AOPA Turbine Pilot Magazine - August 2017 - 24

PILOT COUNSEL

Rules of the air

BY JOHN S. YODICE

Flying general aviation internationally
GENERAL AVIATION pilots are flying more internationally, and with more ease than one would expect. How
the law developed allowing this ease of international
flight is not well known. Yet pilots are interested.
Last month in this column I briefly traced the history
that led to these legal fundamentals: (1) the navigable
airspace overlying a country is subject to the "complete
and exclusive sovereignty" of the underlying country;
(2) on the other hand, the navigable airspace overlying
the high seas is outside the sovereignty of any country; and (3) there developed an international treaty
that allows pilots to fly into and over the airspace of
other contracting parties on a reciprocal basis ("Pilot

If you observe the rules of Part 91 while flying in
another ICAO country, you will probably be in
compliance with that country's flight rules.

JOHN S. YODICE

is a longtime
aviation attorney,
flight instructor,
and Cessna 310
owner.

24 | AOPA PILOT August 2017

Counsel: Who Owns the Air?" July 2017 AOPA Pilot).
This month I will summarize the treaty development of
the rules that allow these international flights.
The treaty, called the Chicago Convention, came
into force in 1947, formalizing the International Civil
Aviation Organization (ICAO), an agency of the United
Nations. Generally, each country agrees that private civil
aircraft of the other contracting countries may fly into
and across its territory without the necessity of obtaining prior permission (although advance notification,
customs and clearance requirements, et cetera apply;
and airline and commercial aviation have additional
requirements). This right of private international flight
is premised on efforts to adopt uniform international
standards. Each country undertakes to adopt flight rules
as uniform as possible with the flight rules promulgated by ICAO, and to ensure that civil aircraft bearing
its respective nationality marks (the familiar N number
assigned to U.S. aircraft) comply with the flight rules of
the countries in which they fly. Each country also agrees
to require its aircraft, while operating over the high seas,
to comply with the flight rules established by ICAO.
The flight rules of the various contracting countries are uniform in important respects. But, in the
exercise of their sovereignty, countries have differences. Each country must notify ICAO of how its flight
rules differ from the ICAO standards of Annex 2 to the
Chicago Convention.

In the United States, FAR 91.703 prescribes the
rules that apply to foreign flight of N-numbered aircraft. It specifies that if you are operating an aircraft of
U.S. registry outside the United States you must comply with the flight rules of the foreign country in which
you are operating. If you are flying over the high seas,
you must comply with the Rules of the Air of Annex 2
to the Chicago Convention.
Few U.S. pilots have studied, or even seen, Annex
2. Even fewer have been exposed to the air regulations of other countries. This is because the Chicago
Convention has generally achieved its objective of standardizing the flight rules. While flying over the high
seas, if you are observing the rules of our U.S. FAR Part
91, you will automatically be in compliance with Annex
2; while flying within another ICAO country, if you are
observing the rules of Part 91, you will probably be in
compliance with that country's flight rules.
But many countries have flight rules that differ from
Annex 2. The more important differences are picked up
fairly quickly and easily. Years ago when planning to fly
into Canada, I learned that it was illegal to fly VFR over
an undercast, something that is not illegal in U.S. airspace. And, again years ago, planning to fly in Europe,
I learned that I could not fly VFR at night. If you are
planning to fly into or over a foreign country, you should
try to learn, in advance, the differences that may have
a bearing on your flight. Other pilots, flight instructors,
and FBOs are usually reliable sources. ICAO encourages
countries to put this information in their aeronautical
information publications. But, remember, the differences are from Annex 2, not from FAR Part 91.
However, the system works. We can be comforted
by the fact that U.S. pilots flying internationally have
not been getting into serious trouble by following Part
91, and by learning each country's local flight rules.
A historical question is how the United States has
exercised its sovereignty of the navigable airspace
above it. The federal government of the United States
has assumed control of the U.S. navigable airspace
to the exclusion of the state and local governments.
Landowners have rights in the airspace over their
property to the extent that they can practically and
reasonably use the airspace (no spite poles), but subject to local government control such as zoning or tall
structures acts, and a sensitive and intricate coordination with the federal government.
AOPA

AOPA Turbine Pilot Magazine - August 2017

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