AVIATION LAW BY HARSHITA JAIN @LEXCLIQ

HISTORY

In the last half of the 18th century humanity encountered the primary human flight –only years before the French Revolution and therefore the American war of autonomy. The hot air balloon developed by brothers Josef-Michel and Etienne-Jacques Montgolfier took off in Annonay on 4 June 1783, in Versailles on 19 September 1783 and in Paris on 21 November 1783 with a human crew. That is by all accounts absolutely the first genuine hint of air law ever a restriction planned for ensuring the security of individuals and property on the bottom .

On 25 July, 1909, a French pilot, Bleriot crossed English Channel between Les Barraques, France, and Dover, England–a distance of 38 km flown during a short time. His airplane, which he assisted with manufacturing, was fueled by a 25-strength three-chamber motor. No legal actions were taken to approve the flight and its landing in an unfamiliar region and Bleriot even didn’t convey his French visa or another identification paper.

The activity of states at the start of the 20th century is convincingly demonstrated by the shooting down of foreign military balloons suspected to possess crossed the national border for “espionage” purposes ( e.g. taking photos of fortifications, etc.) – the primacy of tsarist Russia in defending against “intruders” by shooting down German military balloons in 1904 and 1910.

Chicago Convention,1944

The context of origin and thus the causes of any law’s evolution help as an example the social and cultural framework and can assist in better understanding and interpretation of the principles . However, during a contemporary treatise of air law these issues hardly deserve quite quick comment. Law governing couldn’t have existed before the humans began to find out the art of aerial navigation and before the practice of that art created social relations and possible social conflicts of interests that required legal regulation.

On 11 September, 1944, the President of the us invited representatives of 54 nations to satisfy at a world Civil Aviation Conference in Chicago from 1 November to 7 December, 1944 to “make preparations for the immediate establishment of provisional air routes and services” and to “discuss the principles and methods to be adopted within the adoption of a replacement aviation convention.” It thus belongs to the foremost generally accepted multilateral law-making conventions. The Convention could also be a monumental piece of international law-making drafted with great foresight.

The Chicago Convention is a constituent instrument of the International Civil Aviation Organization (ICAO); the “relevant rules of the organization” mentioned in Article 5 of the Vienna Convention would be those pertaining to the procedure for the amendment of the Convention through the mechanism of the ICAO Assembly under its applicable rules. The general rules of the law of treaties, including questions of interpretation, apply to the Chicago Convention.

It is noteworthy that the Chicago Convention is nearly symmetrically divided into two separate segments: the primary (roughly Article 1 to 42, PART I., Chapters I to VI) represents an exhaustive codification and unification of public law of nations that replaces all previous sources of international law–the Paris Convention of 1919 and therefore the Havana Convention of 1928. The second part (roughly Articles 43 to 96–PARTS II, III and IV, Chapters VII to XXII) represents a constitutional instrument of the International Civil Aviation Organization (ICAO)–a charter under which the organization was created and under which it’s obliged to act.

The provisions of the Convention are mandatory since there’s no provision permitting any reservations to the Convention. The mandatory nature of the Convention is underlined by Article 82 during which contracting States committed themselves to abrogate any in consistent obligations and understandings and to not enter any such obligations or understandings.

CONCLUSION

The world has changed drastically in some ways – strategic, technological, social, and economic – over the last quite sixty years. Many new States also appeared on the planet map that by 1944 had not existed as independent entities. For over forty years, conflict has characterized the relationships round the world and its end presents many new opportunities and challenges. The aviation technology progressed from the DC-3 – the civil aviation workhorse by 1944 – to several-generation jet aircraft that followed one another at a rapid rate, including the large-capacity aircraft capable of reaching any point on earth without refueling; supersonic flight was tested as theoretically feasible, but not yet economical as a way of mass transport.

The world progresses towards globalized economy during which the national borders and therefore the nationality marks of aircraft would have only diminishing relevance. New problems and challenges have arisen that would not before seen quite seventy years ago–criminal acts against the security of civil aviation, growing concern for the environmental protection, application of space technology for traffic management, growing need for technical cooperation or assistance to assure global safety of civil aviation, electronic processing that finds its application in airline management processes and also could change the working methods of the ICAO Secretariat, etc.

It may be argued that there’s no need for any general review of the Convention, because it has served ICAO well for nearly 70 years and may handle any new developments or contingencies flexibly through interpretation. On the opposite hand, it are often argued that “creative” interpretation may go against the Convention’s original meaning, misrepresent the reach of the States’ consensus or cause a lack of the legal certainty that it’s supported by all contracting states.

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