Part I – General
1. The Sources of Int’l Air Law
Q? What is int’l law?
Int’l law is a man made instrument – it is States political will, what they want it to be, often in the form of Treaties (bilateral & multilateral). The States themselves make the law that evolves vis-à-vis the practice of States.
It is the fundamental axiom in the UN Charter of the sovereigns rights (absolute power not subject to any o/; a sovereign, however, must have (1) territory, (2) pop. & (3) a central governing power that is recognized in the int’l community for legal & business relations – some claim “recognition” can merely be declared, o/s claim it takes more than mere rhetoric).
There is specificity to subject & to sources of law. As sovereign states are equal – hence int’l law is a creation of the states themselves vis-à-vis int’l custom (which is in practice among states & been on going for a long time); treaties in which States give their sovereign will to follow (i.e. bilateral, multi-lateral (open to all states) under the general principle pacta sunt seruanda – which is one of the back bone of public int’l law in general –“meeting of the minds of the states”). Remember law is a man made instrument to organize social relations – where conflict of interests are present (i.e. drive on the right or left – who has priority at an intersection. Law is to harmonize social relations & keep them in balance. I.e. there could not be talk of aviation law before aviation started.
Law cannot develop faster than human relations. Technology by itself creates the law. It is the human or social relations that the technology creates which require the law. Law cannot develop faster than the development of the social relations that it is supposed to govern. An individual is an “addressee” of int’l law not a subject thereof.
Q? How does customary law relate to int’l law?
The fundamental source of int’l law is customary law, which eventually becomes codified (see art. 38 of the I.C.J. (Int’l Crt of Justice)):
(1) Opinio luris ac necessitatis
(2) Usus Longaevus – “X” must be estab. over a “long use”: how much time is debatable.
Q? What is meant by the words “air space”?
Air space is the envelope of air around the globe (highest ever reached was 80km above the earths surface). In the last century, it was romantic to think of airspace as the common heritage of mankind – It belongs to everyone. As we are all free to breathe the air, we can all freely use it for aerial exploitation & navigation.
Q? What is the developmental history of public int’l air law?
The development of aviation is a consequence of the development of social relations.
1) 1871-Franco-Prussian War:
The Prussians have Paris under siege. Both sides are using hot air balloons (defined as an aircraft). Under Bismarck’s signature there comes a warning to France that any balloon that would fly over territory occupied by Prussians would be dealt w/ as an intruder & will be shot down & its occupants will treated as enemy forces behind its lines. This is the first harbinger of the attitude of the nation-states.
èStates assert special rights in the air space & do not like people just flying around over their territory without permission.
2) Versailles Peace Conference:
Pre-1919 Paris Convention:
Prior to Versailles there was a conference in 1910 that France had convened, which was abortive, nevertheless, it had some important ideas. For ex. it gave birth to the idea that an aircraft must be registered in a particular country. However, at the conference, there was no agreement as to the airspace. The UK did not have airships in 1910 & Germany did have them & these did have the potential of reaching the UK. Hence, the UK said did wish to permit just anybody to fly over our territory b/c they wanted to protect their industry. Thus, the 1910 conference was arguably in & of itself a failure.
1914-1918 – Aviation became even more of an issue as states uniformly began to restrict airspace. There was then a consensus to proclaim that each state enjoys exclusive sovereignty space over their territory & waters – this was not a creation of a right, rather i
ication. Aviation must no longer be perceived primarily as a potential menace to the national security it is an essential public service. It safety, regulatory and economic efficiency should be the guiding principled of regs, taking priority over national pride, prestige and wasteful protectionism.
Three Air Law Issues Involving Sovereignty
1) Safety Oversight (discussed below)
Safety is one of the main objectives of Chicago. Ss. 37 & 38 established a sound & workable process of (1) collaboration by States working in ICAO to establish int’l standards & procedures; (2) incorporation by sovereign States of such standards & procedures into their national legislation & regulations & (3) immediate notification to ICAO of any departures from such int’l standards & procedures. Each State is expected to have & follow its own oversight procedures to ensure that standards related to safety are followed. Chicago does not allow for a situation where States do no comply & do not file differences. Although a major problem is the failure of many States to fulfill the ob they assumed to notify IAO of any differences b/t these int’l standards & practices & those that each State actually maintains. Sovereignty of States of course effectively precludes the design or use of sanctions to obtain the essential compliance.
Any State that receives flights of aircraft registered in the non-complying State has every reason to be concerned about whether int’l standards & procedures are being followed. These concerns can be exacerbated if there is reason to believe that the State of registry does not have or is not implementing safety oversight.
