Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
Part I – General 1. The Sources of Int’l Air Law
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- Q How does customary law relate to int’l law
- Q What is meant by the words “air space”
- Q What is the developmental history of public int’l air law
- 2) Versailles Peace Conference
- 1919 Paris Convention Background
- Part II: State Sovereignty
Part I – General1. The Sources of Int’l Air LawQ? 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. States 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 it was recognition of the right. This was all done in the shadow of war to protect oneself agst foreign intrusions. Of course in the evolution of law later in Chicago the wartime allies (enemies of Berlin, Rome & Tokyo) illustrated that those countries had their rights to do business (flying). US wanted fee airspace everywhere, but the economic protectionism prevented this via the exclusive air space of each sovereign state.
Versailles Treaty concluded Germany was to be disarmed & can’t have military or naval aviation. Due to this rule in Versailles, people started asking what is a military aircraft? What is an aircraft & how should we regulate it? Suddenly, some people at the Conference remembered the abortive conference convened by France in 1910 that tried to negotiate the first-ever treaty on the utilization of the air space by aviation. This is the first real source of Public Int’l Air Law & says in the very first art. something very dramatic & vastly different from 1800’s thinkers who had said that air space should be an area of unrestricted access. The difference from what the 1800’s thinkers had argued for & what was actually included in the 1919 document is due to the experience of WWI where nation-states saw that aircraft could be used for military purposes & used very effectively. Part II: State SovereigntySovereignty is the very core of entry into binding pacts b/t & among nations. Sovereignty is essential, but is being eroded. Yet, at the same time, sovereign jurisdictions are growing in as it continues to evolve. The adherence of State to a convention is an act of sovereignty by which that State accepts being bound by the provisions of that convention. Every State has complete & exclusive sovereignty over the airspace above its territory & territorial waters. By its terms, complete & exclusive sovereignty implies an absolute right to take whatever action the offended state deems appropriate. However, according to custom & agreement responses are dependent on whether the aircraft was civil or military & whether it was in distress, hostile or peaceful, in a state of war or peace & the existing political climate. Political will of States must reassess the legal axiom of sovereignty and its practical interpretation and application. 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. Directory: pubdocs -> files files -> International maritime conventions files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law files -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Topic One Seaworthiness and Common Venture, chapter 15 Download 0.73 Mb. Share with your friends:
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