AN HISTORICAL SURVEY OF INTERNATIONAL AIR LAW
BEFORE THE SECOND WORLD WAR*
Peter H. Sand (Germany)
Jorge de Sousa Freitas (Brazil)
Geoffrey N. Pratt (U.K.)
EDITOR’S NOTE: This article is the first of a two-part series dealing with
the development of international air law from its very beginnings until the
present time. The second and concluding article, which will be an historical
survey of international air and space law between the end of World War II
and recent times, is under preparation and will appear in a subsequent issue
of the Journal.
INTRODUCTION
The aim of this article is to present an historical outline of the more
interesting and important aspects of air law from its beginning to the year
1944. There is a vast amount of literature dealing with aviation and it may be
convenient to interested readers to have some of the more important events
relating to the development of air law compressed into a comparatively short
treatise. In doing this, however, the authors realize that features which are
deemed important by some jurists may have been omitted.
Chapter I
AIR LAW PRIOR TO 1919
Air law has been described as the “last born of juridical notions.”‘
Its
very origin, however, can be traced back to classical Roman Law2 when the
basic problem of rights in the airspace was first noted. The maxim “Cuius est
solum, eius est usque ad coelum” (who owns the land, owns even to the skies)
has provoked legal discussion ever since, in the fields of both municipal and
international law:–from the case of Bury v. Pope (1586, Cro. Eliz. 118) in the
Common Law to the codes of the Civil Law adopted in the 19th and 20th
century;3 from Grotius’s “De iure belli ac pacis”4 and Danck’s “De iure principis
*Research project by Peter H. Sand (Germany), Jorge de Sousa Freitas (Brazil) and Geoffrey Pratt
(U.K.) post-graduate students of the Institute of Air and Space Law, McGill University.
1I Goff, Marcel, The Present State of Air Law, The Hague (Ni jhoff 1950) 24.
2Pampaloni, Muzio, Sulla condiZione giuridica dello rpa~io aerro e del iottoesolo nel diritto romano r
odierno, Archivio Giuridio 48 (1892), 35; Lardonc, Francesco, Airspace Rights in Roman Law, Air Law
Review 2 (1931), 455; Cooper, J. C., Roman Law and the Maxim “iCuius et solum” in International
Air Law, Montreal, (McGill, 1952.)
3See French Civil Code (1804), art. 552; Austrian Civil Code (1811), section 297; Italian Civil Code
(1866), art. 440; Quebec Civil Code (1866), art. 414; German Civil Code (1900), section 905; S~vii,
Civil Code (1907), art. 667.
4(1625); see Book I, Chapter 2, Sec. 3(1).
No. 1]
HISTORY OF AIR LAW
in aereo”S in the 17th century, to the Chicago Convention of 1944. “Air Law”
has been retained as a general term for what is essentially “Aviation Law”
today. It is in this respect that Air Law can be considered as a “young law”‘
I. DoMESTIc AIR LAw BEFORE 1919
Decrees and Statutes
It is generally agreed that the first air law promulgated was an ordinance
of one Lenoir, a “lieutenant de police” in Paris, prohibiting balloon flights7
without special permits as from April 23, 1784. This was one year after the
first aircraft, a hot-air balloon constructed by the Montgolfier Brothers, had
left the ground. In the same year as the Paris ordinance, the City Council of
Ypres in Belgium, promulgated a similar enactment concerning balloon flights,
as did the Council of Namur in 1785, and the Senate of Hamburg in 1786.8
The first regulation for safety in air navigation was made in 1819 by Count
d’Angles, Police Prefect of the Seine Department, requiring balloons to be
equipped with parachutes, and prohibiting aeronautic experiments during the
harvest.9
In 1908, the Council of Kissimee City (Florida) enacted the first air traffic
regulation which stated that the airspace subject to the legal control of the
city extended upward to a limit of twenty miles. The enactment contained
further provisions for the regulation of aerial traffic above the city and recom-
mended that the Council should “as soon as practicable purchase an aeroplane
to enable them to properly enforce the provisions of the ordinance”. 1 0
The first customs regulations for aviation were introduced in 1909 by a
circular of the French Prime Minister, Clemenceau, imposing duties on balloons
from abroad.1″
5Danck, Johann-Stephan, Thesis, Frankfurt-on-Oder (1687); S. Strykii opera, 5, Florence (183S..
1190; Nys, Urn dissertation du XVIle sigch sur I droit alrien, Revue de Droit International et de Ligislation
Compari, 43 (1911), 323-325; Cooper, op. cit., 25-26.
6Riese, Otto, Luftrecht, Stuttgart (Koehler, 1949), 10.
7Shawcross and Beaumont, on Air Law, London (2nd ed. Butterworth 1951), 3; some authors datc
this ordinance back to 1724, which appears to be a mistake: see Le Goff, Marcel, Manuel de droir
airien, Paris (2nd ed. Dalloz, 1954), 49; Hamilton, Eduardo, Manualde derecho aireo, Santiago de Chile
(1950), 29.
8Litvine, Max, Pricis 1lementaire de droit airien, Brussels (1953), 21; Troitzsch, Archiv far Luftrecht,
(1940), 119, note 8.
OHotchkiss, H. G., A Treatise on Aviation Law, New York (2nd ed. Baker-Voorhis 1938), 4.
10″Ordinance regulating the status and the employment of airships within the town of Kissimec
City”; Lycklama, Johanna F. i Nijeholt, Air Sovereignty, The Hague (Nijhoff 1910), 43.
“March 12, 1909; Bulletin Officiel du Minisire do l’Intirieur, March, 1909, 127; Revue Juridiyue
Internationale de la Locomotion Alrienne, 1 (1910), 20 (cited hereinafter as RJILA).
