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© International Journal of Advanced Legal Research

 MODULE – II
INTRODUCTION TO
INTERNATIONAL AIR
LAW

© International Journal of Advanced Legal Research

© International Journal of Advanced Legal Research
 MODULE – II: INTRODUCTION TO INTERNATIONAL AIR LAW

Introduction: International aviation law is an important phase of international law which has
undergone massive change since the 1 st world war. It’s mostly because of the momentous
technological developments of the present century, but the legal rules have a varied and an
interesting history not all of which can be classifies as modern. Paris convention in the year
of 1919 was one of the 1st developments in terms of international law, the question of the
control of international aviation has been opened in the modern period b question of the
control of international aviation has been opened in the modern period by the turn of the
present century international aviation law in common with other branches of the law of
nations-has drawn extensively upon other segments of judicial science. This has been
especially true in its relation to maritimelaw.

International Aviation Law covers the rules which apply to both domestic as well as
international aviation. These rules are the one which govern the complex relationship
between states, service providers and the passengers. The rules also rule the impact of
aviation on the environment and on the individuals affected by aircrafts operations as well.
Air law is found on the grounds of aviation in the process of achieving the next phase of
development and interest in larger circles as well for example when a person boards a flight
from London to Singapore and he suddenly reads the small print on the ticket actually he is
bound by the terms and conditions of the Warsaw convention. It will be useful to possess
some means of appreciating the benefits and disadvantages of the rules to which he has
become bound. Besides, Air law is intertwined with other areas of laws. It involves many
aspects of Constitution law, Administrative Law, Civil law, Commercial law and especially
Criminal Law. Its international nature is alwaysparamount.

History of Aviation and Air Regulations: The history of aviation is indeed one of the major
success stories of the mankind the early flying started with the kites, then it slowly graduated
to balloons and then to heavy air machines. The early aviators and experimenters worked
hard and risked their lives to achieve the feat of flying, which ultimately could be
accomplished. It is one of the most important discoveries it reminds us to remember in the
thanks giving of the most important adventure made by man that flying became the most safe,
fast and efficient way of travelling . In this chapter, an endeavor has been made to
recapitulate the story of aviation in a historical perspective, collating certain scarcely known
facts and recently researched manuscripts.

The Early Attempts: The annals record that an English Monk and philosopher Roger Bacon
(1214-1294) has designed the flying chariot. So had the famous Italian artist- scientist
Leonardo da Vinci (1452- 1519). He also designed a mechanism which would enable man to
operate a pair of flapping the wings by leg power but unfortunately this machine could never
get built of tested . In 1507, John Damian, a philosopher and physician at the Court of James
IV of Scotland, made for himself a pair of wings and launched from the high wall of the
Sterling Castle in an attempt to fly; he fell to the ground and was lucky to escape with just a
broken leg.60 Several other similar attempts to fly with winged contraptions or dives from
hilltops to achieve soft landing appear to have been undertaken for thrill and adventure, but
with limited or no success. Many such experiments took a toll of tragedy caused by much the
same blend of zeal and experimentation.

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60
Ibid, p.9.

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Flight with Kites: The Kites were an instrument of man’s earliest success in making a object
which is heavier than air to fly in the air.61 It is on the record that kites of a huge size had been
developed that could have lift a man and are known to have been used even for military
purpose as early as by 17th century by the Chinese and the Japanese as well. 62 There were
initial attempts that the Greek general, Archvtas, in the 40th BC, made several attempts to get
airborne. One day, the Greek general stumbled upon a sharp incline which broke the fall and
saved the Greek General. A Korean general had also once suspended a lantern from a kite as
a morale boosting signal to his troops. And a Japanese bandit in an ingenious attempt stole his
way into a castle by suspending himself from a large kite, presumable to steal some fish.

Airlift through Balloons: Another line of flying was the production of balloons, which
provided ascent, gave freedom of movement to fly but precious little control. A priest named
Francisco de Lana Terzi is believed to have produced the balloons which provided ascent,
gave freedom of movement to fly but with precious little control. A Jesuit priest named
Francisco de Lana Terzi is believed to have produced the first known design for a lighter-
than-air craft in 1670. He had toyed with the idea of a “flying boat" with four hollow metallic
spheres that would become lighter and float in the air; but it failed.63 It was only in the latter
half of the 18th century that enough knowledge had been gained and gathered in the Europe to
travel through the medium of air by hot air balloon. The Montgolfier brothers, Joseph and
Etienne followed this line of research to obtain lift to rise above the ground ad experiment
with paper bags in the kitchen of their farm- houses near Lyon. Later, on 5 June, 1783, the
two brothers, built a roaring fire in the market place of their native village, Annonay, and
ascended a smoke filled balloon made of paper andlinen."64

On 19 September 1783, the Montgolfier’s successfully demonstrated "in the presence of

Louis XIV and his Court, in sending to a height of about 1500 feet, a silk balloon filled with
hot air carrying a rooster, a sheep and a duck in a small gondola. All emerged safe from the
experiment except that the rooster suffered a broken leg, probably from a kick by the
sheep."65 Shortly after this success, the king of France offered a criminal for experimentation
in manned flight, but considering such pursuits worthy of "officers and gentlemen" two
daring French courtiers went up instead. Thus, the marquis of Arlandes and M Pilatre de
Rozier were to share the honor of being the first men to fly. They made a successful ascent in
a wicker gondola swinging beneath a Montgolfier hot-air balloon from Bois de Boulogne,
Paris on 21 November 1783. The aerostats, as the fliers were then called, stayed aloft for
twenty-five minutes, rose at least 300 feet, covered a short distance of 25 miles and made a
safe return to the ground."66 The era of lighter-than–air craft had been ushered. In fact, the
balloons soon became a common sight in the French skies and thereafter, the British,
Americans, Russians, Poles and Italians joined the French pioneers in the balloon parade.
They manufactured balloons for assorteduses.

61
Kites are believed to have been invented in China around 1000 B.C.
62
PC Swanborough, Aircraft and Airpower, (London, 1958), p. 2.
63
John WR Taylor,ed., Combat aircraft of the World, (London, 1969),p. 8. However, Chinese are believed to have known for
many centuries before that heated air weighs less and played with toys of hollow paper dragons inflated with hot air to
send thesealoft.
64
Lynn Poole, Ballooning in the Space Age, (New York, 1958), p.11.

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65
DHN Johnson, Rights in Air Space, (Manchester, Manchester University Press, 1965), p. 7.
66
Sir Robert Saundby, Early Aviation—Man Conquers the Air, (New York, 1971), p. 11. Also refer Lynn Poole, Ballooning in
the Space Age, (New York, 1958). P. 14.

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The scientists soon discovered that hydrogen being lighter than air could be used instead of
hot air because as air cools it becomes relatively less lighter and the balloon tends to descend.
So hydrogen balloons could ascend higher and stay longer in the sky. In 1783, J.A.C.
Charles, a French physicist, had filled a silk balloon with hydrogen gas and sent aloft. But
these were "free balloons" and depended on the mercy of winds. Till then, balloons could not
be steered and perforce floated with the wind rather unmanoeuvred. These were
unsatisfactory and hazardous too. Nevertheless, enthusiastic balloonists had been undertaking
flights for the exhilarating experience or for scientific investigation. It is, of course, on record
that balloons have ascended to the troposphere and even the stratosphere. The record height
flown in a balloon so far is 1,02,000 feet. Chronicles have it that in August 1931, Piccard
flew in a balloon to an altitude of nine and a half miles above theearth.67

Airships and Dirigibles: The next stage of development was the construction of airships
called “dirigibles or blimps” which remained aloft by buoyancy alone. These were based on
the Archimedean principle and were actually an adaption of the balloons. It was designed in
1784 in cigar like shape by Meusnier, a French army officer but with no propulsion as the
steam engine then existing was too heavy. For its success, the concept had to wait till the
invention of petrol-driven engine in 1890. As yet, these had neither propelling force nor
steering systems. But controls were gradually improvised. On 9 August 1884 a controlled
flight in an electrically powered dirigible was accomplished. It was the airship, “La France”
fabricated by Charles Renard and AC Krebs. It consisted of an envelope of Chinese silk and a
car of bamboo trolley work. It possessed power and controls sufficient to return to the point
of ascent and it made a circular flight of fivemiles.68

Shortly afterwards in 1900, Count Graf Ferdinand von Zeppelin, a German army officer,
developed an airship that was made of aluminum in large cigar-shaped streamlined hull,
inside which were compartments filled with hydrogen gas. It had air-screws propelled by
petrol engine. In July 1900 he flew in it over Lake Konstanz. Zeppelin was successful. By
1910 he had put in the air large passenger and cargo carrying airships which were self-
propelled dirigibles, albeit lighter than air.69 During the WW I, Zeppelins were used by
German Air Force for dropping bombs over London. Later, in 1919, the huge German airship
“Graf Zeppelin” flew round the world in twenty-one days. The success was widely hailed.
Generically airships had many disadvantages, inter alia, their shape and huge size which
made its control difficult in strong winds. Even greater danger came from fire because
hydrogen catches fire easily. As a result, over the years the airships were involved in a series
of accidents, and worst of these happened in 1937 to “Hindenberg” while landing at
Lakehurst, New Jersey, U.S.A., in which 36 lives were lost and this brought an end to the age
of airships. The tragedy was awesome and confidenceshaken.

