International Air Law Trends

Author(s): Howard S. Le Roy

Source: Virginia Law Review, Vol. 31, No. 2, Symposium: Aviation Law Looks to the Future
(Mar., 1945), pp. 448-456
Published by: Virginia Law Review
Stable URL: https://www.jstor.org/stable/1068714
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 448 VIRGINIA LAW REVIEW [Vol. 31

INTERNATIONAL AIR LAW TRENDS

THE impact of heavier-than-air flight on our international

economy in four decades is significant of future changes.
Perhaps no physical art has evoked an overall legal pattern in
a similar space of time. Furthermore, this pattern has evolved
on all political fronts: local, national and international.
The course or sequence of its evolution on each of these po-
litical levels has been strikingly similar in passing through legis-
lative, administrative and adjudicative or decisional phases.
True, not all the phases have developed equally on all the political
levels.
A patent parallelism has sprung up between the fast moving
art and the growing volume of regulatory law by which the in-
creasing utility of the art is insured. Speed has been charac-
teristic of each. As the art with mounting technical progress
pushed out beyond national boundaries, so guiding legal princi-
ples were projected into the international area, even before in-
ternational flight became a reality. In point of time both of
these international trends are moving forward rapidly into
broader fields of activity. They will be accelerating and expand-
ing in range and tempo in the foreseeable future.
What are some of the trends of international aeronautical
law as viewed with respect to legislative, administrative and de-
cisional phases?

Legislative Phase

The beginnings of the legislative phase of international air

law antedated any substantial international development of the
art. Following the epic flight of the Wright Brothers on the
sand dunes at Kitty Hawk in 1903 the rest of that decade was
devoted to research and exploitation of the new art sufficient to
demonstrate that it did possess promise of social, economic and
military utility. Before the opening of the next decade certain
pioneering jurists, anticipating the future development of the

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 1945] INTERN ATIONAL AIR LAW TRENDS 449

art, begun to meet in annual international conferences for the

purpose of formulating a code embodying the basic regulatory
principles for the new art.'
The early efforts toward international aeronautical legisla-
tion in the years prior to World War I were retarded by the con-
flict of two divergent schools of thought on the basic issue of
aerial jurisdiction. Fauchille and other French jurists espoused
the doctrine of Freedom of the Air. A British group supported
the doctrine of national sovereignty in superincumbent air space.2
The impact of World War I greatly advanced the aeronautic
art and turned the trend of international aeronautic law. This
was reflected in the Paris Convention of 1919,3 which basic piece
of international public aeronautical legislation by Article 1 es-
tablished the doctrine of national sovereignty over superincum-
bent air space. The Convention was also implemented with
seven appendices dealing in detail with meteorology and other
essential auxiliary services.
This Convention, although signed by the United States
and submitted to the Senate, was never ratified. Of the
thirty-three nations, parties to the Paris Convention in 1938,
only four, Argentina, Canada, Peru and Uruguay, were in this
hemisphere. Such development gave the Paris Convention a
regional character and thus served to separate most of this hem-
isphere from the rest of the world in respect to international
aeronautical regulation.
The Ibero-American Convention of Madrid of 19264 proved
an abortive effort to bridge the breach. Its provisions were al-
most identical with those of the Paris Convention. Its signifi-
cance now is largely academic and historic.
It soon became clear that the rapid advance of the art in the

1. TOMBS, INTERNATIONAL ORGANIZATION IN EUROPEAN AIR TRANSPORT

(1936) 4; IDE, INTERNATIONAL AERONAUTIC ORGANIZATION AND THE CON-
TROi, Or AIR NAVIGATION (1938) 11; Le Roy, International Law of the Air
in Time of Peace in PROCEEDINGS OF THE THIRTY-SECOND ANNUAL MEETING
oF THE AMERICAN SOCIETY Of INTERNATIONAIL LAW (1938); Le Roy, Aero-
nautical and Radio Law in NOTES AND PAPERS (1939) 65.
2. TOMBS, op. cit. supra note 1 at 5.
3. Convention for the Regulation of Aerial Navigation, Paris, Oct. 13,
1919.
4. TOMBS, op. cit. supra note I at 50, 51, 53, 200.