McGILL LAW JOURNAL
[Vol. 7
In 1910, U.S. Congressman Sheppard introduced the first bill relating to the
carriage of air mail. 1 2
From 1910 to 1914, aviation decrees were enacted in Brandenburg, Prussia, 3
Great Britain, 4 Connecticut,’ 5 Pennsylvania, California, 6 France,’ Austria,
Serbia, Germany, Massachusetts, Russia, Switzerland, and Italy.”8
The first air navigation company had been incorporated in New York by one
Dr. Andrews, in 1865. 9 In 1910, an air-transportation company, organized
by Count Von Zeppelin, began a scheduled dirigible service between Fried-
richshafen and Dusseldorf (Germany). 2
0 In 1914, an air transport service was
opened between St. Petersburg and Tampa (Florida); the first regular air mail
service started in the spring of 1918, between New York and Washington. At
the same time, scheduled air transportation was attempted in Italy and Austria-
Hungary. 21
Court Decisions
The first reported case in the Common Law referring to air navigation was
Pickering v. Rudd, decided in 1815. Lord Ellenborough expressed a doubt as to
whether an aeronaut would be liable “to an action of trespass quaers clamsom
fregit at the suit of the occupier of every field over which his balloon passes in
the course of his voyage’ .22
In January, 1822, the first case of a tort committed by an aviator was
decided by the New York Supreme Court.23 A balloonist had made a forced
descent upon the plaintiff’s land and attracted large crowds who trespassed
“A bill for an investigation to determine the practicability and cost of an aeroplane or airship
mail route”, H.R. 26833, 45th Congress (June 14, 1910).
“Angust 10, and October 22, 1910; RJILA 1 (1910), 221; Henry-Cofiannier, AndrE, Ellments crlateur
d, droit afrien. Paris (Per Orbem 1929), 16.
4″Aerial Navigation Act,” June 2, 1911; repealed in 1913.
June 8, 1911; Fixel, Rowland W., The Law of Aviation, Charlottcvilcl, Va. (3rd ed. Michie 1948),
2S
6″‘Statue on registration and control of aeroplanes in California”; see D’Hooghe, Edouard,
Drvit airien, Paris (Dupont 1912), 100-103; RJILA 2 (1911), 78, 245.
‘7 November 11, 1911; repealed December 17, 1913; see Henry, op. cit. 19, 20.
“See Henry, ibid.; Fixel, op. cit., 28; Riese, op. cit., 22.
“he Aerial Navigation Company Inc., built and flew motor-less dirigibles; (1942) U.S. Av.R. ii;
Shawcross, op. cit., 3.
“Deatsche- Lftirchiffahrt AG (DELAG); during the four ensuing years the company operated a
number of Zeppelins for a total distance of approximately 100,000 miles and carried more then 17,000
passengers; see Speas, Dixon R., Technical Aspect: of Air Transport Management, New York (Maple
1955), 1.
2″See Lissitzyn, Oliver J., International Air Transport and National Poliry, (New York Bidwell 1942), 1.
ssPickering v. Rudd (1815), 4 Camp. 219; 1 Stark 56; 16 R.R. 777; see Kuhn, Arthur K., The Beginniugr
P an Aerial Lau-, Am. J. Int’l L. (1910), 109-132.
‘ Guille v. Swan (1822), ]9 Johns. (N.Y.), 381; (1928) U.S. Av.R., 53; CCH Av. Cas. 1 (1947), 1.
No. 1]
HISTORY OF AIR LAIV
thereon and caused damage. It was held that the defendant was liable in
trespass.
In 1852, a similar factual situation was the subject of the first Civil-Law
decision on air navigation.24 The French Cour de Cassation in a criminal case
came to the conclusion that, as the defendant balloonist had been crying out
for help, his descent was unintentional (force majeure), and that, therefore, the
charge against him should be dismissed.
The first English case of damage caused by aviation was Scotts Trustees v.
Aoss, 2
5′ in which a parachute descent attracted crowds on to the plaintiff’s
land, so that his property was damaged. The organizer of the spectacle was
held liable in damages, but it is not clear from the report on what grounds.
Doctrine
From 1891 to 1896 the first treatises dealing with the legal aspects of aviation
were published in Italy, France and Germany.2 6 In 1898, the first doctorate
thesis on the subject was written.2 7
Paul Fauchille’s classic article “Le domaine ae’rien et le rgimne juridique des
alrostats”, in 1901,28 and the Wright Brothers’ first authenticated flight in a
motor-driven heavier-than-air machine, in 1903, marked the beginning of a
flood of publications. Although air navigation itself was still at a rather
primitive level, many of the legal problems involved could be foreseen, discussed,
and resolved by jurists before the advance in the technical aspects of aviation
had made them pressing.29
In 1910, the first lectures on air law were given at the “Ecole Supirieure
d’Aronautique” in Paris and at King’s College in London.3 0 In the same year
the first air law periodicals were published: the “Revue Juridique Internationale
de ]a Locomotion Afrienne” and the “Air Law Review”. 3 ‘
In consequence of the international character of air navigation, it soon
became evident that most of the legal problems could not be resolved on a
purely national basis. International regulation was necessary.
1″Cour de Cassation, (Ch. crim) (August 14, 1852); RJILA 1 (1910.
‘Sotts Trustes v. Mots (1889), 17 R. (Ct. of Sess. 32.
.’Manduca, La respousabilit penale dei reati commessi ndclo *pazio arreo e /a iurisdiione istruttoria,
Rotne (1891); Pampaloni, op. cit.; Wilhelm, Dt la situation jurilique des aironauts en droit international,
Joanal du Droit International Prire, 18 (1891:’, 440; Jurisch, Kunrad V., L tber .leutsces Luftre.hr,
lerlin (1896).
19.
?Erythropel, Hermann, Das Recht am Luftraun, Gottingen Univ. :1898).
‘8 Revu Gnirale d Drait International Public, 8 (1901;1, 414.
“rMeyer, Alexc Freiheit der Lu!t als Rechtsproblem, Zurkh -‘Air-Ed. 1944), 23.
‘OiHenry, op. cit., 3; Hazeltine, The Law of the Air, London (Univ. Press 1911), 1; Pipin, Eugenc,
I insegnement du droit alrien .ans be monde, Montreal (McGill 1958”, 3.
‘iSee Pipin, ibid., note 10; Shawcross, op. cit., 4. In the same year. Laud., E. gave the first definitim
of Outer Space Law: Communt i.appellera !e .Iroit aui rgir. .a rie .le *air, RJIL4 1 (1910). 1s.
McGILL LAW JOURNAL
[Vol. 7
II.