The Conquest of Air: Sir George Cayley, an English scientist (who died in 1857) is
generally credited with establishing the basic principles of heavier-than-air flight. 70 He
invented the glider in 1804 and foretold that given a suitable engine it could be converted into
a flying machine. But it took pretty long to accomplish this aeronautical theory into practical
application.

67
Lynn Poole, Ibid, p.440.
68
Encyclopedia Britannica, 1969. P.468.

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69
Zeppelin’s LZ-13, HANSA, was a passenger carrying ship.
70
REG Davies, A History of World Airlines, (London, 1954), p. 3.

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Similar flights in heavier-than-air craft were made in 1855 by De Bris in a glider constructed
on the principle of the wings of an albatross. 71 But this flight too, primarily, remained at the
mercy of the winds and afforded scant control to the flyer. Nevertheless, several similar
flights in motor-less crafts were attempted by Lilienthal, Pilcher, Chanute and many others
before the end of the nineteenth century. Aviation in Ancient India: Latest researches into
ancient Sanskrit literature have established evidence of flying in India in the hoary past. They
have revealed the existence of certain manuscripts, one of which is entitled “Yantra
Sarwaswa” or Encyclopaedia of Machines. This tome is believed to be written by Maharshi
Bharadwaj presumably around 2000 B.C. A part of this encyclopedia is captioned Vimanika
Sastra (Aircraft Manual). The script of this Shastra is in Sanskrit and has been retold by word
of mouth down the generations. In the recent past this has been expounded and predicated by
Subbaraya Sastri nearly a century ago. This has now been translated and published in
English.72

It is interesting to find in this book, intricate details of aerodynamic designs, manufacturing

technology, metallurgical composition and construction procedures of aircraft. It contains
designs of VTOL vehicles as also double and treble-decker aircraft. It bears amazing
concepts of sophisticated radio and radar and precision photography. It also mentions of
techniques to harness different types of energies, integral and ambient, though “Darpan”
meaning mirrors and lens. In all probability this is an allusion to harnessing of solar energy.
A few slokas (stanzas) of this Shastra even deal with the qualification and training of pilots
and the kind of food and clothing to be provided according to seasons to keep them fit for
flying. It discusses of specially processed, treated and anointed clothing. Regarding food it
recommends five meals a day and food balls described as “Tadabhavaay-Satva Golavaah”
which seems comparable to energy/vitamin pills of today. As per this text a flier is not only a
trained professional, but a Yogi who has mastered 32 secrets of the “Vimaan”, the aircraft
hardware, and “Uddaan”, the flying skill. It is hard to dismiss this manuscript as fantasy, or
as a feat of clairvoyance; it sure is a glory of ancient India that stayed hidden for long in the
sands oftime.

Authenticated First Flight: In the recent past the first ever authenticated, controlled or
sustained flight by a man in a power driven, heavier than air machines was achieved in the
United States of America on 17 th December 1903 by the wright brothers Orville and Wilbur
Wright. Their vehicle was a biplane which was equipped with an elevator, rudder and
wrapping wings which measured 40 feet from end to end and was about 6 feet apart. The
engine was placed little right to the center on the lower wing and pilot had to lie flat on his
stomach to the left of the center to keep the machine in the balance. It was powered by the
petrol engine driving of air screws now days called a propeller. A series of five making
flights were taken by the wright brothers on a flat beach at the foot of the Big Kill Devil sand
dunes near Kitty Hawk, North Carolina, U.S.A the first flight flown in by Orville lasted for
about 12 seconds and landed 120 feet from the point of the takeoff it was a small flight, butan
important invention and a big forward movement which a man had conquered the air.There
was a lot of initial disbelief but as patience is the key to everything the Wright brothers kept
on working at their invention to improving it in various ways. By 1905 aero plane could fly
an hour covering a distance of almost 25miles.
There is, however another school of aviation history and research headed by Major William
O’ Dwyer , which apparently says that the Wright brothers were beaten into the air by more
71
Shawcross, Beaumont and Browne, Shawcross and Beaumont on Air Law, (London, 2nd Edition, 1951), p. 3.

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72
Maharishi Bharadwaj, Vymaanika Shastra-Aeronautics, propounded by Subbaraya Sastri and translated into English by
GR Josyer, published for International Academy for Sanskrit Research, Mysore in1973.

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than 2 years. According to the Major William the first to fly airplane was Gustav Whitehead,
a German engineer and an immigrant, who dies in Bridgeport in 1927 at the age of 53.
Whitehead’s flight was undertaken in 1901 off Lordship beach in Connecticut, USA and the
Major General William flew in a butterfly shaped acetylene powered monoplane. Initially
there were attempts to fly an aircraft by steam engines but in such an effort it crashed against
a wall hence the attention was switched towards acetylene engine. In the end the aircraft was
built with 3 such engines linked to the two large propellers. The wings of the aircraft could be
folded so that it could have been driven out to the field it was an aircraft which flew on
14thaugust 1901 it was initially flown for half a mile at an height not less than 3 feet above the
ground.

Experiments in Europe: It is quiet contrary that similar experiments were also being made
in Europe at that point of time when experiments were being conducted in some parts of the
USA. There was a practical aircraft designed by Langley which was capable of flight under
its own power. Again Alberto Santo Dumont, a Brazilian engineer, experimented in France to
get airborne. The other experiments and the later successful aviators were Lilienthal, Ferber
and Cody. Success came early for Dumont and he was the first one to get airborne in Europe
in an Aero Plane which was on 13th September 1906. This accomplishment stirred a lot of
public enthusiasm and evinced great interest. On this news, Lord Northcliffe, the British press
magnate commented: “This news is not that man can fly, but that England is no longer an
island.”73 Then even on 25th July 1909, Bleriot was one of the first men to fly across the
English Channel the vehicle was a monoplane and was flown from Baroques near Calais to
Dover and during the same time on 3rdNovember 1909 Henry Farman flew 144 miles in
approximately 4 hours and 6 minutes with these proven flights which gave people a new
realization, the traditional foundations of the military strategy and the age old concepts of the
national defense were rudely shaken. The security of international boundaries can no longer
be achieved by land fortifications or the navy blockades the mankind had conquered a new
frontier and nations now had no aerialshores.

The Early Uses of Aircraft: There is no doubt about the fact that the aircrafts were initially
used for military purposes and its exploitation for the combat roles. Therefore in the
beginning itself only the aircraft which were of military potential and sporting uses were
envisioned and recognized. The airships and aero planes were then deployed for tactical
reconnaissance and even for bombing purposes as well reflecting the potential that aerial
warfare can be a new trend in order to fight the war, Orville Wright in 1917 wrote “what a
dream it was, what a nightmare it has become.”74 However on the other hand, flying was a
passion for the enthusiast, hobby for the rich people who generally took part in the air races,
aerial demonstrations and for the joy rides. Despite these romantic exploits of adventure, the
aircraft was also used for functional purposes such as the airmail services which soon proved
the potential of the aircraft for other purposes rather than military. There was a new vista for
the new mode of transportation which had been opened, and the suitability for commercial
transport of mail, passenger and even cargo became very viable prettysoon.

Further development of aviation has been between two conflicting architectural requirements
and circumstantial compulsions for the combat as well as for commerce. During the wars, it
was the combat demands which led to the development and during the time when world was
at peace the commercial utilization got the fillip. This was due to the fact of maneuverability

73
Eugene M Emme, The Impact of Air Power, (1965), p. 5.

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74
John Taylor, n. 6 supra, p. 13.