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 450 VIRGINIA LAW REVIEW [Vol. 31

western hemisphere could not continue unhampered without

some international regulatory regime including most of the Pan-
American countries. Out of this situation evolved a further
change of trend in the form of the Havana Commercial Avia-
tion Convention of Feb. 20, 1898.5 This international legisla-
tive Act was by its terms limited to Pan-American membership.
Thus, it also contributed to the trend to regionalism.
The Havana Convention, while incorporating many of the
general principles of the Paris Convention contains certain note-
worthy differences. It did not establish a special administrative
agency to carry out the provisions of the Convention. It did vest
in the Pan-American Union certain minor administrative func-
tions. It is also not implemented by any series of technical an-
nexes. Finally, the Havana Convention differs from the Paris
Convention by the extension of its provisions to certain ques-
tions of private air law.6
In explanation of what might be considered as certain regula-
tory inadequacies of the Havana Convention, Tombs makes the
following observation:

"It is important to bear in mind that the essential purpose of

the Pan-American Convention was to facilitate commercial
air transport between North America, the West Indies,
Central and South America, this transport, in fact, being
chiefly effected by one American company, as contrasted
with the numerous competing companies in Europe, subsi-
dized by states which are parties to the Paris Convention.,,7

The future trend of international aeronautical law in the west-

ern hemisphere may be affected by:

(1) The extent to which the administrative deficiencies of the

Havana Convention may be cured and
(2) The extent to which a single American company domi-
nating Inter-American air transport may continue to pre-
vent those deficiencies from becoming more exigent.

5. Commercial Aviation Between the United States of America and Other

American, Republics, Treaty Series No. 840.
6. Commercial Aviation, op. cit. supra note 5, Art. 25, rights and duties
of commanding officer of an aircraft, and Art. 28, reparation for damages
to persons and property in subjacent territory.
7. TOMBS, op. cit. supra note 1 at 50.

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1945] INTERNATIONAL AIR LAW TRENDS 451

In relation to the omission of essential technical annexes from

the Havana Convention significance may attach to the resolution
adopted at the Seventh International Conference of American
States held at Montevideo in December 1933. It recommended
a commission of experts to study the means of accelerating Inter-
American aviation by the establishment of a continuous line of
radio stations, beacons, and aerodromes, along the line of exist-
ing routes and others that might be considered desirable.8 The
resolution read in part:

"That within the shortest possible time and before the Com-
mercial Conference of Buenos Aires * * *" 9

Thus the Havana Convention was supplemented by an Air

Transit Convention consisting of four articles, concluded at
Buenos Aires June 19, 1935, by countries represented at the Pan-
American Commercial Conference.10 The effect of the Air
Transit Convention was to facilitate Inter-American air trans-
port by relieving it from the burden of special national charges
other than for airport services. The United States was not a
party to the Convention.
This Conference also recommended holding an Inter-Ameri-
can Technical Aviation Conference, and it later convened at
Lima, Peru, in September 1937, with twelve nations represented.
After ten days of deliberation, the Conference approved thirty-
two motions, recommendations and resolutions.
In further evidence of the inadequacy of the Havana aeronau-
tical regime was the provision for the establishment of the Pan-
American Aeronautical Commission (C. A. P. A.)." This
Commission was to be composed of jurists and aviation experts.
The first of its declared purposes was: "The gradual and pro-
gressive unification and codification of international public and
private air law". It was provided that each government would

8. TOMBS, op. cit. supra note 1 at 51.

9. International Conferences of American States, First Supplement p. 77.
10. TOMBS, op. cit. supra note 1 at 51N; IDE, op. cit. supra note 1 at 19;
for text, see Convention Relating to the Transit of Airplanes, Report of the
Delegates of the U. S. Pan American Commercial Conference, Buenos Aires,
1935, Appendix 11, pp. 88-89.
11. IDP, op. cit. supra note 1 at 20.

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 452 VIRGINIA LAW REVIEW [Vol. 31

create a national commission of professors, jurists and aviation

experts and that the first session would be held at Bogota within
twelve months after at least seven national commissions had been
organized.
Turning to the field of Private International Air Law, the
Havana regime has failed to produce international legislation
comparable to that springing from the Paris regime in such in-
ternational acts as the Warsaw 12 and Rome 13 Conventions.
Another significant trend in the international legislative field
is the tendency to broaden out into cognate subject matters.
Typical of the trend is the International Sanitary Convention
for Aerial Navigation.14 This piece of international aeronau-
tical legislation arose out of collaboration between the Interna-
tional Office of Public Hygiene and C. I. N. A., the administra-
tive agency under the Paris Convention. Its membership in-
cludes not only nations under the European regime but also Bo-
livia, Brazil, Chile and the United States, thus tending to break
down the barrier of regionalism.'5
In addition to the multilateral regional agreement, there has
been a marked trend toward bilateral agreements. Some of
these are between signatories and non-signatories of the multi-
lateral agreements. Some are general in character and several
relate to the establishment and operation of airlines. Some are
signed by governments, while others are between administrations
and transport companies. Space does not permit of a detailed
consideration of this phase of legislative activity.

