Aviation Law in International Law
Aviation Law in International Law
The importance of modern aviation was recognized during World War II, when a conference was convened in Chicago in 1944 to discuss regulation of postwar international civil aviation. The resulting Chicago Convention of 1944 codified public international aviation law. Contracting nations adopted international regulations, standards, and procedures for the use of communication systems and air navigation aids; for airport characteristics; for rules of the air and air traffic control; for airworthiness of aircraft; for licensing of operating and mechanical personnel; for aeronautical maps and charts; for log books; and for measures to facilitate air navigation.
The established principle that every nation has complete and exclusive sovereignty over the airspace above its territory was reaffirmed. Every civil aircraft in international aviation must be registered, carry the nationality of the country of registration, and bear appropriate identification markings. The convention granted transit rights (that is, the right to fly over another nation’s territory and the right to land there for nontraffic purposes, such as refueling) and permitted nonscheduled, charter, and private flights.
A similar arrangement in traffic rights (to pick up and set down passengers, cargo, and mail) was not adopted, and bilateral negotiations had to be carried out to effect such arrangements. The American principle of “freedom of the air” and the British principle of “order in the air” were reconciled in 1946 in Bermuda at a meeting between the United States and Britain. Subsequent bilateral agreements are based on the so-called Bermuda Principles covering the regulation of routes, capacity, and tariff.
Another outcome of the Chicago conference was the International Civil Aviation Organization (ICAO), which was formally established in 1947 as an agency of the United Nations (UN) to foster development and promote cooperation in international civil aviation. The organization has a legal committee that is responsible for producing treaties, conventions, and protocols in those areas of aviation in which uniformity is desirable.
A basic agreement in international aviation law is the Warsaw Convention of 1929. This convention provided for presumptive but limited liability of an air carrier for personal injury or death of a passenger and damage to goods in international air carriage. Liability for death or personal injury to a passenger was limited to $8,300. The Hague Protocol was adopted in 1965. Constituting a series of amendments to the Warsaw Convention, the protocol doubles the liability limit. The United States was not a party to the conference at Warsaw that produced the Warsaw Convention, but adhered to it in 1934. By 1969 it had not ratified or adhered to The Hague Protocol. In 1965, indeed, the United States gave notice of its intention to denounce the Warsaw Convention because of its low limit of liability. The Americans withdrew this notice, however, when air carriers, under the auspices of the International Air Transport Association (IATA), a trade association, agreed to raise this limit to $75,000 with respect to passengers traveling to or from or passing through the United States. This so-called Montréal Agreement was then incorporated in airline tariffs, which were accepted by the national Civil Aeronautics Board (CAB). A new treaty, the Guatemala Protocol to the Warsaw Convention, was enacted. It was signed by the United States in 1970. The protocol provided for absolute liability on the part of the airline as well as for an unbreakable limitation of damages to $100,000. The Guatemala Protocol was later amended to provide that the limit would be 100,000 Special Drawing Rights (units of international monetary exchange administered by the International Monetary Fund). This new treaty, entitled the Montréal Protocols 3 and 4, was denied ratification by the U.S. Senate in 1983.
The ICAO’s legal committee, in 1963, produced the Tokyo Convention, dealing with offenses committed on aircraft. The many aircraft hijackings since 1968 brought pressure to ratify the treaty, and in May 1969 the U.S. Senate consented to the convention’s ratification. More stringent security measures for international flights were called for in an amendment to the Chicago Convention adopted by the ICAO council in 1985. (1)
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