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and stability in aeronautics which are mutually antithetical. It’s a proven fact that combat
needs speed and maneuverability and commerce demands stability and safety. It is a recent
development that both lines of requirement, defense and civil have got separated and at the
same time harmoniously shared the fruit of technological advance while continuing to grow
their own stature, identity and the specific roles as well.

The Growth of Air Carriers: The main credit for the formation of a genuine operating
company established was with a view to carry passengers to go to Germany. Even before the
WW-I, Count von Zeppelin, the fanatical crusader and the main visionary of the air travel,
had formed an airline named DELAG on 16 th October 1990, with a capital of around 3
million marks and with a fleet of 6 Zeppelin airships. The airline operated scheduled services
between Friedrichshafen and Dusseldorf. However there is a controversy to the fact that
weather DELAG was the world’s first regular passenger airline or not or was it mostly for the
joy ride purposes and for the pleasure trips. But with the stats from the period of March 1912
to November 1913 there were around 881 flights which were undertaken and covered around
65,000 miles and carried around 19,100passengers.75

However this data cannot be the one which can be completely banked given the fact that
those were the times when aviation was not very developed the aircrafts had small capacity
and the speeds were in fact quiet low of the aircraft at that point of time. Even in the United
States, the flights which were made by the wright brothers elicited no official recognition as
such and neither there was any state patronage as well. The public at large were quiet
indifferent, towards this brilliant development. Despite the development happening quiet
early the first attempt to operate the commercial flight was taken in 1914 by a company
called St. Petersburg-Tampa airboat line in 1914. In the USA, commercial aviation took off
quiet slow there were multiple factors such as wide distances which made air travel not very
feasible and there were other modes of comfortable transportation also availabletoo.

England too, though well aware of the aviation developments in Europe and elsewhere, made
little contribution on its part in the early stages of the growth of aviation. In France, however,
greater interest was stimulated but it was largely oriented towards military applications of
aviation technology. For the Soviet Union no authentic records of the development of
aviation are readily available and very little is known of any chronicled efforts. Nevertheless,
Aeroflot, the domestic and international flag carrier of the Soviet Union (till its
disintegration), was acknowledged as the largest airline in the world despite its classified
balance sheet and well-guarded secret of aircraftpossessions.
Formation of Air Force: Historically, France was one of the first nations to have an air force
in the world with approximately 200 planes. Its fleet mostly comprised of the Farman
biplanes, the Newport’s and Antoinette monoplanes. With the development of the military
aero planes it ensured faster speed, greater maneuverability, altitude attainment, higher
payload and suitability for multiple weapon configurations aswell.

Gradually , the concept of air power became more clearer and specific aircrafts were used for
specialized roles for example, air superiority, air defense , ground attack , tactical air support ,
tactical and strategic reconnaissance , deep penetration strikes, strategic bombings have been
designed and manufactured as well.
On military transport side there has been huge developments on similar lines for discrete
requirement of air communication, medium transport and strategic airlift and so on. The

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75
Davies, n. 15 supra, p. 5.

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military specification has often been harmonized with the civil considerations of transport
airlines as well. However in terms and design and technology the development has been
made continuously and the military transport aircraft have a low demand for comfort and
noise abatement.

The Legacy of First World War: Over a period of time aircraft slowly and steadily aircraft
continued to improve in size, strength, speed, power, range, capacity. The aviation industry
banked upon these technological improvements and design developments in high urgency
due to the outbreak of the WWI. During this period of time a few aircrafts flew in the
European skies and majority of the resources were requisitioned in order to support the
military objectives. Aircrafts came to be acknowledged as a valuable instrument of war and a
proven man made soldier for defense. With the end of the war in 1919, where majority of the
impact was in the Europe it finally woke up from the nightmare of war and an unprecedented
supply of the military aircraft. Then with so many aircrafts in abundance there were efforts on
exploring alternative uses and feasibility of converting the combat aircraft to the tools of
commerce.

There were constant moves going on in Britain, France and Germany to convert the military
aircraft which would be suitable for civil transport as well. With the outbreak of war major
European nations had developed viable networks of airfields, an infrastructure of allied
facilities, a conductive environment for air mindedness and moreover a viable fund of trained
manpower. Despite Germany’s defeat in the WWI it was one of the first nations to introduce
a commercial service between Berlin and Weimar on 5ThFebruary 1919. Soon a company
named DLR was founded by a syndicate of AEG, Zeppelin and other companies, and then
Farman operated air services in France with Goliath aircraft which provided a cabin to protect
its passengers from the elements of nature. Then in the year 1920 KLM established its
presence on the aerial map with a service from Amsterdam to London. By 9124 Imperial
airways had also been formed in Britain with the merger of Hedley Page, Daimler and other
companies there were air carriers in Europe growing around. Without any doubt the Germans
were the ones who started the first sustained, schedule passenger services in the world, the
French were quickly able to establish a wide network easily heading in the field of volume of
infrastructure, the British were able to set a new standards of concentrated service with
regularity and punctuality as well. All this happened within a few months during the 1919,
the first year of the air transport76 . The aviation developments were happening pretty fast and
1919 was again the year when first international convention on aerial navigation emerged.
The commercial air traffic soon increased and led to the adoption of another convention on
liability for air accidents or for the unification of certain rules relating to international
carriage by air, which is known as the Warsaw convention,1929.

In the United States, however, there was an initial hesitation in the recognition of the aero
plane as a potential mode of passenger transport reason being that since the speed of aircraft
provided insufficient advantage over luxury trains like the American Pullman. That’s the
main reason majorly because of which air carrier was treated purely incidental and no
incentives were received from the government aswell.

Influence of the Second War: After almost completion of two decades since the WWI, the
development of aeronautics made rapid progress in aircraft technology, avionics and
operationofinternationalairlinesaswell.Theaircraftmanufacturinghadalsochangedfrom

76
Davies, Ibid, p. 11.
59
an open air stick and string biplane to a comfortably cabined all metal monoplanes. The
multiple engine aircraft which provided improved performance, greater safety and increased
dependability and even on the economic front, with a continued reliance of the airlines on
state subsidies was resented by the managers of exchequers so that this economic dependence
had to be minimized, if not completely eliminated. Then with outbreak of another war in the
year 1939, it resulted in the diversion of majority of resources towards the military. Majority
of the private and commercial flying remain suspended during the time of war, however there
were exceptions such as civil air services operated by the British overseas airlines corporation
over the neutral territories.

In this particular war the air forces played a major role over the years, the brood of aircraft
and supporting manpower increased exponentially. Small wonder at the end was for the civil
aviation a benign and rich legacy of wide variety of aircrafts, number of airfields, skilled
aviators and vast developed infrastructure facilities as well. With these benefits it was fully
exploited by the industry and airline route map was well established on the globe as well and
moreover there was a definite shape reflecting maturity and density of operations. The civil
aviation became a matter of national prestige and almost every nation endeavored to own a
flag carrier fleet. Operating an airline became a matter of a status symbol the aviation
industry was self-sustaining and after a while it became a profitable commercial business as
well and the air travel became a popular mode of transportation and a necessity for
communicating long distances was fast becoming a compulsion aswell.77

The air carriage also became truly international with the introduction of the international
flights and came in sharp relief as a problem concerning the lack of uniformity and
standardization in the international carriage by air and in the concomitant liability regime
with vivid focus on the inadequacies of the Warsaw convention as well. This period also
witnessed the emergence of several international organizations which were exclusive in the
field of the international civil aviation such as the IATA which was responsible for the
coordinated and nurtured interline cooperation. The International Civil Aviation
organizations which was established under the Chicago Convention of 1944 which is
responsible for the aerial traffic management, flight safety and the navigational standards
along with this there were a few regional organizations which were also formed in Europe
and the American continent in order to monitor and co-ordinate the local commercial aspects
of the aviation aswell.