Administrative Phase

The efficacy of international aeronautical legislation depends

largely on its implementation by adequate administrative agen-
cies. Particularly is this essential to insure maximum, social,

12. Treaty Series 876.

13. For translation of Convention, see Dept. of State Treaty Information
Bulletin 47 (Aug. 1933) 27; Latchford, Private International Air Law, Dept.
of State Bulletin (1945) 11.
14. U. S. Treas. Dept., Supplement No. 120 to Pub. Health Reports, U,
S. Gov't Printing Office, Washington, 1936; for text, see also Revue Aero..
nautique Internationale No. 4, Paris, June 1932, pp. 249-255.
15. TOMBS, op. cit. supra note 1 at 167.

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19451 INTERNATIONAL AIR LAW TRENDS 453

and economic utility by effective control of

safety. Accordingly, each of the three international aeronautical
Conventions have provided for administrative functions.
The Paris Convention 16 provided for the International Com-
mission for Air Navigation (C. I. N. A.) and defined its func-
tions which are administrative, legislative, executive and judi-
cial. C. I. N. A. is also an advisory body and a center of docu-
mentation.
The commission is under the direction of the League of Na-
tions, but in practice it is autonomous. The trend has been to
develop C. I. N. A. as an agency fully integrated with all the
organizations having a direct or indirect interest in aviation.
One of its important powers is that to amend by a majority vot
the technical regulations annexed to the Convention. This
power has been frequently exercised and has contributed much
to the functional success of the European regime. The Ibero-
American Convention, which never became operative, provided
for an administrative agency called C. I. A. N. A.'7
The Havana Convention departed from the trend established
by the two preceding conventions by failing to set up its own ad-
ministrative agency. It does vest certain minor administrative
functions in the Pan-American Union. The powers so lodged
in the Union fail to constitute an adequate administrative pat-
tern. Recognition of the administrative deficiencies under this
convention was delayed for several years, as Tombs explains,
by the non-competitive position of the American company
dominating Inter-American Air Transport. Remedies for these
deficiencies finally provided by the Lima conference of 1937
have been the subject of international agreement and mark a
sharp turn in trend on the administrative side.
The performance of this agreement and the establishment of
C. A. P. A. have marked time for some eight years. During
this time, world conditions have developed calling for the fullest
measure of hemispheric solidarity."8
Approximately twice the required number of nations have

16. Article 34.

17. TOMBS, op. cit. supra note 1 at XIX.
18. IDE, op. cit. supra note I at 18.

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 454 VIRGINIA LAW REVIEW [Vol. 31

named their national panels, and the United States has named
two successive national panels. The Bustamante Resolution at
the Havana Conference of the Inter-American Bar Association
in 1941 and a second resolution at the Mexico City Conference
in 1944 urged the early establishment of C. A. P. A. In spite
of this no action has been taken and no reason has been given to
explain the delay.
The Chicago World Air Conference in the Air Navigation
Convention pledges each signatory power to denounce the Paris
Convention as well as the Havana Convention.19 Is it to be im-
plied that C. I. N. A. and C. A. P. A. are to be jettisoned?
This does not appear to be the fate in store for C. I. T. E. I. A.
set up by the First International Conference on Private Air Law.
An encouraging trend appeared in the measure of cooperation
and collaboration between the administrative agencies of the
European and American regimes. In 1930 C. I. N. A. entered
into relations with the Pan-American Union.21
Significant in the field of International Private Air Law is the
increasing membership in C. I. T. E. J. A. of both European
and American countries. C. I. T. E. J. A. when first organized
consisted of twenty-eight countries of which only six were from
the western hemisphere. In 1933 C. I. T. E. J. A. had thirty
members of which seven, including the United States, were from
the Americas.22
Decisional Phase

Following the enactment of international aeronautical le

tion and the establishment of administrative agencies, the art
entered a period of growing activity involving the interpretation
of provisions of treaties, statutes and regulations and the de-
termination of a wide variety of disputes. These adjudications
and rulings are made by various arbitral, judicial or administra-
tive agencies.
The Havana Convention provides for arbitration of disagree-
ments arising out of the Convention between two contracting

19. Final Act, Part I, Art. 80.

20. For Post War C. I. T. E. J. A. Program, see Latchford, op. cit. su-
pra note 13.
21. TomBs, op. cit. supra note 1 at 99.
22. TOMBS, op. cit. supra note 1 at 126.

