International legal instruments before ICAO
Centuries ago, before mankind thought of the flying machine, the Latin maxim was coined: Cujus est solum ejus usque ad coelum et ad inferos. This rule means: “Whoever owns the land, it is theirs up to the sky and to the depth of the earth". The phrase is credited to Accursius, Italian Jurist in the 13th Century. The maxim may have emanated from Roman or Jewish law; the principle was firmly established in common law by the English Judge Edward Coke in 1587. However, it has been grievously misunderstood and misapplied. Whatever the true origins of this term may be, it had nothing to do with the aeronautical uses of the air space; it only defined the property rights of the owner of the land against any incursions from the owner of the neighbouring land. The maxim is connected, by its nature, with air rights and their invasion. States have always claimed and exercised territorial sovereignty in space above their surface, to the extent needed to make valid the public and private rights in space. This was laid down in the 1919 Paris Convention and reaffirmed at Chicago in 1944.
Although the first piece of air law, a police directive, was enacted in 1784 at the time of balloon flights and the first regulation for safety in air navigation was made in 1819 by Count d'Anglès, Police Prefect of the Seine Department, requiring balloons to be equipped with parachutes and prohibiting aeronautic experiments during the harvest, it is only with the technical development in aviation that air law saw its actual need for expansion. The legal framework for air law quickly transcended national boundaries with the international carriage by air. Therefore, two types of agreements were developed: the conventions of private law (concerning the relationship between private parties), the conventions of public law (involving inter-State relations). The need for uniform international law had encouraged States to the dialogue; the Second International Congress of Air Navigation held at London in 1923 urged that an international conference be called to consider matter of private as distinct from public air law. It is with the Paris International Conference in 1925 that an International Technical Committee of Legal Air Experts was established.
At the initiative of the French Government, the First International Conference on Private Air Law was convened in Paris from 27 October to 6 November 1925 to examine the question of liability of the airlines and to undertake the immense work of coding the private air law; the final protocol of this Conference asked for the creation of a special committee of experts (called Comité International Technique d'Experts Juridiques Aériens, C.I.T.E.J.A.; International Technical Committee on Aerial Legal Experts) in charge of the continuation of the work of the Conference. Seventy-seven delegates from 44 States, with observers from USA, Japan and Hungary, attended this Conference. Dr. Albert Roper, the Secretary General of the International Commission on Air Navigation (ICAN), was the Secretary of the Conference.
With its seat at Paris (37, avenue Rapp, in the building of the Aéronautique civile of the French Ministère de l’Air), the C.I.T.E.J.A. composed of experts nominated by States but acting in their personal capacity, made a considerable contribution to the codification of private air law and carried on the work between the general conferences. CITEJA held its first session at the Ministry of Foreign Affairs at Paris on 27 May 1926, with twenty-eight countries participating. Its initial working schedule covered the establishment of a program dealing with subjects pertaining to private air law to be studied by commissions of experts (in fact, the Committee was divided into four groups named Commissions with specific areas of responsibility allocated to each), preparation of texts of international conventions on legal subjects for consideration at periodic International Conferences on Private Air Law, and maintenance of the principle of the progressive elaboration of a single international code of private air law. CITEJA was created in 1926 and held sixteen sessions before its dissolution in 1947.
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Front page of the Warsaw Convention – 1929
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Attended by 65 delegates from thirty-three nations, the Second International Conference on Private Air Law met in Warsaw, Poland, from 4 to 12 October 1929; it approved the Warsaw Convention formally entitled Convention for the Unification of Certain Rules Relating to International Carriage by Air, which was signed by 23 States on 12 October 1929. This convention established the international liability for air carriers and the monetary limits for damage, delay and loss. At that time, the convention was a major contribution to the unification of international aviation law, as most airlines were government-owned and the aviation industry was in its early years struggling to compete with the rail and shipping industries. The liability limits for air carries were capped at limits that were appropriate for that era and for an infant industry. This convention became soon the widest accepted unification of air law. The convention of 1929 came into force on 13 February 1933. More information on the Warsaw Convention can be obtained by clicking on the following link: The Warsaw System on air carriers liability.
