and to grant designated air carriers a fifth freedom traffic rights – the ‘right’ to fly on to a third country after dropping off or picking up passengers. This became the model for more than 40 years. Although the US favoured economic liberalism at the Havana and Chicago Conferences, in reality, it created a highly regulated oligopoly within its own 6 Malgorzata Polkowska, “From the Paris Conference of 1910 to the Chicago Convention of 1944” (2008) XXXIII Annals Air & Space L 59, 62. 7 Michael Milde, International Air Law and ICAO, (Utrecht, The Netherlands: Eleven International Publishing, 2008), 13. 8 The following history of the Chicago Conference and Bermuda Agreement is from: L. Welch Pogue, “The International Civil Aviation Conference (1944) and Its Sequel, the Anglo-American Bermuda Air Transport Agreement (1946)” (1994) XIX(1) Annals Air & Space L. 1; Jeffrey N. Shane, “Diplomacy and Drama: The Making of the Chicago Convention” 32(4) The Air & Space Lawyer 1 (American Bar Association, 2019).
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