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AIR LAW

1. Definition of Air Space: JC Cooper defined air space as the space above the earth’s
surface in which man-made instruments whether controlled or not can be in operation
at any given time i.e the usable space. Air space is defined in terms of one or more
combinations of physical factors including velocity, gravitation, altitude, centrifugal
force and etc.
2. Different Theories of Air Space:
a. Usque ad rem theory: Prior to the world war 1, the international community
despite differences agreed on one aspect i.e the owner of the land owns the air space
over its territory to an unlimited extend. The maxim’s principles were carried
through different legal systems of nearly all nations.
b. Gravitational theory: This theory was propounded by J.Kroell who proposed that
the extension of the jurisdiction of the state should be up to the outer limit of the
earth’s gravitational attraction beyond which there is outer space. On the other
hand, it would be very difficult to locate the exact point or boundary where the
earth’s gravitational pull ceases as it reaches deep in the space and even have
courage on the moon. Therefore, the jurisdictional line if drawn on the basis of such
a theory would be as high as 1.5 million kilometres. The extension of jurisdiction
to such heights would be meaningless and highly impractical.
c. Atmosphere theory: The theory depicts that the outer space begins at the outer
limit of territorial atmosphere. The territorial atmosphere is further divided into
troposphere, stratosphere, ionosphere, and exosphere, although there is no proper
demarcation of between the layers of the outer space.
d. Aerodynamic lift theory: According to this theory, it is believed that the state
jurisdiction should be extended to heights necessary to life manned aircrafts.
According to the jurists in this school, the outer space begins where the possibility
to fly the jet planes. The upper limit may be changing due to advanced technology.
e. Biological theory: the theory proposed that the limitation of outer space continues
as long as there is possibility of human life to survive, and beyond that the outer
space starts
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3. The International Declaration Prohibiting the Discharge of Projectiles and

Explosives from Balloons, (The Hague, 29 Jul 1899) was the first concerted attempt
at codification on an international scale took place before 1910, when German balloons
repeatedly made flights above French territory.

4. The International Air Navigation Conference, Paris 1910: When the conference met
in 1910, international flight was practically unregulated. Free balloons took off from
one State and landed in another, or wherever they might drift. The questions submitted
included such matters as the distinction to be made between public and private aircraft,
nationality, navigability certificates, registration, crew competence, technical rules
applicable to departure of aircraft, and papers to be carried. convened, the tendency of
the conference did not adopt the idea of ‘freedom of the air’ but was in favour of the
sovereignty of states in the space above their territories, which was reflected on the
draft convention at the plenary session of the conference. The Conference therefore
omitted any reference to the character of right or privilege by which the aircraft of one
State might enter flight space over the lands or waters of another State.

5. Convention Relating to The Regulation of Aerial Navigation Signed At Paris,

October 13, 1919: The first passenger-carrying airline flight happened in 1913 with the
St. Petersburg-Tampa Airboat Line. Before that time, aircraft had been used to carry
mail and other cargo. With the start of World War, I in 1914, aircraft were being
operated internationally to carry not only cargo, but also as military assets. The
international use of aircraft brought up questions about air sovereignty. The arguments
over air sovereignty at the time factored into one of two main viewpoints: either no
state had a right to claim sovereignty over the airspace overlying its territory, or every
state had the right to do so Following the end of 1st World War, the first scheduled air
service between Paris and London come into force on 8 Feb 1919 after the conclusion
of Paris Convention on Arial Navigation 1919. The following principles governed the
drafting of the convention: a) Each nation has absolute sovereignty over the airspace
overlying its territories and waters (Art.1). A nation, therefore, has the right to deny
entry and regulate flights (both foreign and domestic) into and through its airspace
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(Art.2), b) Each nation should apply its airspace rules equally to its own and foreign
aircraft operating within that airspace, and make rules such that its sovereignty and
security are respected while affording as much freedom of passage as possible to its
own and other signatories' aircraft, c) Aircraft of contracting states are to be treated
equally in the eyes of each nation's law and d) Aircraft must be registered to a state,
and they possess the nationality of the state in which they are registered. It also
established an authority to supervise the convention known as ICAN (International
Commission for Air Navigation) .