The Jet Revolution: The Development initiated during the WWII reached the highest point
in the late 50s in the jet revolution where a crop of fast and sophisticated breed of airliners
like Boeings and DC versions which were relatively faster , luxurious , comfortable and
incredibly commodious as well .78Air Transport became a competitive alternative and an
attractive mode of international travel the air mindedness was growing at a speedy pace and
so was the traffic for carriage of goods by the air. To meet the ever growing demand for
airliners, manufacturers manufactured efficient aircrafts which produced efficient powers,
speed and payload with the jet breed of engine and wide body airframes as well. Hence,
aircrafts like the B747 the Jumbo Jet which is high in capacity and speed. The Concorde
aircraftwhichwasdevelopedbytheFrenchandtheTU155(SupersonicTransport)ofthe

77
Davies, Ibid, p. 398.
78
Pan-American Airways was the first airline to introduce Boeing 707 jet aircraft in 1958.
60
Soviet Union. However these aircrafts were not such as Concorde and TU 144 were not very
popular reasons being because of the noise, boom and the high amount of pollution as well. 79

The Future Aircraft: Over the years, there has been a massive change in aircrafts in terms
of cruising speed, flight safety, payloads, maneuverability, avionics and the military punch.
With the coming of the jet revolution it has been like a blessing in disguise with a greater
thrust on speed as well as altitude as a result combat as well as commercial aircraft came to
be designed and manufactured with judicious combinations of power as well as aerodynamics
by blending the refined jet engines to a suitable airframe structure whether the wide body or
narrow body sleek aero dynamic delta wings and swing wings for the supersonics as well.
The cargo liners are currently being designed to take off with over 4, 53,000 kg of AUW( all-
up-weight) and gross payload of 1, 54, 00o kg to fly nonstop over a range of 6800 KM with a
facility of inflight fueling aswell.80

However, now days there are trends to develop the aircraft of greater economic viability with
better passenger comfort. Therefore the future airliners like B777-300ER, B747-8 and
A350XWB are valuable asset for an airline which is able to achieve an optimum mix of
passenger as well as cargo and give the airlines optimal profits. Even on the technology front
as well there has been a revolution in terms of the aircraft material and transmission system.
The new types of aircrafts which are manufactured with materials consisting of carbon fiber
re- enforced plastic and graphite- epoxy composites. Even, for the pilot as well flying has
becomes easier with the technological advancement and other gadgets such as the weather
radar now a days majority of the cockpit are digital which controls the flight.

Genesis of Air Regulations: Isolated instances and incumbent exigencies have led to the
birth of Air Regulations which as composite corpus constitute Air Law. This development
has neither been systematic nor planned nor holistic but sporadic and need-based to address
the challenges faced like issue of sovereignty in airspace, law on hijacking and terrorist
threats or liability regimes to harmonies airline-passenger relationships and so on. Even
today, Air Law faces the same dilemma. This section researches the genesis of various air
regulations and their ultimate culmination into treaty law of international standing and
binding nature. This effort is illustrative and not comprehensive. It sure needs attention of
dedicatedscholars.

The First Air Law: The earliest known regulation of aerial activity dates back to 1783 AD.
That was the era of hot-air balloons and these had become particularly popular and
promiscuous in France. The fashion for hot-air balloons spread to the extent of being used as
an alternative to other modes of transportation, apart as an hobby sport. For example, Alberto
Dumont, a Brazilian business magnate, settled in Paris was accustomed to using his air
balloon to commute to his club in promiscuous display of wealth. Thus hot-air balloons
became a common sight in France and particularly in the Paris skies. These came to be used
for adventure and sport as well as for scientific experiments and military uses. The
congestion in the airspace became acute for safety of all; and crowds of watchers so
disturbing to smooth traffic and public order. As a precaution to curb reckless flying and
unsafeexperimentation,theParisPoliceissuedaDecreein1794mandatingtoprocurea

79
The US also, in the mid-sixties of the last century, commenced development of SST, but this project was abandoned in
1971 for “political, environmental and socio-economic reasons.” See Nawal K Taneja, The Commercial Airline Industry,
(Lexington, 1976), p.15.
80
ICAO Bulletin, December, 1958.
61
permit or so called license for flying of a Montgolfier balloon. 81This was, sort of a first air law
to regulate and control aerial activity in public interest and for the safetyconsiderations.

The First Passport: A document resembling in purpose and object of the passport was first
created in the U.S.A in 1793. It happened because of the fashion of balloon flying spread to
the British, American and the Russian enthusiast. Blanchard, a well-known flyer, decided to
undertake a cross country flying expedition in a hot-air balloon. For his safety, Blanchard was
issued a letter by the US government addressed to the people of the United States of America
by declaring his identity and not to harm him. It had become necessary because of the recent
balloon crash in rural- side England where the local farmers took the heaving balloon as a
devil and beat it up in all this it led the pilot to sustain injuries. This letter was signed by
George Washington, the then president of the USA and incidentally, this was to be the first
letter flown by air on 9th January, 1793.82

Regulation of Aerial Navigation: The crowded skies of Paris were scaring for accidents
and law and order. But apart from regulation through permits to mitigate the menace, no
serious effort was made at effective management of the aerial navigation. On the contrary the
problem became less severe with the introduction of the licensing curbs and was forgotten till
commercial aviation took to the skies and ventured into international destinations. Then
Sovereignty in the air became an important issue. From times immemorial the right to
airspace customarily vested in the land owner is respect to superjacent air over his fields. This
customary norm has been based on the maxim, “cujus est solum, ejus debet esse usque ad
coelum” meaning the owner of land rightfully owns his sky.83This maxim was accorded
judicial approval in the case of Bury vs. Pope (1586 AD) where this norm constitutes the
ratio of the judgment.84This view, however, changed, in public interest policy, when aircraft
started usingairspace.85

The French jurist, Paul Fauchille was the first to draw attention to this concern and suggested
to frame regulations for aerial navigation in early twentieth century. As commercial
international air carriage had started taking roots, he along with continental colleagues,
suggested of Free Air Theory where there was freedom to navigate in airspace without let or
hindrance. But in contrast, the scholars of British Empire like Coke and Blackstone stressed
on property rights and advocated national sovereignty over national airspace.86

The First World War: The argument was rationalized for the reasons of safety, security and
national defense because of the experience of the WWI which was still fresh in the minds of
the countries. During the time of the world war one civil aircraft flew while other kinds of
military aircraft were developed by the belligerent parties. Aircrafts were used in massive
numbers and in all sorts of roles, such as aerial combat, reconnaissance, bombing, ground
attacks and even the naval warfare. After the WWI from 1914-19 the aerial technology had
gone major changes as well as improvements as well. The thinking has also developed about
the awareness of the connection between national security and nationalsovereignty of the

81
CN Shawcross, KM Beaumont and PRE Brown, Shawcross and Beaumont on Air Law (London, 2ndEdition, 1951), vol. I,

p. 3.
82
Lynn Poole, Ballooning in the Space Age, (New York, 1958), p.440. Incidentally, in the US, the first ascent in a balloon was
made in 1784 by Edward Warren, a 13-year old boy, at Baltimore, Maryland. Refer CN Shawcross at n. 27 supra, p. 15. 83 A
Mc Nair, The Law of the Air, (London, Stevens & Sons, 1964), p.395.
84
Ibid. p. 396

62
85
For a detailed analysia on the historical aspect refer GS Sachdeva, “Sovereignty in the Air” in IJIL, Vol 22, No 3&4, July-
December, 1982.
86
DHN Johnson, Rights in Air Space, (Manchester, Manchester University Press, 1965), p. 14.

63
airspace. Europe was one of the first continent where scheduled air services began the first air
services began between Paris and London in February 1919 and then between Paris and
Brussels in March the same Year. This need for the already existing agreements to be
gathered into a convention led to a second Paris Convention in1919.

The Paris Convention of 1919: After the end of the WWI in the year 1919 post war peace
conference took place in Paris where all major parties of the world community had
assembled. The Paris convention was one of the first legal instruments to enter into force in
the field of the air law, but although it took time to be implemented in the efficient manner.
The convention was ratified by 32 states, the outcome of the convention showed stronger
support for complete and exclusive sovereignty of the air space. This convention despite
being successful was never implemented by the United States and the majority of the South
American Republics. These nations adopted their own convention nine years later; in Havana
the convention’s first article confirmed what had become customary law and thereby was also
applicable to states not parties of the 1919 Convention The Paris Convention of 1919
discussed about the issue of freedom of innocent passage but there was nothing about the
freedom of civil aviation that it does not include the right to land in a foreign country.
Overall, the convention established a system with rules overseeing the use and flight if
aircraft over the territories of and between the member states. There was permanent
committee established as well to administer of the convention. Then there were annexes
which were added regarding other things which include the standard of airworthiness and the
certificates of competency for the crewmembers. Further, the convention also established the
International Commission of Air Navigation, ICAN was given a wide range of supervisory
powers in the technological area as well. The convention also included the first accepted
definition of the aircraft the definition was overtaken by the 1944 Chicago Convention and
has not changed until the 1967 when the ICAO produced the new definition. Civil aviation
was practically nonexistent at the time of the Paris Convention and the only major branches
of flying were either military orpostal.

