Centre for Advanced Legal Studies and Research, (CALSAR), Thiruvananthapuram


3rd Sem LLM, Kerala Law Academy Law College

This article provides an overview of aviation law as it has become more important in the
modern world. Aviation law or air law consist of the rules governing the use of airspace and
the benefits for the socio-economic growth of nations all over the world. Air law is debatable and uncertain; however, it has been utilized longer than a century. The area of air law covers a narrower interpretation. Air law isn’t a self ruling branch in the arrangement of law, but instead a choice and gathering of rules from various parts of law which are significant for the determination for a deliberate order, investigation, proficient specialization and education purposes.

Aviation holds an important place for the country’s economic growth. It connects
international cultures through trade and commerce as well as through tourism. After
Globalization there has been drastic change that has occurred in the field of the aviation
industry which increased an imminent need for a legal framework that covers every aspect of
aviation. Thus the concept of aviation law or air law has emerged. The literal meaning of
aviation law is rules governing aircraft activities. Aviation law operates on the legal and
business concerns associated with the operation of air transportation itself.

The first attempt to set air law was made around the year of 1910. When the German
air balloons trespassed over French territory, the French Government initiated an agreement to
resolve the problem between both German and French Governments. The Paris Conference of
1910 was in favor of the sovereignty of states in the space above their territories.
With respect to Indian aviation history, the first commercial aircraft took off in 1911 from
Allahabad to Naini and the first international commercial aircraft took off in 1912 from Delhi
to Karachi, which was operated by Imperial Airways. By 1947, India had nine (9) air transport
businesses that carried both freight and people.

Aviation law is the branch of law that concerns flight, air travel, associated legal and
business concerns. The purpose and need for aviation law occurs from the globalization and
expanding nature of human interaction as we move from the seas to the air and beyond our
atmosphere. Air law may be defined as ” the body of rules governing the use of airspace and
its benefits for aviation, general public and nations of the world. ” Air law is concerned with
the smooth management of global airspace.
Hence the importance of regulating the aviation section was raised. The Convention on
International Civil Aviation, also known as the Chicago Convention, established the
International Civil Aviation Organization (ICAO), a specialized agency of the United Nations
charged with coordinating international air travel. The Convention establishes rules of airspace,
aircraft registration, safety, security, sustainability and details regarding the rights of the
signatories in relation to air travel.

Air law has taken on its international character and has emerged on an international
plane, wherein the paris convention was concluded in 1919 that is, in the first flight between
Paris and London. Due to the rapid developments in aviation and with the lawmakers
attempting to keep pace, custom has largely been bypassed as a source of law, but the result is
that Air Law consists mainly of written law. Treaty Law encompasses all international treaties
in which multilateral conventions are the primary source of air law. As a matter of fact, subject
participants like the state, the owner, the operator, the passengers, the owner of the on-board
goods, the mortgage holders etc, their rights are properly safeguarded by the achievement of
the most important elements of Air Law. The implementing measures are found in
international agreements and conventions. Another classification which is relevant
for Air Law are the bilateral instruments such as national Law, the contracts between states
and airline companies or contracts between airlines companies, and general principles of
International Law.

International Custom constitutes an important source of international law that is applicable in
the absence of an agreement. In the view of the development of treaty laws, the application of
International Custom is not of much use in the domain of aviation as time goes by litigation
between national and international law, or between private and public law which is applicable
in Air Law.

Private International Law, in its context means the series of rules pertaining to the
relations between private persons involved in the operation and use of aircraft, whereas Public
International Law is the corpus of legal norms pertaining to the relations involving states and
international organizations in respect of those activities in aviation and discusses problems of
political, technical, economical, financial, social or legal nature.

Aviation Law is one of the specialty fields in Law. General viewpoint of aviation law is
that it covers the special characteristics and demands of the aviation field. There is no
governing body that frames the air laws governing all states. Air Law is used to describe a
system of implicit and explicit agreements that puts together the nations, these agreements are
known as conventions. There are numerous conventions such as Chicago, Rome, Tokyo,
Geneva, and few more.

At the Chicago Convention, the US urged the delegates to adopt a set of aviation rights
known as freedoms of the air. Other countries, wary that the dominant US aviation industry
would monopolize world air travel, if such broad aviation rights were enacted, declined to
incorporate these rights into the Convention on International Civil Aviation. Instead, the
freedoms of the air were placed in two separate agreements called the International Air
Services Transit Agreement and the International Air Transport Agreement. These agreements
are open to any country that signs the Convention on International Civil Aviation. The five
freedoms of the air are discussed below.

  • First Freedom − The right of aircraft from State A to overfly State B without
  • landing.
  • Second Freedom − The right of aircraft from State A to land in State B for technical
  • reasons.
  • Third Freedom − The right of aircraft from State A to accept paying traffic from State A and
  • put it down in State B.
  • Fourth Freedom − The right of aircraft from State A to pick up paying traffic in State B and
  • put it down in State A.
  • Fifth Freedom − The right of aircraft from State A to take paying traffic from State B to State
  • C.

The Sub-Committee held its first plenary session in Geneva on 3 September 1956
armed with a list of the most important problems requiring an international solution. The Sub
Committee’s work was greatly lessened by its agreement to limit the scope of the study to
criminal aspects:
(1) acts which are crimes under the laws of the States of registration of the aircraft and
the law of the State in which the act occurred;
(2) acts which are crimes according to the law of one of the States mentioned

As a result of its study during its full second session at Montreal in September 1958
the Sub-Committee developed the first ICAO Draft Convention on the Legal Status of the
Aircraft focusing on the problem of crimes committed on board aircraft.

The Rome Draft was placed before the International Conference on Air Law, Tokyo,
on 20 August 1963, thus concluding decades of debates and negotiations of some of the
foremost outstanding problems in international air law.

The Tokyo Convention emerged in its present form on 14 September 1963. The
Convention entered into force on 4 December 1969 bringing closure to the efforts of ICAO on
the subject since 1950 and the realization of many of the ideals of the early pioneering jurists
present at the dawn of aviation.

The ICAO is the body of the UN and it is responsible for developing uniform air
transportation standards that apply to international flight. The ICAO is divided into three
branches. The Assembly is a representative body that meets every three years to review the
ICAO’s work, set policy, approve a budget, and select which Member States will have a seat
on the rule-making body of the ICAO, known as the Council. The Assembly is also
responsible for approving any amendments to the Chicago Convention, which are then
subject to ratification by each of the Member States.

In Conclusion, Aviation law or air law is the law of the air, wherein the regulation of aircraft as
well as air travel or tourism are briefly explained. After globalization the exploration of air
space has been increased which has led to the development of aviation industries. Hence it is
necessary to implement regulations regarding the aviation sector. The major purpose is to
govern such provisions regarding aviation law and to maintain peace and security.

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