6. Havana Convention 1928: Although President Wilson played a leading role in the
establishment of the League of Nations, he was unable to guide his country into this
general society of states. The fact that the ICAN (International Commission for Air
Navigation) was considered formally linked with the League was one of reasons why
the USA did not join it. The need for a separate form of international cooperation on a
regional American basis was result of this situation. Therefore, the Commercial
Aviation Commission was drawn up to formulate a Pan-American Convention of
Aerial Navigation. It also took the Paris Convention as starting point. The Havana
Convention was modelled after the Paris Convention; it applied exclusively to private
aircraft (government aircraft were not included) and laid down basic principles and
rules for aerial traffic, recognizing that every State had complete and exclusive
sovereignty over the airspace above its territory and adjacent territorial waters.

7. Convention for the Unification of Certain Rules Relating to International Carriage

by Air (Warsaw Convention) of 12 October 1929: The Warsaw Convention is an
international convention which regulates liability, in the event of accident, for
international carriage of persons, luggage or goods performed by aircraft for reward. It
was the first comprehensive legal framework governing aviation at the international
level, playing an essential role in supporting the development of the sector and
establishing a set of principles, most of which are still effective and constitute the basis
of modern aviation law. This Convention mandates carriers to issue passenger tickets;
requires carriers to issue baggage checks for checked luggage; creates a limitation
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period of 2 years within which a claim must be brought; and limits a carrier's liability
(maximum of 125,000 francs for personal injury; 250 francs per kilogram for checked
luggage and cargo; 5,000 francs for the hand luggage of a traveler). The sums limiting
liability shall be deemed to refer to the French franc consisting of 65 milligrams gold
of millesimal fineness 900, which may be converted into any national currency in round
figures. The convention of 1929 came into force on 13 February 1933.

8. Chicago Conference on International Civil Aviation,1944: The Convention on

International Civil Aviation, drafted in 1944 by 54 nations, was established to promote
cooperation and “create and preserve friendship and understanding among the nations
and peoples of the world. signature. This instrument provided a complete
modernization of the basic public international law of the air. It was intended to replace
the Paris Convention on Aerial Navigation of October 13, 1919 and did so when it
came into effect on April 4, 1994. The Convention also provided the constitution for a
new permanent international organization, the International Civil Aviation
Organization, which replaced the previous international organization of more limited
scope, the International Commission for Air Navigation.

a. Sovereignty Over National Air Space

The Convention recognized the principle that every State has complete and
exclusive sovereignty over the air space above their territory [Art.1]. For the purpose
of Chicago Convention territorial airspace shall be deemed to be the land areas and
territorial waters adjacent thereto under the sovereignty, suzerainty, protection or
mandate of such State [Art.2].
The convention attempts to distinguish between civilian and state aircraft under
Art.3 of Chicago Convention. The convention applies only to civil aircraft and does not
apply to State aircraft used in military customs and police services [Art.3 (a)]. No State
aircraft of a contracting State shall fly over the territory of another State or land thereon
without authorisation by special agreement or otherwise and in accordance with the
terms thereof. [Art.3 (c)].
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Regarding rights of scheduled flights, no scheduled international air service