INTERNATIONAL AIR LAw PRIOR TO 1919
Work of International Juridical Societies
The main international discussion on air law took place among the members
of the Institute of International Law (Institut de Droit International). At the
Brussels session in 1902, Fauchille and Nys introduced the celebrated theory
of “freedom of the air”.32 Since this date, publicists of international air law
can be classified into four categories: authors in favour of absolute freedom of
air navigation, 33 those in favour of absolute State sovereignty in the air,”‘
to sovereignty,35 and those
those accepting a vertical limitation (“zones”)
accepting a functional limitation by international law.36
The Institute of International Law discussed various drafts of an “Inter-
national Code of the Air” during its sessions at Ghent, 1906, Florence, 1908,
and Paris, 1910. At the Madrid session in 1911, it adopted certain rules
governing aircraft, the fundamental principles of which are generally retained
today in the written international law on this subject.3 7
At the same time, various other international societies dealt with air law
problems:
The International Aeronautic Congress in Paris, in 1889 created a Permanent
International Aeronautics Commission which subsequently held meetings in
Paris, 1900, Milan, 1906, Brussels, 1907, and Nancy, 19C9.3 s
The “Comit6 juridique international de l’aviation”, cstablished in Paris,
1909, prepared a draft “International Code of the Air” through its national
committees and held meetings in Paris, 1911, Geneva, 1912, and Frankfurt-on-
Main, 1913. 3’
The “Congresso giuridico internazionale per il regolamento della loco-
mozione aerea” took place in Verona, in June, 1910. 40
.4nnuaire de l’Institut de Droit International, 19 (1902), 19, 86.
3Advocated prior to 1919, e.g., by Mcili, Nys, Pradier-Fod&r6, Stephan, Stranz, Wheaton.
31E.g.: Baldwin, Collard, Gemma, Griinwald, Hazeltine, Von Liszt, Lycklama, Von Ullmann,
Zitelmann.
-“E.g.: Bluntschli, Bonncfoy, Fauchille, Despagnet, Mcrignhac, Oppenheim, Rolland, Von
Holtzendorff.
6E.g.: Anzilotti, Corsi, Hilty, Meurer, Meyer, Pietri, Rivier, Von Bar, Westlake. This group
appears to have been the dominant one, although it widely differed on the question of the degree of
limitation. The Institute of International Law in 1911 only recognized certain rights of protection
for the States, without limiting air circulation itself; Anzilotti and Westlake advocated a right of
innocent passage as a limit to sovereignty: Meyer accepted limitation by international agreement.
3’Fixel, op. cit., 29.
‘”Sce Roper, Albert, La conrention internationale du 13 octobr 1919 pertant riglementation de la navigation
airinne, Paris (Sirey 1930), 20; P6pin, Eugene, Le droit alrien, Paris (Rec. des Cours), 71 (1947 11), 481.
39Fixel, op. cit., 28; Roper, op. cit., 21.
40May 31 – June 2, 1910; Atti e relazioni, Verona (Socient ripografica cooperativa, 1910); RJILA 1
(1910), 175.
No. 1]
HISTORY OF AIR LAW
The International Law Association formed an Aerial Law Committee at its
1912 session in Paris, and discussed air law problems in Madrid, 1913.41
The Pan-American Aeronautic Federation held a meeting in Santiago (Chile),
1916, which recommended that the American republics should make their
national aviation legislation uniform with a view to the formation of an
International Air Code.4 2
*The Nordic Aviation Conference in Stockholm, 1918, and the Budapest
Air Law Conference in 1918 also considered the international unification of the
law relating to aviation.43
Diplomatic Documents and International Conferences
The first diplomatic document concerning international aviation law dates
back to the Franco-German War of 1870-71, in which balloons were used on
both sides, especially during the siege of Paris. A letter dated November 19,
1870, addressed by Bismarck to the French government through the American
ambassador Washbourne, declared that aeronauts overflying the territory
occupied by the German troops would be treated as persons operating behind
the battle lines.44 This first claim to sovereign rights in the airspace caused
considerable protest by jurists.
The First International Peace Conference at the Hague, in 1899, came to a
temporary agreement on aerial warfare:
-The contracting powers agree for a term of 5 years to forbid the discharge
of projectiles.and explosives from balloons or by other new methods of a similar
nature” .4
1
This declaration was not renewed, however; at the Second Hague Conference
in 1907. The International Naval Conference in London, 1907, included aircraft
in its discussions on the legal status of war instruments.46
At these diplomatic conferences, international control of air navigation had
only been considered from a military standpoint. By 1910, however, the French
Government had become concerned about the number of peaceful but un-
regulated international flights that were taking place. Balloons frequently
took off from one State and landed in another or wherever they might drift.
“lntcrnational Law Association, 28th Report (1913), 533; De La Pradelle, Revae Ginlrale de Droit
Ah’ie (1932), 539; Henry, op. cit., 15; Litvine, op. cit., 24.
4 Fixel, op. cit., 32.
43Haupr, Der Loftran, Breslau (1931), 49; Meyer, op. cit., 43; Schiffer, Walter, Nots on the Nordic
4″Nys, A maired d l’Intitut de Droit Intenational, 19 (1902), 109; Henry, op. cit., 187; Risch, R.,
Aviation Conirfmu, Stockholm (1918), 77.
Rerve Glnfrok it DrAit Arien (1932), 817.
1936), 3; Fixel, op. cit., 26.
*Tombs, Lawrence C., International Organigation in European Air Transport, New York (Columbia
8″Les arostats et les appartils d’ariation”; see Litvine, op. cit. 24; Kuhn, op. cit., 123.
McGILL LAW JOURNAL
[Vol. 7
In 1908, for example, at least ten German balloons crossed the frontier and
landed in France carrying over 25 aviators, most of whom were German officers.