Passenger Liability in Air Accidents: Count Von Zeppelin, a German crusader and a
visionary for air travel, was one of the first to form an airline called DELAG in 1909. The
airline operated scheduled services between Friedrichshafen and Dusseldorf by self-propelled
dirigibles, albeit lighter than the air. However these huge German airships were too difficult
to control in strong winds and there was a bigger danger which arose from the inflammability
of the Hydrogen gas.87 Over the years a lot of accidents happened due to airships but the
worst one happened in Hindenburg as Lakehurst, New Jersey in which around 36 lives were
lost with the liability claims it les DELAG bankrupt. Following the footsteps of Germany,
airlines grew around Europe and Americas. Most of the airlines had its own ticketing format
and contractual conditions. Liability was unlimited but passengers had to face a lot of
harassment for the claims and carries most of the time were successful in evading the
compensation. Protection of passengers was a necessity and with those efforts it resulted in
IATA common code of 1919 and Paris convention of 1925. The IATA code was an eye wash
as it still carried pro-carrier bias which had a significant risk factor and the peculiarities of
carriage by air vis a vis other modes of transport aswell.
Another blow to the passengers came from the traditional view of the British courts which
had accepted the plea of common carriers to contract out liability obligations almost to the
limit ofunconscionable and arbitrary. The case in question is Nicolson vs. William.88

87
Zeppelin’s LZ-13, HANSA, was a passenger carrying airship.
88
102 ER 1164 (KB 1804)
64
However on the contrary the American courts were more inclined towards the public interest
and have been favorable to a public policy which limits the quantum of damages to a
reasonable ceiling.89 This seemed like a necessity for the computation of risk and even for the
insurance policy. This aspect was later viewed in the Warsaw convention as well. Then came
the Warsaw Convention, 1929. This almost equalized the interest of both parties and stood on
equity. This Convention unified rules of procedure and standardized contract documents. It
put a ceiling on global liability per passenger to provide air carriers certainty on quantum of
compensation payable and thus seek underwriting of their risk. Lastly, it simplified
evidentiary procedure under the principle of res ipsa loquitur.90 The Warsaw Convention has
been amended and updated resulting in an improved version called Montreal Convention.
1999.

In Between Wars: In the following years more conferences were held regarding the
development of civil aviation. The 1926 Madrid conference had close resemblance to that of
the Paris convention. The 1928 Havana conference was a small step forward, it was neither
very technical in nature like the Paris convention of 1919 nor there were many measures
taken in terms of uniformity in air traffic regulations or something in terms of ICAN. The
Havana convention was more Pan American on Civil Aviation; the convention’s article 4
spoke of the freedom of innocent overflight but did not contain any sort of regulation in the
freedom of the regular airlines. The Havana convention was equivalent to the Paris
convention for the United States and the South American states. With the political situation
stabilizing in Europe the nations were keen on tapping the potential of aviation. The aircraft
development entered a new stage the flying machines became bigger, faster and efficient
when enteredupon.

For example, the annual international competition between countries for the Schneider
Trophy had since 1913 occupied the minds of many of the European and American aircraft
constructors. It continued after World War One and the British winner of the competition in
1931, which brought the trophy permanently to Great Britain, after winning three consecutive
races, was built by Super marine and was the forerunner of the famous Spitfire fighter of
World War Two. The first functional jet engine was developed in 1933 but was not yet ready
to supersede the propellerengine.

However there were only a few passengers’ planes which were developed during the period
of peace as new series of conflicts broke out in Asia and Europe, then there was a bigger need
for the strategic bombers and transporters became a necessary commodity for the allied
power and their counterparts as well. These were later to stand as a model for pure passenger
aircrafts or they were simply rebuilt after the war to serve in general. After 1939 crossing the
oceans became a reality reason being the WWII where major efforts were put to find a
common legal basis for international civil aviation indefinitely. The world stage was set for a
new convention that would replace all the parallel conventionsabove.

Liability for Third-Party Damage on the Surface: Aerial activity is hazardous by the in
general nature of flying and there is a constant dependency on the skills of the pilot and are
also subjected to the external conditions such as the meteorological conditions and the
technical failures. Therefore chances of accidents are minimal as there is utmost caution

89
Georgette Miller, Liability in International Air Transport, (New York, 1977), p. 177. Cited from JC Batra, International Air
Law, (New Delhi, Reliance Publishing House, 2003),pp.31-2.

65
90
For a detailed analysis on the subject, refer GS Sachdeva, International Tranportation:law of Carriage by Air, (New
Delhi, Deep & Deep Publications,1987).

66
exercised in order to maintain the aircrafts as well keeping the weather into consideration.
For Example. If an aircraft is flying from Kochi to Agatti Island in Lakshadweep the pilots
will be in constant touch with the metrological department of Agatti Island and if the weather
worsens in route the pilots will immediately turn back the aircraft to Kochi. This dictum gets
support from one of the earliest recorded accident that occurred in 1822. It was a case of bad
landing by an air balloon that crashed onto the standing crop causing much loss and distress
to the owner of the field. The case went to the Court for judgment on liability and
compensation of loss suffered by the farmer. The Judge “imposed absolute and unlimited
liability on the unfortunate aviator.”91 The judgment disregarded mitigating circumstances
pleaded by the flyer and strict third-party liability was upheld and damages awarded as per
principle of “restitutio in integrum.”92 In a way, this was the harbinger of liability regime of
aviation and direct ancestor of the Rome Convention,1952.93

Laws of Offences against Aviation: In the beginning aircraft was viewed as a sight with
owe and admiration. The Air Travel initially was very expensive and only the ultra-rich could
afford to travel. The Air Travelers were viewed with an owe, etiquette and for a snob value.
Therefore there was no chance of Crime on board the aircraft. But human nature
unfortunately was always contradictory in nature; the passengers specially the first timers
were constantly needed to be reminded of their duty to keep their seat belts fastened at all
times especially when the captain switches on the seat belt sign. Therefore in order to meet
this necessity, apart from help and hospitality, air hostess were recruited as a cadre of cabin
crew that has grown with a purpose and responsibilities. The first air hostess to be appointed
was Ellen Churchill in the year 1930. In the early years only the ultra-rich could afford to fly
and their behavior was mostly in decent towards the air hostess. However when fliers were
pampered with drinks in flight there was an in general change in the attitudes of the, air
passengers grew a bit rowdy and started expecting quid pro quo for the money which they
had paid. Indiscipline became a common sight as a result of it once the aircraft pushed back
from the gate the captain of the flight was given the powers to taken major decisions and to
ensure order in flight and the overall safety of the crew as well as aircraft. In a recent
incident, a maniac passenger tried to bite an air hostess but was overpowered by fellow
passengers.94

The commander of the aircraft is given the legal powers to overpower the rowdy and unruly
air passenger, which poses the risk to safety of flight and even to the other fellow passengers
as well. These powers as well as the legal immunity are mentioned in article 10 of the
Chicago convention of the year 1944 and were reiterated in the Tokyo convention, of 1963.
But the worst was even the hijacking of the aircrafts, damages at airports, parked aircrafts and
the cybercrimes. Today aviation safety is threatened in many ways in the air as well on the
ground mostly because of the presence of the terrorist groups in and around the world. Thus,
it is this innocuous clause on powers of the commander which has grown into a large corpus
of law of offences against aviation security comprising The Hague Convention, 1970, the
Montreal Convention, 1971, the Montreal Protocol, 1988 and the Convention on Marking of
Explosive Material and the Beijing Convention,2014.

91
Aleksander Tobolewski, Monetary Limitations of Liability in Air Law, (Montreal, 1986), p. 72.
92
A Kocourek, Sources of Ancient and Primitive Laws, Part III, (Boston, 1915), p.123. Cited from JC Batra, International Air
Law, (New Delhi, Reliance Publishing House, 2003), p.29.
93
Convention on Damage caused by Foreign Aircraft to Third-Parties on the Surface. Signed at Rome on 7 October, 1952.
67
94
The Times of India, (Chandigarh Edition), November 4, 2011

68
Regulation of Military Uses of Aircraft: Aerial vehicles right from the time of kites and
balloons have been used for offensive as well as defensive purposes as well. The strategic
deployment of the balloon did not taste any success and caused more collateral damage than
the targeted objects, Reason being that the bombs were dropped manually without the aid of
the optical telescopic devices and these objects fell because of the speed which is determined
by the gravity. This was quite often disturbed by weather conditions like wind speed, clouds
and rain etc. The damage to the civil property and death and injuries of the civilians was
totally unacceptable and there was an in general public outrage at such gross misuse of
weapons that was inaccurate. These developments led to the Hague conference in July, 1899
which deliberated an international declaration which prohibits the discharge of projectiles and
explosive from the air balloons. Subsequently many more prohibitions, like ban on napalm
bombs, from aircraft have been promulgated leading to a considerable corpus on the laws of
Air Warfare yet the Hague Declaration remains the seed for regulation of military uses of
aircraft.