may be operated over or into the territory of contracting states except with the special
permission or authorization in accordance with such terms and conditions of such
permission or authorization [Art.6]. Regarding the rights of non-scheduled flights over
the territory of a State, subject to the terms of the convention shall have the right to
make flights into or in transit non-stop across its territory and to make stops for non-
traffic purposes without the necessity of obtaining prior permission, and subject to the
right of the State flown over to require landing for safety and law enforcement purposes
and if the non-scheduled flight is carrying passengers or cargo shall also have the right
to dis-embargue the same [Art.5].
Each contracting State undertakes not to enter into any arrangement s which
specifically grant any such privilege on an exclusive basis to my other State or an airline
of any other State, and not to obtain any each exclusive privilege from any other State
[Art.7]. Each contracting State may, for reasons of areas military necessity or public
safety, restrict or prohibit permanently or temporarily either gradually or with
immediate effect under emergency situations access to whole or certain parts of its air
space uniformly to aircraft of its own and other States provided that no distinction in
this respect is made between the aircraft of the State whose territory is involved,
engaged in international scheduled airline services, and the aircraft of the other
contracting States like-wise engaged. Such prohibited areas shall be of reasonable
extent and location so as not to interfere unnecessarily with air navigation. Such
prohibition or restrictions should be properly described and communicated to other
State members [Art.9].
b. Aircraft Nationality:
Chicago Convention provides that, “Aircraft shall have the nationality of
the State in which they are registered [Art.17]. Aircraft may not be registered in
more than one State, though registration may be changed from one State to another
[Art.18]. Registration, and transfers of an aircraft shall be according to the domestic
laws of the registering State [Art.19].
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c. State Duties:
Chicago Convention requires that States ensure that aircraft flying over their
territory or carrying their nationality mark shall comply with the rules and
regulations governing flight there in force. Over the high seas, the rules in force are
those established under the Convention [Art.12]. The registering State must report
to ICAO data revealing the ownership and control of aircraft it registers. It also
must make available to other contracting States, or ICAO, information concerning
the registration and ownership of aircraft registered in it, on demand [Art.21]. The
State must provide such aircraft with a certificate of airworthiness, and issue
certificates of competency and licenses for pilots and flight crew on such aircraft
[Art. 31 and 32]. State must also issue licenses for aircraft radio equipment [Art.
30]. Other States, in turn, have a duty to recognize certificates of airworthiness and
personnel certificates of competency and licenses as valid, but only so long as the
requirements under which they are issued “are equal to or above the minimum
standards which may be established” by ICAO [Art.33] .

d. Duties of Aircraft Carriers:

Every international aircraft must display its nationality and registration
marks [Art.20]. Certain documents must be carried aboard the aircraft, including
its certificate of registration, its certificate of airworthiness, the licenses for each
member of the crew, its journey log book, its radio license, the names and places
of embarkation and destination of any passengers aboard, and a manifest and
detailed declarations of any cargo aboard [Art.23].
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9. Five Freedoms of Air:

The International Air International Air

Transport Agreement, Service Agreement,
1944 (ATA) 1944 (ASA)

Freedom to disembark
in foreign territory a Freedom to fly
traffic of passengers across the foreign
or goods originating territory without
in the state of origin landing;
of the aircraft

Freedom to pick up in
a foreign country all Freedom to Land for
the traffic destined for non-traffic purposes;
the state of origine of
the aircraft