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The Third International Conference on Private Air Law met at the Accademia dei Lincei, Palazzo Corsini, Rome, Italy from 15 to 29 May 1933. This conference adopted two conventions, as follows:
1. The Convention for the Unification of Certain Rules Relating to Damage Caused by Foreign Aircraft to Third Parties on the Surface;
2. The Convention for the Unification of Certain Rules Relating to the Precautionary Arrest of Aircraft (also known under the name of Convention for the Unification of Certain Rules Relating to the Precautionary Attachment of Aircraft). Its purpose is to prevent the arrest of aircraft where the arrest would seriously interfere with state services (such as post) or disrupt commercial traffic.
Both conventions were signed on 29 May 1933 by 20 States. The purpose of these conventions was to ensure adequate compensation for persons who suffer damage caused on the surface by foreign aircraft while limiting in a reasonable manner the extent of liabilities incurred for such damage in order not to hinder the development of international air transport. More information on the Rome Convention can be obtained by clicking on the following link: The Rome Convention and its modernization.
The Fourth International Conference on Private Air Law met at the Palais des Académies, Brussels, Belgium from 19 to 30 September 1938. The conference adopted the following:
1. An Additional Protocol related to the Rome Convention for the Unification of Certain Rules Relating to Damage Caused by Foreign Aircraft to Third Parties on the Surface signed on 29 September 1938, which permitted insurers to use some basic defences. Both were superseded by the 1952 Rome Convention on the same subject.
2. The Convention for the Unification of Certain Rules Relating to the Assistance and Rescue of Aircraft or by Aircraft at Sea.
The budget for this Conference was estimated by the Belgian Government at 125,000frs.
It is interesting to note that CITEJA was an independent international body which adopted its own budget – funded by contributions from Member States. CITEJA was also responsible for appointing and determining the conditions of employment of the staff of its Secretariat. Moreover, CITEJA was in charge of adopting its work programme and convened, when it deemed necessary, plenary sessions or meetings of its various sections. Also, State representatives to CITEJA were usually chosen from among the most renowned academics.
The war interrupted further development of the international unification of private air law. What is interesting to note is that the Chicago Conference in 1944 did not envisage the dissolution of CITEJA. On the contrary, the Conference adopted a resolution requesting the various governments represented to take into consideration the possibility of holding again, as soon as possible, sessions of CITEJA interrupted due to the outbreak of the Second World War.
Accordingly, CITEJA did resume its work by holding a session in Paris in 1946 and its last working meeting in Cairo in 1947 where it recommended that a Committee on International Air Law be established within ICAO.
The 1st Session of the ICAO Assembly, held in Montreal in May 1947, adopted Resolution A1-46 creating the Legal Committee as permanent body replacing the C.I.T.E.J.A.
The Legal Committee enjoys a unique status among the other permanent bodies of ICAO as it is the only body that was neither created by the Chicago Convention nor by a decision of the Council. Also, participation in the Legal Committee is open to all ICAO Member States.
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Italy – 26 March 2003 Maximum card issued for the 400th anniversary of the Accademia dei Lincei, where the Third International Conference on Private Air Law was held in 1933. It is located at the Palazzo Corsini on the Via della Lungara in Rome, Italy. The symbol of the Academy is a lynx famed for its sharp eyes. Founded in 1603, this science academy was later renamed Accademia Nazionale dei Lincei.
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Postcard showing the Palais des Académies at Brussels, where the Fourth International Conference on Private Air Law was held in 1938.
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Italy - 29 September 1952 1st Diplomatic Conference on International Air Law held in Rome (from 9 September to 6 October 1952), which adopted a new Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, thus replacing the Convention on the same subject adopted in 1933 and amended in 1938. |
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