Blriot took off from “Les Barraques” on his trip across the Channel to Dover
on July 25, 1909, without any thought of the legality of his entry into English
territory. Fearing a disagreeable incident, the French Government invited the
European powers to hold a conference in 1910 on the regulation of air
navigation. 47 The 19-state conference which followed, though technically a
diplomatic failure, 48 was of great historical importance. When the conference
met, there existed no acceptable plan for international flight regulation. When
the conference adjourned, it had completed a draft convention of 55 articles and
3 annexes, including such subjects as aircraft nationality, registration, rules of
the road and photographic and radio equipment in aircraft. The conference
agreed on the following principles which were to reappear in the Paris Conven-
tion of 1919 and which influenced the Chicago Convention of 1944: the subjacent
State may set up prohibited zones above which no international flight was
lawful; cabotage traffic may be reserved for national aircraft; the establishment
of international airlines will depend upon the assent of interested States. In
Professor Cooper’s opinion, the conference first evidenced general international
agreement that usable space above the lands and waters of a State is part of the
territory of that State.47 Thus, the cause of failure of the conference was not,
as generally supposed, the impossibility of reaching agreement as to the legal
status of airspace. The real causes of breakdown were political. Were the
restrictions imposed by each State on freedom of flight to be applied equally
to national aircraft and to aircraft of all other contracting States? When the
conference adjourned, never to be reconvened as originally intended, only one
legal point stood between the United Kingdom on the one hand, and Germany
and France on the other, and this concerned the legal status of private property
rights in airspace. Germany and France thought that each State should make
changes in its local laws to permit foreign aircraft to enjoy the flight privileges
granted by such State without interference from landowners. The United
Kingdom finally suggested that it would take the practical measures necessary
to make its local laws conform with the proposed convention and thus com-
promise would almost certainly have been reached. An attempt by an
international Committee of Aeronautic Law” in Brussels, to resume the work
of the Paris conference through the Belgian Government in 1913, was a
failure. 49
Thus the problems of international aviation were left to bilateral agreement.
The first bilateral agreement of this kind was the convention of 1898 between
47Conf&rnce Internationale de N:ri ation Atriemie, Procs-Verbaux, Paris (Imprimeric Naswnalc 1910),
Cooper, J. C., The Intmational AirNarigation Conference in Paris 1910, (1952) 19J.Air L. and Com., 12.
48Baller, Maurice, L’air etI .iroit, Lyon (Bosc 1927), 31.
4 ‘Lirvine. op. cit., 24.
No. 1]
HISTORY OF AIR LAW
Austria-Hungary and Germany on the legal status of military balloons over-
flying the frontier. It was concluded by a simple exchange of notes. 50
In 1910, the United States began bilateral negotiations on the regulation of
air navigation with Mexico and Canada.5’ In 1913, President Wilson declared
flights across the Panama Canal illegal. Any such flight was subject to a fine
of 1,000 dollars and one year in prison.5 -‘
In the same year, France and Germany concluded a bilateral air convention.
Like the Austro-German agreement of 1898, it simply consisted of two letters.
dated July 26, 1913, signed by the French Ambassador, Cambon, and the
German Secretary of State, Von Jagow.53 The convention, which resulted
from several aerial frontier incidents, established a distinction between military
and civil aircraft, uniform entrance requirements for foreign aircraft, and
special prohibited zones. It can be considered as an implicit recognition of the
principle of State sovereignty in the air. 4
World War I interrupted diplomatic negotiations on civil aviation. The
tremendous development of military aviation, however, brought about a
decisive change in governmental attitudes towards air transport. Great
Britain, which had been extremely hostile to an international convention in
Paris, 1910, 51 created a Civil Aerial Transport Committee in 1917 for the study
of post-war civil aviation problems.56 Similar studies were carried out in
France. 57
Moreover, an Inter-allied Aviation Committee (Comit6 InteralliE d’Avia-
tion) established in 1916 by France, Great Britain, Italy and the United States
in order to coordinate aircraft fabrication, and to standardize aeroplanes, motors
and other material, stressed the necessity of cooperation in post-war inter-
national aviation. 58
50June 8, and November 2, 1898; see Riesch, R., Dat trite Luftfahrtabkommen der Wl-t. Acbrv fdr
Luftrecht (1940), 41; Meyer, op. cit., 24, note 1.
5IRJILA 1 (1910), 222.
5’Hcnry, op. cit., 141; Litvinc, op. cit., 43.
53Journal Offic i de la Ripublique Franfaise (August 12, 1913); Reichsgesetblatt 4! 1913), 601,
Roper, op. cit., 246; Rolland, Louis, L’accord franco-allanI du 26 juillat 1913 rdti 4 la n35vsation
alrinne, Revue Giniral, de Droit Internationa! Public 20 (1913), 697.
“*Ballet, op. cit., 39.
5In 1910, civil aviation practically did nor exist in England.
In August 1914, the Birl,h flying
corps possessed some 150 machines; by November 1918, 22,000 machines; see Syke,, F. H., ,tcitoa:
in Peace and War, London (1922), 17, 43-44; Tombs, op. cit., 7, note 8; Sha %cros,, op. cit.4
“8May 22, 1917; British Parliament Cmd. No. 921 s< 1918); Cooper, J.C., The Riglt TO Fly, Nzw York
(Holt 1947), 22.
57Pbpin, Eugenc, Giographie de la circulation a’rienne, Paris (Gallimard 1956,, 26.
68Pignochct, Anne, La commission internatiota l, tI navigation airiennr, Pari, (Editioi m-
l:’rr ac, “il.
1935), 24.
McGILL LAW JOURNAL
[Vol. 7
International Practice
The first major international aerial incidents occurred at the Russian-
German border, in 1904 and 1910.
In August 1904, Russian guards shot down the German balloon “Tschudi”.
The affair caused great excitement among jurists, because the aircraft, at the
time of the shooting, had been flying outside Russian territory.59
Six years later, in August 1910, the Russian guards again manifested their
concept of State sovereignty by firing at aeronauts who had passed over the
frontier.6 0
Practice during World War I clearly affirmed State sovereignty in the air.
On August 3, 1914, the Netherlands prohibited flights over their territory.”
During the war, the Dutch Government protested several times against viola-
tions of its national airspace and shot down foreign aircraft which did not
comply with the interdiction. 2
Switzerland sent a note to France and the Central Powers on August 8, 1914,
announcing the prohibition of flights over Swiss territory by “any aircraft
from abroad”.”3 The declaration was not contested by the belligerents. Indeed
it was generally respected. 64
Denmark, Sweden, Norway, Greece, and Spain, Italy, Roumania, Bulgaria
and China, while still neutral, also protested by words or acts, or both, against
every violation of their airspace by foreign aircraft.65 It is, therefore, generally
agreed that international practice prior to 1919 evidenced a recognition of the
principle of State sovereignty in the air.61
-See Lycklama, op. cit., 43; Kroel, ljoseph, Trait’ ie Droit International Public Arien, Paris (Ed. Int.