freedom to carry
traffic between
foreign countries

The Chicago convention also enumerated the five freedoms of Air under two
different agreements, namely; The International Air Service Agreement, 1944 (which
was signed by most states) and the International Air Transport Agreement, 1944 (which
as signed by only a minority of states). The Five Freedoms of Air are as mentioned
above.
10. International Civil Aviation organization (ICAO): The International Civil Aviation
Organization (ICAO) is a UN specialized agency, established by States in 1944 to
manage the administration and governance of the Convention on International Civil
Aviation (Part II, Chapter VII to XIII of Chicago Convention).
a. Aims and Objectives
ICAO's aims and objectives, as stated in the Chicago Convention, are to foster
the planning and development of international air transport so as to ensure the safe and
orderly growth of international civil aviation throughout the world; encourage the arts
of aircraft design and operation for peaceful purposes; encourage the development of
airways, airports, and air navigation facilities for international civil aviation; meet the
needs of the peoples of the world for safe, regular, efficient, and economical air
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transport; prevent economic waste caused by unreasonable competition; ensure that the
rights of contracting states are fully respected and that every contracting state has a fair
opportunity to operate international airlines; avoid discrimination between contracting
states; promote safety of flight in international air navigation; and promote generally
the development of all aspects of international civil aeronautics.
b. Structure of ICAO:
The three main organs of ICAO are the assembly, the council, and the secretariat,
headed by the Secretary General [Art.43].
c. Activities under ICAO: ICAO has made many rules relating to International Air
Transport and International Air Traffic. Following are some of the important
treaties adopted under ICAO:
i. Convention on the International Recognition of Rights in Aircraft 1948:
dealing with the transfer of title to aircraft
ii. Protocol of Amendments of the Warsaw Convention, 1929 concerning the
Liability o the Air Carrier to passengers and Cargo concluded in Hague
1955.
iii. Convention on Compensation for Damage Caused by Aircraft to Third
Parties (known as the General Risks Convention) 2009: This convention
applies to damage to third parties occurring in the territory of a State party
caused by an aircraft in flight, other than as a result of an act of unlawful
1
interference, when the operator is based in another State party.
iv. Convention on Compensation for Damage Caused by Aircraft to Third
Parties, in the case of unlawful interference (known as the Unlawful
Interference Convention) 2009: This convention applies to damage to third
parties which occurs in the territory of a State party caused by an aircraft
in flight as a result of an act of unlawful interference when the operator is
based in another State, whether or not a party to the convention (article 2,

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The operator is strictly liable up to a threshold tentatively set at SDR 250,000 to SDR 500,000 per claimant (article
3). The operator is also liable for all damage in excess of this limit unless it can prove that such damage was not
due to its negligence or that it was solely due to the negligence of another party. There is no cap on the liability of
the operator – the liability limit relates to each individual claim not to the event – and neither is there any
compensatory scheme under this convention to reduce the financial impact on operators.
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para 1). The convention also applies, in certain circumstances, to damage

to third parties in a non-State party where the operator causing the damage
was from a State party.
11. Aircraft Hijacking (also known as skyjacking, plane jacking, air robbery, air
piracy, or aircraft piracy) An Introduction:

The word hijack has multiple origin stories, but all associated with the act or
omission of crime. The word 'hijack' has its origins in pre-revolutionary France.
Impoverished peasants attacked and robbed aristocrats travelling in coaches through the
countryside. The word they employed for this practice was 'échaquer,' which, sharing a
common root with 'éjecter' in the Latin word 'eiacere,' meant primarily the physical
removal of the aristocrat from his carriage and of his possessions from his person. 2 The
English origin of hijack first materialised from the prohibition era in America. Supposedly
a member of one gang would approach the driver of a rival gang's bootlegging truck with
a smile and a disarming 'Hi, Jack!' before sticking the muzzle of a gat in the face of the
poor unfortunate and relieving him of both truck and its alcoholic cargo. 3

Hijack regarding aircrafts can be defined as the unlawful removal of lawful

authority of current or original crew of the aircraft and forcing the plane to go in other
directions, and causing other problems by going into the air space of another country
without a permit, and committing acts to hinder passengers and to rob by threatening the
crew using force and threats or other illegal acts contrary to principles of international law.

In Arequipa, Peru21 February 1931, first recorded aircraft hijacking act: Captain
Byron Rickards of USA, the Pilot that experienced the first hijacking in the world; after
landing his Panagra Ford type plane with three engines were surrounded with armed
military of a Revolutionary Faction in Peru during that time.. The soldiers told the pilot
that the plane was confiscated for the revolution. The motives underlying aircraft
hijackings can be grouped into four motives; those are (1) personal motive, (2) hostage

2
See: What is the origin of the word 'hijack'? by The Guardian available at
https://www.theguardian.com/notesandqueries/query/0,,-1420,00.html
3
Supra n.1
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taking motive, (3) pure political motive and political motive with violence, and (4) gaining
political asylum motive.

