1. HISTORY AND DEVELOPMENT OF AIR LAW 1

2. INTRODUCTION There is considerable difference of opinion in academic circles around the problem of finding a satisfactory definition of Air law. Yet a study of standard works on the subject will reveal a common formula which has found more or less general acceptance. It runs as follows: “Air Law is a body of rules governing the use of airspace and its benefits for aviation, the general public and the nations of the world. 2

3. The study of air law is relevant for a number of reasons: Aviation is still in the process of achieving its next phase of development and arouses interest in ever larger circles. For Many persons and organizations it is a matter of practical importance to gather at least some basic knowledge of the subject. When a person boards an aircraft as a passenger and reads the small print on his ticket he suddenly realizes that he is bound by the provisions of the Warsaw Convention. It will be useful for him to possess some means of appreciating the benefits and disadvantages of the rules to which he has become bound. 3

4. The study of air law is relevant for a number of reasons(2) Air law is intertwined with other areas of law on several points. It involves many aspects of constitutional law, administrative law, civil law, commercial law and criminal law. Its international element, however, is always paramount. Air law offers a striking example of how existing legal rules can swiftly be adapted to the impressive technology progress achieved in recent years. 4

5. THE ORIGIN As early as 1900 the French Jurist Fauchille suggested that a code of international air navigation be created by the “institute de Droit International”, and it is interesting to note, en passant, that this was one of the rare instances where legal process went ahead of technology. 5

6. In 1903 the discussions were given a new impulse: aviation had become a matter of topical interest and concern because the Wright Brothers had just successfully carried out their first engine- powered flight. It is possible to go back even further into the past when one takes into account the national rules and regulations in various countries. In France, For instance, a police directive was issued on 23 rd April 1784, aimed directly and exclusively at the balloons of Montgolfier Brothers; flights were not to take place without prior authorization. The purpose of this measure was of course to protect the population. 6

7. The first concerted attempt at codification on an international scale took place before 1910, when German balloons repeatedly made flights above French territory. The French government was of the opinion that for safety reasons it would be desirable for the two governments involved to try and reach an agreement to resolve the problem. As a result the Paris Conference of 1910 was convened. Contrary to general assumption, this Conference did not adopt the “freedom of the air” theory. 7

8. At that time the general tendency was already in favor of the sovereignty of states in the space above their territories. This is borne out by the text of the draft Convention approved by the plenary session of the Conference. 8

9. However, due to political (not legal) disagreements the Conference ended without achieving any tangible results. It is only useful effect was that states had had an opportunity of exchanging views on this new area of law. It is apt to recall in this context that in maritime law a long historical evolution and influential opinion of scholars like Hugo Grotius in his Mare Liberum had led to a large measure of freedom on High Seas. A similar evolution is conspicuously lacking in Air Law. The influence of customary law in air law is considerably less evident than in maritime law. 9

10. Following the First World War, on 8 th February 1919, the first scheduled air services between Paris and London came into operation and it is considered necessary for existing regulations to be incorporated into a Convention. A choice now had to be made between a free airspace analogous to the principle of maritime law and an airspace governed by the sovereignty of the underlying states. Due to the aftermath of the War there were strong tendencies to defend national interest, so that the latter principle prevailed. 10

11. SOURCES OF AVIATION LAW; A closer look at the definition recorded above leads almost automatically to the question; what exactly does this body of rules which governs the airspace and make up air law consist of? The following classification may provide some useful guidance; Multilateral Conventions Bilateral agreements National law Contracts between states and airline companies Contracts between airline companies General principles of International law. 11

12. MULTILATERAL CONVENTIONS Multilateral conventions are the primary source of air law. In stating this fact I would emphasize that air law has taken on its international character and emerged on an international aero plane almost from the very beginning, i.e. following the first scheduled flight between Paris and London; the Paris Convention was concluded in 1919, the year in which that flight took place. Due to the rapid developments in aviation and with the law makers attempting to keep pace, custom has largely been bypassed as a source of law, the result being that air law today consists mainly of written law. 12

13. The most characteristic feature of an aircraft is its speed, in addition to the fact that it moves in three dimensions. Speed enables an aircraft en-route to a particular destination to pass through the airspace of several countries, each having its own national laws and customs. Consequently, it passes from one legal sphere of influence to another. 13