1934) 1, 36.
65 5ee Lycklama, ibid.
f’Royal decree, State Bulletin (1914), 354; Goedhuis, Daniel, Handboek voor bet luchtrectt, The Hague
(Nijhoff 1943), 32; Spaighr, J. M., Aircraft in Peace and the Law, London (1919), 203-217; Hotchkiss,
op. ci., 6.
12S Spaight, J. M., Air Power and War Rights, Aberdeen (3rd ed. 1947), 422; cf. Kroell, op. cit., 37,
and personal experience, Rosevear, A. B., Q.C., Director, Institute of Air and Space Law, McGill
University.
63Journal Officid de la RepvHiqu Franfaie (August 10, 1914); on March 21, 1916, the prohibition
was put into effect by the establishment of an -air frontier zone”; Swiss Federal Instruction to the
milita;y authorities, see Kroell, op. cit., 73.
64A British note in 1914, however, whilst expressing its regret for a violation of Swiss airspace by
British aircraft, added that this “should nor be interpreted as a recognition by His Majesty’s
Government of the existence of an air sovereignty”; see Kroell, op. cit., 37, note 4.
See Hackworth, Digeir of International Law, Washington (Dept. of State 1943), VII, 549-553.
Spaight,J. M., Air Power and War Rights, op. cit., 420; Wine, Joseph R., Aerial Warfare and International
Law, Thesis, Montreal (McGill 1954), 22.
“Cf. Volkmann, Kurt, Internationales Luftrecht, Berlin (1930), 48; Kroell, op. cit., 35, 38; Hotchkiss,
op. cit.. 6: Goedhuis, op. cit., 32.
No. 11
HISTORY OF AIR LAW
Chapter II
AIR LAW BETWEEN THE WORLD WARS
I. PUBLIC INTERNATIONAL AIR LAw
A. The Paris Convention, 191967
During the 1914-1918 War, aircraft were used for many purposes and
increased in great numbers. Great Britain, for example, possessed only twelve
military aircraft in 1914. By the end of the War, she possessed twenty-two
thousand” This increase in aircraft together with the commencement of the
first regular service for international transport on March 22, 191968 and the first
flight across the Atlantic by Alcock and Brown between June 14 and 15 of the
same year, rendered apparent the urgent need for some kind of international
regulation of aviation. On the initiative of the French Government, a
conference of thirty-eight States was held in Paris and as a result of their
deliberations the First International Convention on Air Navigation was opened
for signature on October 13, 1919. This Convention contains provisions which
were taken from the opinions of early writers, such as Fauchille and those
who took part in the 1910 Conference on international air law. Their farsighted
work now bore fruit. The main principles of the Convention may be stated as
follows:
i) The recognition that every State has complete and exclusive sovereignty
over the airspace above its territory, (Article 1).
It will be seen that Article 1 of the Paris Convention gives recognition to the
principle supported by State practice before the First World War. The exponents
of the “free air” theory had been defeated. Any further discussion by them on
this subject could now only be directed to inducing the States of the world to
change or amend this principle.
ii’ The freedom of innocent passage of aircraft of contracting States over
the territory of other contracting States and the right to use the public
aerodromes of that State (Article 2).
It is important to realize that this freedom was granted as a privilege and was
not conceded as a natural right. Thus, although there must be equality in the
treatment of all contracting States, a State could make regulations as to the
admission of aircraft over its territory and permission to cross territory always
had to be sought. Article 15 supplements Article 2 by conceding that every
aircraft has the right to cross the airspace of another State without landing,
the route to be fixed by the State over which the flight takes place. Whether
this obligation included the obligation to permit the establishment of regular
lines across the territory of the States, gave rise to considerable controversy and
“tTombs, op. cit., p. 42; PNpin, op. cit., 485.
1 Bcrween Paris and Brussels by air balloon.
McGILL LAW JOURNAL
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hindered the development of international air transport. States realized the
economic value of the airspace above their territory and were unwilling to give
up a rich source of revenue. Thus, in practice, the establishment of international
airways and lines continued to be a matter of negotiation, or rather hard
bargaining, between States.
iii) For military reasons or in the interest of public safety, aircraft may L
prohibited from flying over certain areas of a State’s territory, no
distinction being made between its own and a foreign aircraft (Article 3).
This latter clause was removed by protocol in 1929. The removal of the clause
and the prohibition itself exemplifies the check on international air transport
imposed by the principle of sovereignty. An example of the abuse of this
article occurred when Italy prohibited flight over its entire Northwest, North
and Northeast frontiers just before the Second World War. There were, in
twelve other Italian prohibited areas. 9 Again, just before the
addition,
Second World War, flight across territory close to the Franco-German borders
became practically impossible because of these prohibited areas.
iv) Aircraft of non-contracting States were not to be permitted to enter
the airspace of contracting States.
This was soon modified by a protocol of the 27th of October, 1922, as many
States were refusing to ratify the Convention on account of the limitation this
article imposed on their bargaining power.
v) Uniform and obligatory regulation of air navigation to ensure safety,
was imposed.
vi) Other legal questions dealt with by the convention included registration
of aircraft, certificates of airworthiness, certificates of competency and
licences to be issued to aircraft personnel, and cabotage, to name but
a few.
Probably the most important achievement of the convention was the
creation of an International Commission for Aerial Navigation, commonly
known as C.I.N.A. Its main functions were: the preparation of amendments
to the convention for submission to States for ratification; the elaboration and
revision of the safety and technical regulations; the interpretation of these
regulations and the circulation of information respecting air navigation. At
its first meeting on July 11, 1922, the same day on which the convention itself
came into force, seven sub-commissions were set up to facilitate the study of
technical questions. These were the Operational, Legal, Wireless, Meteoro-
logical, Medical, Maps and Materials Commissions. C.I.N.A. possessed
administrative, legislative, executive and judicial powers as well as being an
advisory body and a centre of documentation. The work of C.I.N.A. and it!
subcommissions proved to be very helpful in the drafting of the technical
annexes to the Chicago Convention of 1944.
