INTRODUCTION TO INTERNATIONAL AIR LAW

Individuals, Kingdoms, Empires, and the Modern States have throughout history laid claim over territories that they consider to be theirs. Claims and resulting disputes have been confined to the administration of rights over lands. On the other hand, air was considered to be ‘free for all’. Early flights of manned aircrafts were seen was seen as an astonishing feat of mankind, and not as a mode of transport that could violate public or private rights.

The subsequent development of fixed-wing aircraft technology raised concerns regarding the private rights of individuals, it was widely argued that free flight of aircrafts resulted in trespass, and hence violated the private rights of individuals. This argument was based upon the reasoning that the owner of the land owns the space above the ground as he can occupy or make use of, in connection with the enjoyment of the land.

This question was considered in the case of Hinman v. Pacific Air Transport[1], wherein the court held that traversing the airspace above the land was not, in itself, a trespass at all, but was a lawful act unless done under circumstances which would cause injury to the owner’s possession. One such circumstance was laid down in the case of Smith v. New England Aircraft[2], it was held that airplanes flying at low altitudes over private land constituted a trespass by reason of the noise and presence of the aircraft and its occupants.

The position with respect to private rights over airspace was settled in the case of United States v. Causby[3], Justice Douglas held that “the air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim."

Private ownership of airspace over property has been subjugated to the good of the general public. The old doctrine of private property extending upward indefinitely was fine as long as it was merely a theoretical concept. At that time, the air at higher altitudes was not being exploited. However, with the advent of man’s flight and modern technology, the air was being used, and it became expedient to transfer whatever theoretical property rights the individual formerly had to the state.[4]

STATE SOVEREIGNTY OVER AIRSPACE

World War I served as a testbed for the use of the airplane as a weapon. Airplanes demonstrated their potential as mobile observation platforms, then proved themselves to be machines of war capable of causing casualties to the enemy. States realized that it was pertinent to exert rights over the air above its territory to primarily safeguard its military interests. Hence, all the states involved in the war adopted a protectionist approach towards their airspace.

In May 1910, the French Government called for a meeting in Paris for the purpose of determination of the ‘principle of aerial sovereignty’, the conference agreed on certain principles which carried forward to the Versailles Peace Conference of 1919 which aimed to establish an international regulation on aviation. A total of 19 states participated in the international conference, which concluded an international instrument tilted Convention Relating to the Regulation of Aerial Navigation, also known as the Paris Convention of 1919.

State Representatives at the Versailles Peace Conference of 1919

The convention recognized the ‘principle of aerial sovereignty’ as full and absolute; provided for freedom of international air navigation subject to state sovereignty and security concerns; and provided that all aircrafts will carry the nationality of the state of registration. Article 1 of the Paris Convention, 1919 provided that “the High contracting Parties recognize that every power has complete and exclusive sovereignty over the air space above its territory.”

In addition, the convention provided for the safe conduct of air navigation, including provisions for airworthiness certificates, licenses for pilots, and international rules for the air, including signals, lights, collision prevention, and procedures for landing and moving on the ground.[5] However, the Convention was considered to be a diplomatic failure.

As a consequence of the failure of the United States to ratify and join the League of Nations, and therefore not joining the convention, the rules and provisions of the Paris Convention did not apply to the Americas. As a result, there was a need for a separate form of international cooperation on a regional American basis. To establish rules for air navigation an International Conference of the American States was held in Chile, in 1923. The conference resulted in the adoption of the Havana Convention, 1923. The Convention provided for an Inter-American Commercial Aviation Commission and provided for provisions similar to that of the Paris Convention,1919. The ‘principle of aerial sovereignty’ was also carried forward from the Paris Convention.

The second World War was a catalyst in the promotion of post-war cooperation, states felt the need for a singular and unified international treaty governing matters concerning international civil aviation, whereby the Convention on International Civil Aviation was adopted in 1944. The convention reaffirms the principle of aerial sovereignty as applicable to date.

DEMARCATION OF AIR AND SPACE

Issues concerning sovereignty also include the demarcation of air and space. Vertical demarcation of air territory is a widely debated issue due to the absence of international legislation governing where air territory ends and where space territory begins. The most accepted rule for determination of the boundary is the ‘Karman Line’ which suggests that the jurisdictional limit of airspace extends to a hundred kilometers from the mean sea level.

The vertical delimitation of the air space has not yet been settled. No treaty regarding outer space defines it. What is clear is that no state has any claim to outer space. Different proposals have been made, such as the upper limit of the atmosphere, the limit of the earth’s gravitational effects, the demarcation line between aeronautics and astronautics, the area which a state could effectively control, a clearly defined limit fixed by distance, or finally, a more functional approach. None of these proposals have come to form a platform for deciding the vertical limit. For now, it is safe to say that the upper limit of a state’s rights in the air space is above the height at which an aircraft can fly.[6]

INTERNATIONAL CONVENTIONS: CHICAGO AND BEYOND

The modern international aviation law regime is comprised of five major Conventions, each convention deals with a specific aspect of aviation law: (i) Convention on International Civil Aviation referred to as the ‘Chicago Convention 1944’, (ii) The Convention on Offenses and Certain Other Acts Committed on Board Aircraft also known as the ‘Tokyo Convention, 1963’, (iii) The Convention for the Suppression of Unlawful Seizure of Aircraft also known as ‘Hague Convention, 1970’, (iv) The Convention for the Unification of Certain Rules for International Carriage by Air also referred to as the ‘Montreal Convention,1999’, (v) Beijing Convention, 2010.