The Chicago Convention on International Civil Aviation: On 1st November 1944, when
the allied powers started slowly and steadily toward victory in Europe and Asia, the president
of the U.S.A invited all the allied powers together with neutral governments for a conference
in Chicago regarding civil aviation. The aim was to come together for the future and make
the best use of the air and space in as efficient manner as possible. The U.S.A president
Franklin .D. Roosevelt described the need of global air communication as a necessity and the
potential of air and space needs to be tapped as early as possible and there were
announcements also made regarding the availability of large number of transport planes as
soon as the enemy in Europe and Japan had been defeated. Because of the conflict
availability of trained pilots and airports was not a problem. President Roosevelt further
urged the participating states to start creating manual trust among them and avoid dominance
over each other. A month later, on 7th December, 53 States signed the convention along with
other agreements supplementingit.

The convention needed around 26 ratifications to enter into force on the 4thApril 1947 the
convention became operational. The convention and its two annexing agreements meant that
the contracting states recognized each other’s right to fly through national air space and to
use certain areas of their sovereign territories as landing sites as well. With the forecasting of
the transatlantic commercial air traffic the United States and the Great Britain struck an
agreement in 1935 in terms of aerial navigation on international flights everywhere in the
British Empire, except the commonwealth territories, and the American territories. Then
similar agreements were made between the U.S.A and Canada as well as South Africa. On
the same day the convention also became functional and its administrative organizations also
came intobeing.

Understanding Aviation Law: Aviation law is that branch of law which concerns flight,
airtravel and associated legal as well as business concerns. Some of its areas overlap the
marine law and in many cases, aviation law is considered a matter of international law due to
the nature of air travel. The business aspect of air operators mostly includes the airlines and
there regulations fall under the aviation law. Aviation lawhas the power to govern all the
individuals which are connected to the operations of aircrafts as well as the maintenance of
aviation facilities. International air law mostly covers the rules which apply to both the
domestic as well as international aviation. There is a complex relationship between the states,
service providers as well as the passenger’s. The rules also govern the impact of aviation on
the environment and even on individuals which are affected by the aircraft operations.

69
Aviation is a highly specialized field of law which encompasses most facts of air travel, as
well as the operational and business regulations issues related to air travel, which requires
comprehensive knowledge of the FAA regulations, specific law in regard with flight and an
in depth understanding of the aviation as well. Aviation law is related to all individuals
connected to the operation aspect as well as the maintenance aspect of the aircrafts as well.
The practice of Aviation law could include litigation on behalf of the families who suffered
loss or injury due to an aircraft tragedy and the defense of an aviation professional accused of
violating Federal Aviation Regulations aswell.

Majority aspects of aviation law fall under the sight of the FAA however the, air traffic
regulation policies, law and administrative agencies have been created by both the federal and
state governments, where certain restrictions prevent the states from regulating routes,
services, or the rates of all air carriers which are authorized to provide interstate
airtransportation by the FAA act. States may alter existing remedies and enact state laws
consistent with federal mandate, though. Additionally, Federal law does not preempt state
products liability law, and more often than not, in most defective product cases, aviation
manufacturers may be held strictly liable.

Sources of Aviation Law: Air law has an international character which has emerged on an
international plane almost from the beginning, that is, the first flights between Paris and
London the with the conclusion of the Paris convention the first flights took place. Due to the
developments in aviation and the lawmakers kept pace with the customs it has been largely
bypassed as a source of law, but the air law is mainly a written law. Treaty law includes all
international treaties under which multiple conventions are the primary source of air law. As
a matter of fact the subject participants like the states, the airport owners, the airports
operators, the passengers, the owners of the on-board goods and so on their rights are the
ones which are properly guarded with the achievements of the major elements of the air law.
With the implementations measures which are found in international agreements and the
conventions another major classifications which is relevant for the air law are the bilateral
instruments such as the national laws, the contracts between states and the airline companies
or the contracts between airline companies as well as the general principle of international
laws. Then international customs are other major constituents of international law which are
applicable in the absence of agreement which are complementing it. With the view of the
development of the treaty laws, the application of international customs is not much in the
domain of aviation as the time goes by. The litigation between national and the international
law, and moreover between private and public law is applicable in air law as well. Private
international law, comprises of the series of rules which govern the relations between private
persons who are involved in the operations as well as use of the aircraft, whereas the public
international law is the legal norms which pertains to the relations involving the states as well
as international organizations with respect to those activity in aviation with problems of
political, technical, economic, financial, social and of legalnature

Scope and Limitation of Aviation Law: State sovereignty is one of the fundamental
principles of international law. The concepts of international law are based on the state. The
state in its turn lies upon the foundation of the sovereignty, which expresses the supremacy of
the governmental institutions and externally the supremacy of the state as a legal person. But
sovereignty itself, with its retinue of legal rights and duties, is founded upon the fact of
territory. Without territory a legal person cannot be a state. It is undoubtedly the basic
characteristic of a state and the one most widely accepted and understood. There are currently
some 200 distinct territorial units, each one subject to a different territorial sovereignty and

70
jurisdiction. However, the term is very often used in a political sense, with differing
interpretations depending on context and intention. The notion of sovereignty is dynamic,
evolving with the development of the global institutional environment. In aviation,
sovereignty refers to the ownership of airspace. In other words, to the exclusive competence
of a State to exercise its legislative, administrative and judicial powers within its national
airspace.95

The central role of territory in the scheme of international law may be seen by noting the
development of legal rules protecting its inviolability. The principle of respect for the
territorial integrity of states is well founded as one of the linchpins of the international
system, as is the norm prohibiting interference in the internal affairs of other states. A number
of factors, however, have tended to reduce the territorial exclusivity of the state in
international law. Technological and economic changes have had an impact as
interdependence becomes more evident and the rise of such transnational concerns as human
rights and self-determination have tended to impinge upon this exclusivity. The growth of
international organisations is another relevant factor, as is the development of the „common
heritage‟ concept in the context of the law of the sea and airlaw.

The essence of territorial sovereignty is contained in the notion of title. This term relates to
both the factual and legal conditions under which territory is deemed to belong to one
particular 2 authority or another. In other words, it refers to the existence of those facts
required under international law to entail the legal consequences of a change in the juridical
status of a particular territory.96Air Law is a series of rules which govern the use of airspace
and its benefits for the aviation, the general public and the nations of the world. Definition of
which is plenty but it cannot be applied indiscriminately or without exceptions. Like, the
terms of Aviation Law and, or Navigation Law are become outdated, the designation of Air
Transportation Law has been employed on occasions, but the areas it covers are only
conveying a narrow interpretation. In presence, the term of Aeronautical Law is currently
being used especially in Romance languages, while Air Law is practically adopted in the rest
regimes.

Theories of Airspace Sovereignty: Efforts to ascertain the breadth of the layer of air
comprised within the air territory so as to establish a consensus and acceptable principle of
sovereignty over the air space had generated a lot of controversy amongst jurists. This
controversy had given rise to theories propounded on a stage by stage basis which
subsequently led to the birth of the principle of sovereignty over the air space.

The theories of sovereignty over the air space propounded by the jurists were initially
grouped in to two main schools of thought. These are the theory which maintained that the air
space is by its nature free and that which maintained the theory of sovereignty of the
subjacent state in the air space above its territory. Notwithstanding the various theories and in
spite of the existing uncertainty as to where the air space, that is, the atmosphere of our planet
ends and the outer space begins, the basic and fundamental principle of air law is that every
state has complete and exclusive sovereignty over the air space above its territory. By this
principle, no air craft of one state can enter the air space of another state without the
permission of that other state sought and obtained. The theories on the legal status of the
airspace may be summarized asfollows:
95
International Civil Aviation Organization “Worldwide Air Transport Conference (ATCONF) Sixth Meeting” Montréal, 18 To
22 March 2013.

71
96
Malcom Shaw, 2008, International Law 6th Edition .Pg 490.