“Sce Tombs, op. chi., p. 86.
No. 1]
HISTORY OF AIR LAW
The importance of this Convention cannot be over-emphasized. Its provisions
became part of the national legislation of the contracting States and it proved
an inspiration to the development of national air law in Europe, which up to
that time was very limited. The Ibero-American Convention, signed at Madrid
in 1926, covered the same ground, and even the Pan-American Convention,
signed at Havana in 1928,70 reproduced a number of its essential provisions
although, whereas the Paris Convention dealt exclusively with public air law,
the Havana Convention took up certain questions of private air law as well. 7
t
B. The Ibero-American Convention, 1926
The “Convencion Ibero-Americana de Navigacion Area” referred to above
was signed on November 1, 1926. Spain had declined to ratify the Paris
Convention because she would not have been granted a voting power equal to
that accorded to France and Italy within C.I.N.A. She now invited all Latin
American States to send delegates to a conference to be held at Madrid between
the 25th and 30th of October, 1926. The resulting convention almost reproduced
the text of the Paris Convention, although all States were to have equal voting
rights in C.I.A.N.A., the equivalent of C.I.N.A. Only seven States ever
ratified the Convention and C.I.A.N.A. never became a really effective body.
C. The Pan-American Convention, 1928
At the Fifth Pan-American Conference held in Santiago in 1923, an Inter-
American Commercial Aviation Commission was established to draft a legal
code on civil aviation. The draft convention was submitted to the Sixth Pan-
American Conference which met in Havana on January 1, 1929. After minor
modification, it was signed by the representatives of the States present. Sixteen
States had ratified it by 1944 when the Chicago Convention resulted in its’
denunciation. The Convention was modelled on the Paris Convention, although
the material contained in the annexes to the latter convention was included
among the main provisions of the Havana Convention. The Convention also
dealt with some aspects of private air law.
D. The International Sanitary Convention, 1933
This Convention was signed at the Hague on April 12, 1933. It contains
numerous regulations consisting of measures to prevent the spread of plague,
cholera, yellow fever, typhus and smallpox. Some of its provisions have been
amended by the Sanitary Convention signed at Washington, December 15, 1944,
together with a protocol to the latter Convention signed on April 23, 1946.
One of the more important provisions is to the effect that passengers travelling
through certain areas must be possessed of certificates of vaccination to be shown
to the immigration authorities at the port of entry.
“0Latch ford, (1931), 2, J.Air L. and CAlm.. 207.
7’E.c., Article XXV concerning the rights and duties of the aircraft owner.
MCGILL LAW JOURNAL
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I.
PRivATE IwTa-EATiONAL AIR LAw
Shortly after the First World War, a number of aeronautical organizations
expressed concern at the lack of uniform regulation governing private air law.
Every State had it own laws on the subject and these varied considerably from
one state to another. A uniform system of regulation similar to that established
by the Paris Convention in the field of public air law was felt to be necessary.
In June 1923, the French Government submitted to the National Assembly a
bill regarding the liability of the carrier in air transport. Realizing that this
question could only be solved satisfactorily by international agreement, the
Government invited a number of States to take part in a conference whose
main aims would be to draw up a convention on the liability of the aerial
carrier and to decide whether it was desirable to pursue the study of the
international unification of private air law. Thus the First International
Conference on Private Air Law was held in Paris from October 27 to November 6,
1925. Forty-four States were officially represented, with observers from the
United States, Japan and Hungary also present. At the conclusion of the
Conference, a draft convention on the liability of carriers in international
transport was approved by the delegates and a resolution was adopted setting
up a committee of experts, to be known as CITEJA, 72 which was to continue the
work of the Conference. The first questions for study by CITEJA were:
i) Damage caused by aircraft to goods and persons on the ground.
ii) Compulsory insurance.
iii) Establishment of aeronautical registers, ownership of aircraft, vested
rights and mortgages.
iv) Seizure.
v) Renting of aircraft.
vi) Aerial collisions.
vii) Legal status of aircraft commander.
viii) Bill of lading (air consignment note).
ix) Uniform rules for the determination of the nationality of an aircraft. 3
The proposed committee was to be a purely advisory and completely independent
organization both in its methods of work and its operation. This was to ensure
the preservation of each State’s “complete sovereignty in all matters affecting
possible change in internal legislation.” 74
CITEJA met for the first time in Paris on May 17, 1926 and began the study
of the first questions submitted to it by the Conference of 1925. Twenty-eight
nations appointed representatives to attend the meeting. The committee met
-Comite Ioternational Technique d’Experts Juridiues Ahrien; see Ide (1932) 3 J.Air L., 27.
7″ConJtrence intretationale ,e lroit privi airicn. Issued by Frwnch Ministry of Foreign Affairs, 1936:
p. 90-91.
745-ee ide. o. cit. p. 31.
No. 1)
HISTORY OF AIR LAW
regularly up to the commencement of the Second World War and the result of
its work up to that time consisted in the preparation of four conventions and a
protocol which were submitted to, and opened for signature at, three subsequent
international conferences on private air law.
The Warsaw Convention, 192975
The Second International Conference on Private Air Law took place at
Warsaw from October 4 to 12, 1929. A draft convention prepared by CITEJA
for the unification of certain rules relating to international carriage by air
was submitted to the conference and, at its conclusion, opened for signature.
The Convention was a direct result of the study by CITEJA of the draft
convention on the liability of the air carrier approved at the 1925 conference
and of the supplementary questions of traffic documents and liability in the
case of non-performance of international carriage. Thirty-three States were
represented at the conference and the resulting convention has been widely
accepted.