14. It is clearly a matter of prime importance to those involved in aviation – e.g. the state, the owner, the operator, the passengers, the owner of the goods carried on board; the mortgage holders- to make sure that their rights are properly safeguarded. Achieving this object is one of the most important elements in air law. The implementing measures are all to be found in international agreements and Conventions. 14

15. Another classification which is relevant for air law is that of military and civil aviation. Military aviation, however, is outside the scope of this class and will therefore not be considered. 15

16. 16 The classic demarcation between national and international law and between private and public law is also applicable to air law. Private international law, in this context, means the body of rules pertaining to the relations between private persons involved in the operation and use of aircraft whereas public international law is the corpus of legal norms pertaining to the relations involving states and international organizations in respect of those activities.

17. THE PARIS CONVENTION OF 1919 The above convention was the first legal instrument to enter into force in the province of air law. It was ratified by 32 nations. Complete and exclusive sovereignty of states over the airspace above their territory was recognized, in conformity with the Roman adage: “Cujus est solum, ejus est usque ad coelum et ad inferos” 17

18. In order to achieve a certain degree of uniformity some technical annexes were added to the Paris Convention, dealing with such matters as standards of airworthiness, certificates of competency for crew members, etc. the Convention also established, in its Article 34, the CINA, the Commission Internationale de la Navigation Aerienne, which was granted far –reaching regulatory powers chiefly directed towards technical matters. Other functions listed in Article 34 are: centralized gathering and publication of information on air navigation and the rendering of advice on matters submitted by member states. 18

19. DEFINITION OF AN AIRCRAFT. The Paris Convention contained the first generally accepted definition of the term “aircraft” which read as follows: Le mot aeronef designe tout appareil pouvant se soutenir dans l’atmosphere grace aux reactions de l’air. This rather sweeping definition, included aircraft, airships, gliders, free balloons, barrage balloons and helicopters. The criterion which should have been given preference is whether the machine has any lift. Having become outdated, the Convention was eventually replaced, in 1944, by the Chicago Convention, but the latter failed to bring about a change in the definition of aircraft, reading “Aircraft is any machine that can derive support in the atmosphere from reactions of the air”. As most other Conventions lacked such a definition altogether the Chicago formula, which had been taken from Paris Convention continued to serve as cornerstone of aviation law for another decade, although authoritative opinions were also taken into account on a number of occasions. 19

20. Eventually, on 6 th November 1967, ICAO brought out a new definition reading:” Aircraft is any machine that can derive support in the atmosphere from reactions of the air other than the reactions of the air against the earth’s surface”. Its distinctive feature was that the words ‘other than reactions of the air against the earth’s surface” had been added. This addition ensured that the hovercraft was excluded from the definition of “aircraft”. 20

21. It is debatable whether rockets fall within the scope of the definition just quoted. Cruise missiles do not derive support in the atmosphere from reactions of the air, unlike the Second World War flying bombs (V-I). They will not be considered in this treatise as they are subject to special rules of military law. According to the Multilingual Aeronautical Dictionary the definition of a rocket motor is as follows: ‘device for producing thrust by the ejection of matter, usually in gaseous form, the thrust being generated by a propellant carried in the system”. 21

22. THE IBERO-AMERICAN CONVENTION AND THE PAN- AMERICAN CONVENTION. The Paris Convention was followed by the Ibero- American Convention concluded at Madrid in 1926. The latter contained provisions largely similar to those of the Paris Convention, provisions which were also recognized, however, by several Latin-American states invited for the purpose by the Spanish Government. 22

23. In 1927, the United States initiated the drafting of an air navigation Convention for the Americas, i.e. the pan- American Convention. This Convention was signed at Havana in 1928. A comparison between the Pan- American Convention and the Paris Convention shows that the former did not provide for a commission like the International Commission for Air Navigation, nor did it contain any technical annexes. Unlike its predecessor, the pan-American convention failed to achieve a measure of Uniformity in Air Traffic regulations. 23

24. 24 In 1927, the United States initiated the drafting of an air navigation Convention for the Americas, i.e. the pan- American Convention. This Convention was signed at Havana in 1928. A comparison between the Pan- American Convention and the Paris Convention shows that the former did not provide for a commission like the International Commission for Air Navigation, nor did it contain any technical annexes. Unlike its predecessor, the pan-American convention failed to achieve a measure of Uniformity in Air Traffic regulations.

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