International Civil Aviation Organization (ICAO) has established several

international conventions in the efforts to prevent and to resolve aircraft hijacking in
addition to the Annex 17 of Chicago Convention of 1944 along with its manual and ICAO
Model Agreement as explained below:

i. Chicago Convention of 1944

ii. Tokyo Convention of 1963 Tokyo Convention of 1963
iii. Hague Convention 1970 for the unlawful seizure of aircraft
iv. The Montreal Convention 1971 for the suppression of unlawful acts against
the safety of aviation unlawful acts against the safety of aviation
v. The Montreal Protocol for the suppression of acts of violence at airports
violence at airports 1988
vi. Convention on the Marking of Plastic Explosives 1991
a. The Chicago Convention of 1944 on Aircraft Hijacking
The preamble to the Convention The preamble to the Convention provides that
“the future development of international civil aviation can greatly help to create and
preserve friendship and understanding among nations and peoples of the world, yet its
abuse can become a threat general security. general security.” The Chicago Convention
of 1944 prohibits the “use of Civil Aviation for any purpose inconsistent with the aims”
of the Convention [Art.4]. The Chicago Convention during its inception lacked other
necessary emphasis to tackle the meness of hijacking which required a specific or
special law-making treaty.
b. The Convention on Offences and Certain Other Acts Committed on Board Aircraft
(Tokyo Convention) 1963
The delegates who met in Tokyo in 1963 were concerned with drafting legal
rules governing offenses occurring on board the aircraft. The issue of unlawful seizure
of aircraft was added in Article 11 of the convention states that the contracting State in
which a hijacked aircraft lands is obligated to "take all appropriate measures to restore
control of the aircraft to its lawful commander" [Art.11 (1)] and to "permit its
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passengers and crew to continue their journey as soon as practicable [Art.11 (2)]. The
Convention has been criticized for its failure to create a definitive obligation on behalf
of its signatories to prosecute or extradite the individual committing acts of unlawful
interference. Also, instead of defining the term ‘hijack’ these provisions fix the
responsibilities on the States in this connection. Tokyo Convention of 1963 uses
national jurisdiction principle, 4 and territorial jurisdiction principle for its
implementations. 5

c. Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague Hijacking
Convention) 1970: Art.1 of the said convention provides that one or group of persons
who:
i. Use force or threat thereof, or any other form of intimidation including any
attempt to do so alone or through an accomplice
ii. For seizing, or exercising intimidation, seizing, or exercising control of, that
aircraft,
iii. The use of force or threat thereof is unlawful, and
iv. All the acts mentioned above must be committed while the aircraft is on flight.

The elements of hijack mentioned in the Hague Convention are more or less similar to the
ones mentioned in Art. 11 of Tokyo Convention. The only novelty is the inclusion of the concept
of accomplice in the context of hijack.

d. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation
(Sabotage Convention or the Montreal Convention) 1971: The Montreal Convention
addresses the issues of damage to air navigation facilities and aircraft sabotage, and extends

4
National Jurisdiction principle has its strength and weaknesses. The strength of this principle is that this principle
may prevent the occurrence of lawless territory. Its weaknesses, however, may occur if the plane lands in other
state, the state may not be able to sentence any penalty for the hijackers.
5
Territorial jurisdiction principle is sourced at the general law doctrine in criminal law. According to this principle,
the state who owns the jurisdiction is the state in which the crime is committed. This principle also has its strength
and its weaknesses. Its strength applies when there is an occurrence of aircraft hijacking; it is possible to call the
local police immediately to arrest the hijackers because it is in accordance with the state’s sovereignty, and there
will be no problem in hijackers’ extradition. However, the weaknesses in applying territorial jurisdiction principle is
that it is difficult to decide quickly the site of the crime, because airplane can move at a such speed passing several
states without paying attention to the state sovereignty.
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its scope to certain activities preceding embarkation and departure, and subsequent to
landing and disembarkation during the event of hijacking an aircraft.
The Montreal Convention extends the scope of aircraft hijack by defining the
following offences including their attempt and through an accomplice under Art.1:
(a) acts of violence likely to endanger the safety of an aircraft or
(b) destruction of or serious damage to an aircraft in service which render it
incapable of flight and likely to endanger its safety, or
(c) places or causes to be placed on an aircraft, in service a device or substance
which is likely to destroy that aircraft or cause damage to and likely to
endanger its safety, or
(d) destruction of or serious damage to air navigation facilities likely to endanger
the safety of an aircraft in service, or
(e) communication of false information that endangers the safety of an aircraft.