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 1945] INTERNATIONAL AIR LAW TRENDS 455

states. The arbitral procedure specifies governments as arbi-

trators.23 This procedure and particularly that part of it call-
ing for the drawing of lots by the Governing Board of the Pan-
American Union in the event of disagreement among the gov-
ernmental arbitrators, appears so cumbersome as to militate
against recourse to adjudication by this method. Such an un-
usual arbitral method may have been due to the traditional re-
luctance of the Pan-American countries to agree to any form
of compulsory arbitration.
A range of simpler arbitral procedures is found in some of
the bilateral conventions. Some make no provision for settle-
ment of disputes other than through the diplomatic channel. In
several cases the way would be open to settlement under any ar-
bitration treaties between the two countries. In other instances
a method of adjudication is available under the General Act for
the Pacific Settlement of International Disputes. Decisions are
also made from time to time by national courts 24 or by national
and state administrative agencies.
The commercial development of international aviation is so
recent and adjudications thereunder are so scattered that there
is no adequate basis on which to project any very definite trend.
It is possible that the national courts and administrative agencies
will constitute the more prolific sources of international aeronau-
tical decisional law. Decisions from these sources may tend to
be less uniform than decisions from international arbitral sources.

23. Article XXXVI: "In case of disagreement between two contracting

states regarding the interpretation or execution of the present convention
the question shall, on the request of one of the governments in, disagreement,
be submitted to arbitration as hereinafter provided. Each of the governments
involved in the disagreement shall choose another government not interested
in the question at issue and the government so chosen shall arbitrate the dis-
pute. In the event the two arbitrators cannot reach an agreement they shall
appoint another disinterested government as additional arbitrator. If the
two arbitrators cannot agree upon the choice of this third government, each
arbitrator shall propose a government not interested in the dispute and lots
shall be drawn between the two governments proposed. The drawing shall
devolve upon the Governing Board of the Pan American Union.
"The decision of the arbitrators shall be by majority vote."
24. Grein v. Imperial Airways, Limited, 1936 U. S. Av. R. 189, 7 Jour-
nal of Air Law 128 (1935), a decision by British courts arising out of the
Warsaw Convention; Phillipson v. Imperial Airways, Ltd. (1937) 157 K.
B. 112, 8 Air Law Rev. 357.

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 456 VIRGINIA LAW REVIEW [VoL 31

Conclusions

From the above brief survey it would appear that the broad
revolutionary trends of international aeronautical law may be
brought into sharper focus by dividing the thirty-five year period
(1910-1945) into three periods.
In the period from 1910-1920 the divergent views of the pio-
neering jurists as to basic jurisdictional principles were unified
by the impact of World War I. The result was the broad regu-
latory regime set up by the Paris Convention. This integrated
system contemplated a world regulatory unity.
In the period from 1920 to 1940 events produced a change in
trend toward regionalism. Factors contributing to this
were: the failure of the Paris Air Navigation Convention of
1919 to be ratified generally by the nations of the western hem-
isphere; the failure of the Ibero-American Convention of 1926
to stem the strong tide to regionalism; the frank recognition of
regionalism by the inadequate Havana Convention of 1928; and
the final and futile effort of the Resolution of the Lima Confer-
ence of 1937 to implement the Havana Convention on the admin-
istrative side.
In the period from 1940 to date the trend has turned away
from regionalism and back toward the unity of the Paris Con-
vention. The best evidence of the nature and scope of this re-
versal in trend is the outstanding work of the recent Chicago
Air Conference.25 The achievements of this conference consti-
tute a fully integrated international regulatory system for the
aviation art. It is well balanced, flexible and fully abreast of the
fast moving art.
For some time past it has been clear that World XWar II will
give an impetus to international aviation comparable to that ex-
erted upon national aviation following World War I. The tre-
mendous pressures building up in the international field with the
phenomenal postwar development of the art will ensure general
and early adoption of the sound principles of the Chicago avia-
tion regime. Howard S. Le Roy.
WASHINGTrON, D. C.

25. Walstrom, The Chicago Air Conference, Dept. of State Bulletin 843-
846 (1944).

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