72
a) Theory Of The Unlimited Freedom: this theory is supported by those who, having
seen the advantages that the absolute freedom of the seas have brought to the
International community, thought that the same criteria could be applied to the air
navigation.
b) Theory Of The Absolute Sovereignty: completely opposed to the previous one: it
refused the principle of freedom and conversely claimed the State sovereignty over
the atmosphere. It also inherited the idea that the Roman Law had applied to the land
property in order to define its unconditional character and to reject any claim from the
other States (the already mentioned principle dominus soli est dominus usque ad
sidera et usque adinferos).
c) Intermediate Theories: it tried to combine the States‟ claims with the creation of an
efficient International air navigation system. One of the most famous theories was
formulated in 1901 by the French jurist Paul Fauchille, who claimed that the air is
free, and its freedom may only be limited by strictly defined rights belonging to the
State underneath. According to this scholar the sovereignty of the land owner over the
air space was limited to the maximum height of the buildings it could build; beyond
this limit the atmosphere was free and freelyexploitable.
d) Theory Of The Limited Sovereignty: it stemmed from the principle that the
atmosphere is subject to the State power, but it introduced some limitations in favour
of the air traffic of adequate means whose airworthiness could be proved by specific
international certifications. This theory anticipated the following regime which was
based upon a functional and not just spatial idea of the airnavigation.

The Principle of Sovereignty over the Airspace: State sovereignty over its territorial
airspace is the basic principle underlying the whole system of International AirLaw.
Irrespective of whether the airspace can be regarded as a part of a state’s territory, it generally
recognized that it is a sovereign right over the airspace above its land and territorial waters.
After the collapse of the short lived concept of freedom of the air in the first decade of 19th
century, air law theory is based on the concept of air sovereignty as airspace is regarded as an
extension of state’s land and maritime territorial or its complementary element. States have
exercised sovereignty over the space above land at least as far back as the Roman Empire.
Roman law (and the law of succeeding States) recognized, regulated, and protected private
rights in space above the surface. Because a State cannot impose its will within the territory
of another State, these States therefore all claimed territorial sovereignty above their surface
territory. Although writers generally agree that Roman law recognized private rights in air
space, the writers do not agree on the extent of the right recognized.

At the beginning of the twentieth century “international flight was practically unregulated.”
In 1902, Paul Fauchille of France, Rapporteur for the Institute of International Law on the
subject of the legal status of the airships, proposed that States should only have exclusive
rights in the airspace immediately over their territory up to an altitude of 1,500 meters (4,920
feet). Some of Fauchille‟s proposals were translated by Professor John C. Cooper as:

“The air is free—States having only rights necessary for their self-preservation, such rights
relating to the prevention of spying, to the customs, to the sanitary police, and to the
necessities of defence; subject to certain exceptions, air navigation is prohibited in a
“security” zone extending 1500 meters up from the surface territory of a State; only public
aircraft of a State are permitted to fly freely in the security zone of that State; the subjacent

73
State may also regulate landing and departure through the security zone above its
territory.”97

The opposite view was expressed in 1906 by Professor John Westlake of the United Kingdom
who advocated no upward limit of State sovereignty. In the air the higher one ascends, the
more damage the fall of objects will cause on the earth. If there exists a limit as to the
sovereignty of the State over the oceanic space, none exists for the sovereignty of the State
over the air space. The right of the subjacent State remains the same whatever may be the
distance. 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 to reach an agreement to resolve the problem. As a result the
Paris Conference of 1910 was convened. The tendency of the conference did not adopt the
idea of „freedom of the air‟ but was in favour of the sovereignty of states in the space above
their territories, which was reflected on the draft convention at the plenary session of the
conference.

Although the diplomatic conference adjourned without signing a convention, it had

completed most of the clauses of a draft convention. The 1910 conference “first evidenced
general international agreement that usable space above the lands and waters of a State is part
of the territory of that State” and that no general right of innocent passage through the usable
space above a State existed for aircraft. The conference did not set a vertical limit on State
sovereignty. After the 1910 Paris conference ended without agreement, many European
States asserted absolute vertical sovereignty. After WWI, the Aeronautical Commission of
the Peace Conference in Paris met to examine fundamental principles for air navigation. The
Commission consisted of delegates from many European States as well as Japan, Cuba,
Brazil and the U.S. The Commission drafted the Convention Relating to the Regulation of
Aerial Navigation, known as the Paris Convention. Article 1 of the Convention recognized
the exclusive sovereignty of all States over the air space above their territory, including above
territorial waters. The Paris Convention did not define the term “air space.” After the Paris
Convention entered into force, an annex was adopted which defined aircraft as “all machines
which can derive support in the atmosphere from reactions of theair.”

However, according to Professor Cooper, this did not limit a State’s vertical sovereignty, “the
Paris Convention is not to be construed as meaning that in international law States have
territorial rights only in this airspace. The airspace was accepted as part of State territory but
no international determination was made as to the regions of space above.” The Paris
Convention did not provide for a right of innocent passage, but it did encourage States to
allow innocent passage, saying “each contracting State undertakes in time of peace to
accord freedom of innocent passage above its territory to the aircraft of the other
contracting States.” (Article 2) However, apparently the idea of innocent passage was not
looked upon favourably; Article 15 which provided in part that “every aircraft of a
contracting State has the right to cross the air space of another State without landing” was
amended in 1929 to make this right conditional. The new paragraph 4 of article 15said,
“Every contracting State may make conditional on its prior authorisation the establishment
of international airways and the creation and operation of regular international air
navigation lines, with or without landing on itsterritory.”

74
97
ohn Cobb Cooper, A Study on the Legal Status of Aircraft [hereinafter Cooper, A Study], reprinted In Cooper,
Explorations In Aerospace Law, supra note 18, at 205,218.

75
The right of innocent passage provided for by Article 2 [was] thus largely limited to civil
aircraft used for pleasure or occasional commercial flights. The Paris Convention was ratified
by most European States and its statement of airspace sovereignty became an accepted part of
international law.

The 1944 Convention on International Civil Aviation (known as the Chicago Convention) also
reaffirms in its Article 1 that all States have complete and exclusive sovereignty over the
airspace above their territory. A State’s territorial airspace includes the area above its
territorial waters, there exists no right of innocent passage and scheduled international air
services are only allowed with special permission of the contracting States. Accordingly, the
international law rules protecting sovereignty of states apply to the airspace as they do to
the land below. As the International Court noted in the Nicaragua case, ‘The principle of
respect for territorial sovereignty is also directly infringed by the unauthorised overflight of a
state’s territory by aircraft belonging to or under the control of the government of another
state.’ The Court noted in the Benin/Niger case that ‘a boundary represents the line of
separation between areas of state sovereignty, not only on the earth’s surface but also in the
subsoil and in the superjacent column ofair’.

Problems of National Jurisdictions Regarding Airspace Sovereignty: There is no general

system of international laws in relation with the definition as well as scope of national laws
and its jurisdiction. The basic rules of the international law recognizes the complete as well as
the exclusive sovereignty of the states over the state’s territorial airspace which involves the
prohibition of the unauthorized flights and to conform the territorial laws as well as the
regulation of the foreign aircrafts as well. For example the No Fly Zone area 51 in the U.S.A
where flying activities are not permitted and only the aircrafts with special permission can fly
over the zone. International law does not provide any immediate measure to protect the
airspace and in order ceases the violation as well. Freedom of air is the basic rule and no state
can have absolute sovereignty over it.

A state sovereignty in territorial airspace and its legal consequences cover:

1. freedom of air navigation in non-territorialairspace;

2. nationality of aircraft involving control,responsibility;
3. right of protection assigned to the registered state98 of theflag;
4. use of lawful means to suppress unlawful use ofaircraft;
5. recognition either of exclusive jurisdiction of the territorial state or of state ofthe
aircraft’s nationality; and
6. Concurrent jurisdictions in other areas of civil aviationactivities.

The fundamental rules of the customary international law underlines the regulatory system of
the international civil aviation, the major part of it is formed by the treaty law. Although
customary rules had been provided a basic premise for the application of treaty obligation,
state practice also seems to be indicative of the direction in which the development of
international air lawis likely to go. The main fundamental rules of the customary

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98
Art 1(2) of Tokyo Convention stating that „this convention shall apply in respect of offences committed or acts done by a
person on board any aircraft registered in a contracting state, while that aircraft is in flight or on the surface of the high seas
or of any other area outside the territory of anystate.

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international law is to underline the regulatory system of the international civil aviation, the
major part of it is formed by the treaty law. Although the customary rules have been provided
a basic premise for the application of the treaty obligation, state practice also seems to be the
indicative for the direction in which the development of the international air law is likely to
go.

