Evolution Of International Aviation Law
Author: Anmol Agarwal, Maharashtra National Law University, Mumbai & Prapti Allagh, UPES Faculty of law
Abstract
Air travel commences from the Period when Balloons were considered to be the only source of going in the air, an essential aspect of balloons was that they were not driven with the very will of the human beings, but were flown by the rules of weather. During the early years, the Balloons were lifted on a trial basis, by the Montgolfier brothers, with putting a sheep, a rooster, and bird within the Balloons, by this the brothers wanted to check the impact of the height upon the animals. Eventually, for the very first time, 7 humans were taken aboard on the balloon, and as soon this event took place, in 1784 Paris police ordered legislation forbidding balloon flights without any special permits. This seems uncanny, that just when there was an involvement of human beings in the conduct of balloons, there was an evolution of legislation. However, it did seem fair in terms of the anticipation of the incidents that could have taken place.
The first time the need for discussions on aerial space arose in 1871, post the impact of France and Prussian war. During the war, the French troops laid siege to Germany, impairing the inhabitants to leave the city, because of which the French authorities were compelled to order the construction of a large number of balloons, and airlifting the citizens of Germany (Prussian) to other places. During this process, French had seized any kind of entry to German people, however, they entered the air space of French while traveling to other countries. This resulted in the need to define the prospects of the jurisdiction of air space.
The very advent of airplanes led to the commencement of various treaties within the regional ambit. Each country had considered various aspects on nature and how it seems to govern aerial legislations, most startling examples, could be UK’s Aerial Navigation Acts of 1911 and 1913, which aimed at prohibiting and improving security measures within the British Coasts, another one could be the 1912 Russia’s prohibition towards other countries to overfly from the western frontiers. Most importantly, the prohibition by the US government to allow any country from overflowing of the Panama Canal. Although, such regulations lacked any kind of uniformity and there were a lot of conflicts in the manner in which air space should be used.Before World War I, in 1910, the very first need to negotiate on aerial space was demanded by France. This need was elevated from the past instances that took place when Balloons were the only aerial source. However, the conference did not conclude because of the determined rights of foreign aircraft to overfly the territorial air space of another country and such rightscannot succumb, moreover there was the commencement of the phase of the first world war which led to an end to the ongoing discussions. Eventually, the first passenger flight took off from S. Petersburg in 1914, and the need for protocols increased.
During World War I, States realized that airplanes could be used as a better vehicle to invade the sovereignty of a country. Moreover, the increase in air traffic led to navigational issues and after World war I, the countries seizedthe entry of any foreign aircraft.
CINA(Convention Internationale de Navigation Aerienne)also known as the Paris Convention, was the first multilateral international agreement emphasizing navigational issues for air transport,was concluded on 13th October 1919 after being signedby a total of27 states. The convention by laying down the doctrine of sovereignty within the aerial space brought about the rules of aerial navigation. The emergence of this regulationgave rise to the essential prospects regarding the marked territorial sovereignty of a country within the airspace.
However, the concrete base of the regulations emerged with the end of World War II, the countries realized that it got easier to cross oceans. Countries eventually apprehended that navigation was not the only aspect that wasrequired to be regulated.
The Convention of International Civil Aviation also known as the Chicago Convention of 1944, took into account two important aspects, firstly, the aspect ofimplementing international standards for aerial navigation and secondly, whether there exists a link of such international rules within the economic sphere. Both of these notions were largely recognized by the committee. The committee kept these rules to be universal to maintain peace and harmony. The countries aimed at maintaining the economic interests of all the nations, including the ones which are not equipped with any international airlines. and that would be considerate towards the nations that are not equipped with any international airlines. The countries had a strong conclusion to maintain order concerning economic fares, frequency of flights, air navigation, and various such elements that seemed prolific. This led to the establishment of the International Civil Aviation Organization (ICAO), to supervise and ensure adherence to the international aviation rules. However, ICAO lacked any kind of regulatory powers within the economic sphere, but the prevention of any kind of unreasonable competition has been laid down as a constitutional objective within ICAO, under Article 44(e). In furtherance, the convention again emphasized on the guarantee of sovereignty within the aerial space.
The origin of the Tokyo Convention was in a project of the ICAO legal committee named “legal status of the aircraft”. The United States had a major role in the development of the main features of the draft convention in the years which featured for a while of 1956-1962 at the Geneva Session of 1956, the Montreal Draft of 1958, the Munich Draft of 1959, the Montreal Redraft of 1962 and the Rome Draft of 1962 where the debates and the negotiations of some of the most astonishing problems of International Air Law were concluded. As of 2015, the Tokyo convention has been ratified by 186 states. It has startled the world by answering the problems relating to the conflict of jurisdiction which arises when there is criminal activity on board in a flight with an international ambit. This convention aimed at establishing the rules of jurisdiction for the offenses committed onboard instead of criminalizing them and it only applies to minor offenses in contrast to the conventions for major offenses piracy. The Tokyo Convention further lays down the aircraft commander authority to restrain offenders and disembark them or deliver them to law enforcement authorities, along with appropriate legal protections. According to Article 3 of the convention, the state of registration of the aircraft was competent to exercise jurisdiction over the offenses and the acts committed on board which is being subject to amendment currently.
With the increasing trends of use of air travel by a large population, there were increased threats due to an elevated number of unlawful activities.It was witnessed with one of the most dreadful aircraft hijacks in the history, in September 1970, a flight scheduled from London to Rome was hijacked on gunpoint by the gunmen from the Popular Front for the Liberation of Palestine (PFLP). The PFLP gunmen demanded the release of the bodies of the two convicts in the hijack of EI AI Airlines flight 426. This obnoxious and unwelcoming September was called out to be ‘Black September’and asked the world to realize the need to regulate and fight against the oppression of the unlawful acts of seizure or control of aircraft. Hence, ensuring the security of the civilian population. This led to the conclusion of The Hague convention, which was adopted on 16th December 1970. The convention aims at regulating unlawful activities onboard an aircraft. This convention was witnessed to be an extension of the Tokyo Convention of 1964.
On 11th September 2001, the world witnessed the most calamitous acts of terror. The terror attack occurred by hijacking four aircraft of American Airlines and United Airlines respectively, and purposefully colliding them into the World Trade Centre. To reinstate the confidence of the people at large, the Beijing convention was concluded in 2010. This convention called out the need for international cooperation to suppress any nature of unlawful activities about international civil aviation. The objective of this convention was to standardize security procedures and to bring into motive an enforceable law against any kind of unlawful activities, it was different as to the previous convention with a wider scope and for unlawful usage of aircraft.
At present, the Beijing convention is considered to be the latest convention concerning international air law. The recent attacks by Iran have surely created an alert within the nations to emphasize the need to regulate international cooperation and to lay down responsibility upon the countries in case any such violations occur. There is a need for strict enforcement and better cooperation between states to maintain peace amongst the nations.
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