The convention applies to the international transportation of persons,
baggage and goods performed by aircraft for remuneration or hire, as well as
to gratuitous transportation by aircraft performed by an air transportation
enterprise. 76 International transportation means transportation in which the
place of departure and place of destination are situated within the territories
of two High Contracting Parties or within the territory of one Contracting
Party if there is an agreed stopping place within the territory of another power,
whether a contracting party or not. 77 The carrier is required to issue tickets
for the transportation of passengers, and baggage, other than small objects of
which the passenger takes charge himself. A carrier of goods may require the
consignor to make out and hand over a “waybill”, i.e., an air consignment
note. Similarly, the consignor may require the carrier to accept this document. 7″
The carrier is liable to pay all provable damages up to a limit of 125,000 French
gold francs 79 in the event of the death of or bodily injury suffered by a passenger
if the accident causing the death or injury took place on board the aircraft or
in the course of any of the operations of embarking or disembarking. s0 Similar-
ly, the carrier is liable up to a limit of 250 gold francs per kilogram in the case
of checked baggage and goods, 5,000 gold francs in the case of objects of which
the passenger takes charge himself 79 in the event of the destruction, loss of, or
damage to these goods, if the occurrence causing the damage took place during
75See Gocdhuis, National Air Legirlations and the Warsaw Convention; The Hague (Nijhcf, 1937;’.
” 8Arc. 1(1).
“7Art. 1(2); see Grein r. Imperial Airzsays [1937 1 KB 50; [1936] ALLER 125,8; ,19361 USAvR, 2 1.
IsSee Arts. 3-16 inclusive which contain detailed provisions as to the form and legal effect of these
transportation documents.
“OArt. 22.
0Art. 17.
McGILL LAW JOURNAL
[Vol. 7
the transportation by air which comprises the period during which the goods
are in the charge of the carrier.8″ The carrier is also liable for damage occasioned
by delay in the transportation by air of passengers, baggage and goods.,, It
would seem that the effect of these provisions is to create a presumption of
liability against the carrier when loss or damage occurs, the injured party not
having to show negligence or fault of any kind.”‘ Certain defences are open to
the carrier however. He is not liable if he can prove that he and his agents have
taken all necessary measures to avoid the damage or that it was impossible for
him or them to take such measures.”‘ Further, in the case of the transportation
of goods and baggage, he will not be liable if he proves that the damage was
occasioned by an error in piloting, in the handling of the aircraft or in naviga-
tion, and that in all other respects he and his agents have taken all necessary
measures to avoid the damage. s Again, if the carrier proves that damage was
caused wholly, or in part, by the negligence of the injured person, he may be
exonerated wholly or partly from his liability.8 ‘ On the other hand, if the
damage is caused by the wilful misconduct 5 of the carrier or his agents, he
cannot avail himself of the provisions of the convention excluding or limiting
his liability.” An action must be brought in the territory of one of the
contracting parties, either before the court of the carrier’s domicile or of his
principal place of business or where he has a place of business through which
the contract was made or before the court at the place of destination.8 7
This convention has been ratified by between fifty-five and sixty States up
to the present time and most of them have incorporated its provisions into their
national laws.” s It was the most widely accepted convention drafted by
CITEJA on private air law. The Legal Committee of ICAO prepared a protocol
to the Warsaw Convention, which was signed at the Hague in 1955, and which
introduced some important amendments.
The Rome Conference, 1933
The Third International Conference on Private Air Law was held at Rome
from May 15 to 29, 1933. Two draft conventions prepared by the CITEJA
were examined and, after amendment, were opened for signature at the
conclusion of the conference. The first convention relates to the precautionary
attachment of aircraft. “Precautionary attachment” is defined as every act
whereby an aircraft is arrested in pursuit of a private interest by the agency of
81Art. 18.
uArt. 19.
b3Art. 20.
‘Art. 21.
‘”..Dol ou faute… 6quivalante an dol” in the French text.
“Ar:. 25.
“Arr. 28.
‘E.r, Caraie b) Air Act, 1932, 22 and 23 Geo. 5, c. 36, in U.K.
No. 1]
HISTORY OF AIR LAW
judicial or public authorities on behalf of a creditor or the owner or the holder
of a lien on the aircraft.8 9 Aircraft exclusively employed in state service,
aircraft actually in service on a regular line of transport, including essential
reserve aircraft, and every other aircraft appropriated to the carriage of goods
or passengers for reward where the aircraft is ready to depart are immune from
precautionary attachment.9 0 Where attachment is permitted or exemption is
not claimed, the giving of sufficient security shall give a right to immediate
release.9 1 Where wrongful attachment occurs, there is liability according to
the law of the forum.2” The convention has no application where an aircraft
is attached either in cases of insolvency or breach of customs, penal or police
regulations,93 or in the case of an arrest by an owner dispossessed by an un-
lawful act,94 or in the case of excution of an immediately enforceable judgment.9 5
The second convention adopted at the conference was that for the Unification
of Certain Rules Relating to Damages Caused by Aircraft to Third Parties on the
Surface. While the Warsaw Convention relates to the liability of the carrier
where there is a contractual relationship between the passenger and the carrier,
this convention relates to liability of the carrier to persons with whom he
has no contractual relationship. It is based upon the principle of absolute but
limited liability, with the right to a defence of contributory negligence. The
operator of an aircraft is liable on proof by the injured person that damage
exists and is attributable to the aircraft. 96 The operator is any person who has
the aircraft at his disposal and makes use of it on his own account.97 The
convention applies to all cases where damage occurs in the territory of one
contracting State by an aircraft registered in the territory of another contracting
State.98 Liability is limited to 250 francs for each kilogramme of the weight of
the aircraft but this limit must not be less than 600,000 francs and not more
than 2,000,000.11 As under the Warsaw Convention, liability is unlimited if
the damage is due to the gross negligence or wilful misconduct of the operator
and his agents, except where he proves negligence in pilotage, handling or
navigation of the aircraft or where he proves that he personally has taken all
possible measures to prevent the damage. 100 Originally, the CITEJA intended
the convention to end there, but several members refused to advise their
Governments to accept it unless the convention should be completed by
I.Art. 3 (1).
“Art. 4 (1_.
“-Art. 6 (1-.
‘Art. 7.
“Art. 3 (2).
MsArt. 2 (1).
“Art. 1.
17Art. 4.
” -%r-. 20 0.”
‘!Art. 8 (V.
‘0 Arr 14 a’.
MCGILL LAW JOURNAL
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guarantees on behalf of their citizens. Thus, provisions for compulsory insurance
are included. Every aircraft registered in the territory of a contracting State
must be insured when flying over the territory of another party to the
convention.1 0 The sanction in the event of non-insurance is unlimited liability.