The Bilateral air agreement, while using the notion of the airline nationality is associated with
the ownership as well as the effective control, with the recognition of transfer of
responsibility from the rule of the state of aircraft operator, refraining from the interference
by the territorial state with the order prevailing on board the foreign aircraft. As a result of the
evolving technological revolution and even with the expansion of international as well as
extra-terrestrial activities, there will also be a potential conflict of the states jurisdiction’s in
the matter of certaincases.

Penal Law and Aviation: In the recent past few years, with the development of the new
rules as well as sanctions were tensed due to the increase happenings of the criminal offence
more frequently. There were 3 international conventions of the penal law ofaviation.

1. The Convention of offences and certain other acts committed on Board Aircraft,
signed at Tokyo on 14th September 1963( The TokyoConvention)
2. The Convention for the suppression of Unlawful Seizure of Aircraft, signed at the
Hague on 16th December 1970 ( The Hague Convention)
3. The Convention for the suppression of the unlawful acts against the safety of civil
aviation , signed at Montreal on 23rd September 1971( The MontrealConvention)

It is very important to determine, the basic concept of the international character of the
aviation and the air law, which state has the competency to exercise the jurisdiction in the
cases of the criminal offence which happened on board the aircraft. In 1910 the Paris
convention expressed the principle of law that the state sovereignty over the airspace above
the territory which was also indicated in the 1944’s Chicago convention as well. However,
the situation may arise sometimes in which there are a lot of complications where a state
other than the state in which the aircrafts is registered attempts to exercise its jurisdiction
with regard to the offence committed on board such aircrafts, due to offence which is
committed above the territories which are not subject to the sovereignty of any particular
state like high seas, or place which cannot be distinguished properly. We may find number of
occasions discussed and recorded on the agenda of the International Law Association, the
draft convention was worked out by the ICAO legal committee in Munich 1959 and
Rome1962 and other cities. The final text of Tokyo Convention was concluded at the
Diplomatic conference held in Tokyo in1963.

According to the various draft conventions and materials as above mentioned, an analysis of
the following theories regarding jurisdiction to which is resorted:

1. The Territorial Theory – The law of the state in whose airspace the offence has taken
place will be applies by its national courts. Many at times it is not always possible to
determine the exact position of the aircraft at the time where the offence was
committed, for that reason it is impractical for the state to base its jurisdiction solely
on thisprinciple.

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 2. The National Theory – According to this theory of the state where the aircraft is
registered is alwaysapplied.
3. The Mixed Theory – side by side with the law of the aircraft’s nationality and the
lawof the state over which the aircraft passes is enforceable whenever the security or
public order of such state is threatened by offences committed onboard.
4. The theory of the law of the state ofdeparture.
5. The theory of the law of the state oflanding.

Main Organizations in Aviation: ICAO – The International Civil Aviation Organization:

ICAO is one of the world’s first major organization or the matters of civil aviation. The
ICAO came into existence after the 1944’s Chicago convention. The main aim to set up is for
the generation in the field of aviation in form of structural innovations in terms of
international co-operation and with the making of law post WWII. The daily business is run
by the council, a permanent body which performs a variety of duties in the legal, technical as
well as the economic field as well. There are over 150 members who are a part of ICAO and
its operations are under the assembly with important budgetary powers. The ICAO also has a
presence of the legal committee, which is responsible for preparing and drafting of the
international treaties and the conventions in relation to the air law. One of the major roles of
the council is for the settlement of the disputes and request for the legal opinions from the
international court of justice, the ICJ presence at the Hague offers interpretation of the
treaties and conventions , and also acts as a mediator if there arises anydispute.

The International Air Transportation Association (IATA): IATA is not the official body
but its aim and its objectives are clearly set out in its incorporation acts for the safe, regular
and economical air transport for the benefit of the air aviation, to foster the air commerce and
also to study the problems connected by means of collaboration among the airlines engaged
directly or indirectly in the international air transport services. Its job is to always work with
the ICAO and the other main international organizations, which lies on the technical as well
as the commercial sector as well. IATA has another important function which is to perform a
clearing house, handle the ticket prices for airlines under the responsibility of the financial
committee since 1947 in London, later it shifted to Geneva. The other main function of the
IATA is to also fix the tariff rates for the international air transport, its activates find their
expression in resolutions and recommended practices which are adopted by the traffic
conferences which become the binding members when given approval by the interested
governments.

The Civil Air Navigation Services Organization (CANSO): The Civil Air Navigation
Services Organizations (CANSO) is the main representative body of companies which
provide air traffic control. It represents the interest of the Air Navigation Service Providers.
The CANSO members are the ones who are responsible for supporting over 85% of the world
air traffic, and through its workgroups, the members of it share information and develop new
policies with the aim of improving the air navigation services from the ground as well as in
the air. CANSO also represents its members view in terms of regularity and the industry
forums, which include the ICAO, where it has the official observer status as well. Full
membership is open to all the ANSPs despite their regard even of their legal status. This
includes ANSPs who are integrated within government structures and departments. Members
who are not separated from their governments are able to sign an article of membership
whichexplicitlyrecognizesthatCANSOdoesnotrepresentthenationalgovernmentofthe

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ANSP's home state in any way. The membership of CANSO is drawn from the companies as
well as organizations from the aviation industry who are involved with the delivery of the air
traffic services. Membership offers the chance to network both formally as well as informally
with the clients as well as the decision makers as well. Associate Members may contribute to
CANSO's work programs and help it improve the delivery of Air Navigation Services.
CANSO is member of the Air Transport Action Group (ATAG).
An air navigation service provider (ANSP): It is a public or a private legal entity which
provides air navigation services.[1]It manages the air traffic on behalf of the company, region
or country. Depending on the specific mandate an ANSP provides following services to the
airspace users.
1. Air Traffic Management(ATM)
2. Communications, navigation and surveillance systems(CNS)
3. Meteorological service for air navigation(MET)
4. Search and rescue(SAR)
5. Aeronautical information services/aeronautical information management(AIS/AIM).
These services are provided to air traffic during all the phases of operations during approach,
at airport and in-route. The Air navigation services providers are government departments,
state-owned companies and private organizations. The world’s largest air navigation service
providers are members of the CANSO which is located at Amsterdam Schiphol Airport.
Airports Council International (ACI): The only global representative of the world’s airport
authorities. It was established in the Year 1991. The ACI watches the interest of the
government’s as well as the international organizations, develops standards, policies and
recommends practices for the airports; it also provides information and training opportunities
to increase the standards around the world. The main of the ACI is to provide a safe, secure,
efficient and an environment friendly air transport system. The ACI is governed by the
governing body; The ACI is located in Montreal, Quebec Canada. The ACI works on a daily
basis with the ICAO and is a member of the Air Transport Action Group.
Conclusion:
Extensive researches are being undertaken to establish the existence of flying and aerial
vehicles in ancient times, yet aviation as visible today appears to be a recent phenomenon and
a remarkable feat of modern science and technology. Aviation has travelled a long way in a
short span of almost a century. From the primitive lumbering flying machine of the Wright
brothers to the supersonic jetfighters, with armament loads disastrously lethal, of the
developed air forces. Further, aerospace reusable vehicles, which cruise at many times the
speed of sound at altitudes incredibly high or near-earth orbits, with avionics highly
sophisticated are at technical demonstration stage.
On the air transport front also advances have indeed been spectacular. From a humble
beginning of inconvenient gondolas attached to balloons, diminutive machines of remote
ancestry, and doubtful reliability, the international civil aviation has grown dynamically into
a gigantic international transport industry participated by nearly 300 companies belonging to
over 100 nations, which to-day possess and operate a great armada of aircraft flying over
1000 billion passenger kilometers and about 40 billion ton-kilometers of freight annually
across the territories of about 180 sovereign states. Indeed the world has shrunk, the horizons
have drawn closer and international air travel is here to stay as a necessity, as a habit and as a
time-saver.

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The science of aeronautics is still rapidly advancing and harmoniously maturing into
astronautics. The future aero-space vehicles may be relatively different from those
conventionally known so far, yet air travel and air combat seem inseparable from our
present civilization. Thus the story of flight may be complete, yet the tale of aviation
and aero-space flight continues, because the saga of development and advancement is
unending and continues to march ahead. The snippets on Air Regulations are just
illustrative of the genesis of air regulations that have culminated into improved versions
and binding laws through obligatory conventions and protocols. This aspect deserves a
lot more interest and needs serious furtherresearch.