Art.2 of the Montreal Convention further provides that for the purpose of the convention
an aircraft is in flight at any time from the moment when all its external doors are closed following
embarkation until the moment when any such door are opened for disembarkation. In case of
forced landing, the flight shall be deemed to continue until the competent authority take over the
responsibility and for the persons and property on board.

e. The Montreal Protocol for the suppression of acts of violence at airports violence at
airports 1988: Extended the principal provisions of the provisions of the Montreal
Convention Montreal Convention to airports, prohibiting to airports, prohibiting acts of
violence at acts of violence at airports and the airports and the destruction or damage
destruction or damage of airport facilities.
f. Convention on the Marking of Plastic Explosives for the Purpose of Detection (The
Montreal Convention of 1991): In response to Security Council Resolution 635, ICAO
drafted the Convention on the Marking of Plastic Explosives for the Purpose of Detection
of 1991. It calls upon member States to take “ “necessary and effective measures” ”to
prevent the manufacture, and exert control over the possession and movement of,
unmarked explosives, as well as destroy existing stockpiles. This is not, technically, an
aviation convention.
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12. Rights of States under International law prohibiting aircraft hijack:

a. [Tokyo, Art. 3(1)] The State of Registration may exercise jurisdiction over offenses
committed on board an aircraft
b. [Art.4 of Tokyo convention] A State that is not the State of Registration may
exercise its jurisdiction over an offense committed on board if the offense:
i. affects its territory, affects its territory,
ii. was committed against its national or permanent resident,
iii. infringes its security, or
iv. breaches flight or maneuver rules and regulations there in force
c. [ Art.14 (1)] If it refuses to accept a disembarked passenger that it not its national
or permanent resident, a State may return such passenger to his State of nationality
or permanent residence, or the territory in which he began his journey.
13. Duties of States under International law prohibiting aircraft hijacking:
a. States must allow a passenger to disembark if delivered to it by the commander of
the aircraft on grounds he has it by the commander of the aircraft on grounds he has
committed, or is about to commit, an offense against committed, or is about to
commit, an offense against penal law, or penal law, or “ “may or do jeopardize the
safety of the may or do jeopardize the safety of the aircraft or of persons or property
therein or which aircraft or of persons or property therein or which jeopardize good
order and discipline on board. jeopardize good order and discipline on board.
[Art.12 of Tokyo Convention].
b. take custody of hijacker(s) for such time as necessary to take him into custody for
such time as necessary to launch criminal or extradition proceeding [ Art.13 (2) of
Tokyo Convention]
c. allow hijacker to communicate with the State of which he is allow him to
communicate with the State of which he is a national [ Art.13 (3) of Tokyo
Convention]
d. immediately make a preliminary enquiry into the facts of hijacking incident [ Art.13
(4) of Tokyo Convention]
e. notify the State of registration, the State of which the hijacker is a national, and any
other interested State such hijacker is a national, and any other interested State that
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the hijacker has been taken into custody and the hijacker has been taken into
custody and the circumstances that warrant his detention, and whether it
circumstances that warrant his detention, and whether it intends to exercise
jurisdiction [ Art.13 (5) of Tokyo Convention and Art.5 (2) of Montreal 1975]

SANDEEP M CHANDRASEKHARAN
ASSISTANT PROFESSOR,
VELS UNIVERSITY SCHOOL OF LAW
EMAIL: SANDEEP.LAW@VELSUNIV.AC.IN
PH: 9074454646