A Role of Chicago Convention and ICAO in the Development of International Air Law: A Critical Approach
Before the advent of aircraft, law-makers cared little for the sky above. Even when Ghenghis Khan's falcons preceded his master's hoards of horseback warriors, it was probably a welcome intrusion on airspace: a life-saving signal to run and hide! But balloons made way to dirigibles, then to winged aircraft. In the First World War, weapons were fitted onto aircraft and the world took notice. All Nations and states looked up and demanded and enforced sovereignty over their respective territories. The idea of freedom to fly over other countries is based on a principle published in 1609 by Hugo Grotius defending the right of the Dutch India Company to trade in the Far East. Called Mare Librium, it stated that any country could sail on the seas without restrictions by other Nations. The work of Grotius and of others like him formed the basis of much modern International Law.
Overview: Development of International Air Law:
The question of National air space first arose when balloons used during the Franco-Prussian war in 1870-71. After the war, opinion was divided as to whether the air should be treated like the high seas, free for the use of all, or whether a Nation should be able to control, who used it. The issue became relevant to powered flight in 1909, when the French pilot Louis Blériot crossed the English Channel to England. The next year, in 1910, an International Conference of Diplomats in Paris failed to reach an agreement on the question. After World War I, the United States, the "British Empire", Brazil, France, Greece, Italy, Japan, Poland, Czechoslovakia in total 26 countries met in Paris and drew up the Convention Relating to the Regulation of Air Navigation known as Paris Convention, 1919. They voted to give each Nation “complete and exclusive sovereignty over the airspace above their territory”. Neither the
United States nor Russia signed the agreement. The delegates also established the International Commission on Air Navigation (ICAN) as a forum to discuss the rules for allowing foreign aircraft to use sovereign airspace. Also, in the same year, six European airlines formed the International Air Traffic Association (IATA) to help airlines standardize their paperwork and passenger tickets and also help airlines compare technical procedures. The IATA also created some common rights for passengers, such as the right to be paid, if an airline caused a passenger loss, damage, or death. The Havana Convention on Civil Aviation was drawn up in 1928, and ratified in February 1931, by the U.S. Senate. Agreed to by 21 Western Hemisphere countries, the convention guaranteed the right of innocent passage of aircraft and formulated the rules for International Air Navigation between the contracting states relating to aircraft identification, landing facilities, and standards for pilots. It also stated the right of each country to set the route to be flown over its territory. In 1929, delegates to the Warsaw Convention, which included the United States, agreed to limit passenger compensation for loss of property or harm to a passenger by an airline to $8,300. This amount was measured using gold based on the value of the French franc. In response to the invitation of the United States Government, representatives of 54 nations met at Chicago from November 1 to December 7, 1944, to "make arrangements for the immediate establishment of provisional world air routes and services" and "to set up an interim council to collect, record and study data concerning international aviation and to make recommendations for its improvement." The Conference was also invited to "discuss the principles and methods to be followed in the adoption of a new aviation convention."
At the Conference, delegates agreed upon a new convention, which formed the basis of Air Law ever since, both Domestically and Internationally....
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