A guarantee or security in the form of a deposit with a State institution or a
bank is permitted instead of insurance. 10′ The amount of the deposit or guarantee
must equal the operator’s liability in respect of the aircraft concerned and there
must be an official certificate of insurance or guarantee on board the aircraft. 02
The claimant may proceed in the courts of the country where the operator
has his ordinary place of residence or in the courts of the country where the
damage was caused.10 3 Proceedings must be commenced within one year of the
date of the damage.
Thirteen States have ratified the Precautionary Attachment Convention.
Only six have ratified the Third Party Convention. There are various reasons
for this. The United Kingdom, for example, would not ratify it because the
limit of liability in money was considered too low. Other States refused to
ratify because they did not agree with the principle of absolute liability. It has
now been revised and modified by a convention signed at Rome in 1952.
Article 29 of the new convention states that upon its entry into force it will
supersede the 1933 convention as between contracting Parties who have also
ratified the latter convention.
The Brussels Conference, 1938104
The Fourth International Conference on Private Air Law took place in
Brussels from September 19 to 30, 1938. Submitted to the conference were two
draft conventions and certain recommendations on aviation insurance which
had been prepared by CITEJA.
It is only necessary to consider very briefly the two draft conventions. The
first, after much amendment, was signed by fifteen States, none of which have
as yet ratified it. It has to do with the assistance and salvage of aircraft or by
aircraft at sea. If the law comes into force, it will apply to all parties when
either the ship or aircraft rendering salvage or the ship or aircraft salvaged
is registered in the territory of one of the contracting Stares. 10 The aircraft
commander is bound to give help to any person in danger of being lost at sea
if he can do so without seriously hazarding the aircraft, crew or passengers.106
The master of a vessel is in a similar position.10 The obligation only arises
‘0Arr. 12.
102Art. 13.
‘3Art. 16.
1’1Latchford, Bruijses Air Lau Conieroce, (1939) 10J.Air L. and Corn., 147.
‘MArt. 17.
16Art. 2 (1).
17Art. 2 (2.
HISTORY OF AIR LAW
No. i]
when the aircraft or ship is on voyage or ready to depart. 10 The convention
for
contains provisions relating to limitation of liability, remuneration
salvaging ships or aircraft, and limitation of actions, to mention but a few.
The ICAO Legal Committee has made a study of the convention to ascertain
the reasons for non-ratification and to make recommendations concerning its
revision, but due to lack of interest among States, discussions have been
discontinued.
The second draft convention on aerial collisions was not even adopted by
,the conference. The main stumbling block was the proposal that liability
should be based on fault and that, where both aircraft were to blame, liability
should be divided in proportion to the degree of fault. In air collisions there
will be, more often than not, no evidence on which apportionment of fault could
be based. The subject of this convention is now being studied by the ICAO
Legal Committee with the purpose of preparing a more acceptable draft
convention on collision.
In addition to consideration of the above two conventions, the conference
adopted an insurance protocol to the convention of Rome. Difficulties had
arisen at the previous private air law conference as to whether or not the
insurance provided for in the Rome Convention should be of an unconditional
nature and whether or not the insurer should be permitted certain defences
against the payment of insurance claims. The protocol, which forms an integral
part of the Rome Convention, 109 allows the insurer to avoid liability under the
policy in respect of the convention liability only on certain grounds, viz. that
the damage occurred after the termination of the insurance, that the damage
occurred outside the -territorial limits of the contract of insurance and that the
damage was caused by international armed conflict or civil disorders)’ 0 State-
ments in the certificate of insurance or in the aircraft documents in respect of
the duration and territorial limits of the insurance take precedence over the
policy where there is a discrepancy between the two.”‘
This conference marked the end of a series. CITEJA met once more in
January 1939, before the outbreak of the Second World War interrupted its
work on the gradual unification of regulations governing private air law.
After the War the commission ceased to exist following the creation of the Legal
Committee of ICAO, which deals with problems of both public and private
air law.
International Air Traffic Association”12
No outline of air law’ between the two world wars would be complete
without mention of the International Air Traffic Association. This body was
108Art. 2 (4).
209Arr. 2(1).
“‘0Art. 1.
1’See Cohen, IATA, the Fire Three Dmcades (Montreal, 1949).
McGILL LAW JOURNAL
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formed at the Hague on August 25, 1919, the first year of domestic and inter-
national air service. It was and is an association of airline operators. Six
companies were represented at the Hague meeting; two only had commenced
operations, three others had just been organized and one was in process of
formation. The airlines had formed IATA “with a view to cooperate to mutual
advantage in preparing and organizing international aerial trafllc”. The idea
was to establish unity in the operation of air routes. IATA was to be non-
political and its members were to be entirely autonomous. By 1929, the six
original members had been increased to twenty-three, and on the eve of the
Second World War there were thirty members. At each semi-annual meeting
of IATA, every airline would submit reports which resulted in the general
exchange of technical and commercial information, the admission of statistics
and the basis for co-ordination of schedules and timetables. As the organization
became larger and busier, it became necessary to establish committees to study
and prepare reports. By 1939, there were six of them: the Legal, Postal, Radio-
telegraphic, Cash Examination, Combined Transport 13 and Unification of
Documents’ 4 Committees. Legal problems faced by IATA involved the difficult
question of liability. Even after the Warsaw Convention, it was necessary to
study constantly its interpretation by the courts of the contracting states. It
was also necessary to formulate IATA policy towards new conventions govern-
ing other phases of air transport which were being drafted by CITEJA. It was
IATA, for example, which was responsible for the insertion of a definite limita-
tion of liability among the provisions of the Rome Convention. On the out-
break of war, IATA was in the process of studying CITEJA’s draft conventions
on salvage, aerial collisions, the legal status of operating personnel and of
proposals for treaties on registration and mortgage of aircraft, and the legal
status of the aircraft commander.
IATA ceased to function officially during the Second World War. It was
in 1944 under the name of the International Air
re.uscitated at Chicago
Transport Association.
This concludes the outline of air law between the world wars. The advance
had been considerable. Three conventions on public air law and four on private
air law had been signed. The aviation industry was organized and fast becoming
the most legally regulated industry in the world. There was a long way still
to go, however, but mankind had to wait five years before any further progress
could be attempted.
pi”D.txared in 1937.
‘Mt-.-d with Traffic Committee in 1937.
