This post is contributed by Deeksha Prakash , Symbiosis Law School, Hyderabad

The development of the law relating to airspace at the start of the 20th century threw up issues of state jurisdiction and the extent of it.

Several theories were suggested concerning airspace over a state and its territorial waters.

One theory was based on the private law maxim cujus est solum ejus est usque ad coelum et ad inferos i.e. ( he who owns the surface has title both to the airspace above and the subsoil )

Three other theories were suggested

  1. The airspace is free subject only to the rights of states required in the interests of their self-preservation.
  2. An analogy of territorial sea was presented on this basis, each state claimed a lower zone of territorial airspace and a higher and unlimited zone of free airspace.
  3. Every state has sovereignty over its superjacent airspace subject to the right of innocent passage for foreign non-military aircraft.
  4. The use of aircraft as a potential military weapon during World War-I made national security a primary concern which made all the states to assert sovereignty over their airspace to an unlimited height.

Paris Convention-1919

  • The first ever treaty in the field of airspace on a multi-lateral basis.
  • It recognized that every state  has complete and exclusive sovereignty over the airspace above its territory.
  • Right of innocent passage to civilian aircraft of other parties during peacetime.
  • It made a distinction between scheduled airlines or air services and non-scheduled airlines or air services.
  • It provided for registration of aircraft,  certificates of air worthiness and licences for the air crew.
  • It established an International Commission for Aerial Navigation.

Havana Convention-1928

The Sixth Inter-American Conference adopted a convention know as the Havana Convention on Commercial Aviation.

Warsaw Convention-1929

  • The convention deals with the unification of certain rules relating to international carriage by air.
  • The convention was adopted with a view to lay down uniform rules relating to the liability of the carrier where damage or injury is caused to passengers or to baggage and goods during the international carriage.
  • The primary idea is to establish and limit liability of carrier by taking an insurance cover.

Chicago Convention-1944

  • Rapid progress in technology after World War I and an equally amazing increase in transcontinental and inter-oceanic aviation resulted in new problems that included landing rights for international airlines.
  • The contracting States recognize that every state has complete and exclusive sovereignty over the airspace above its territory.
  • The territory of a state comprises of the land areas and territorial waters adjacent thereto under the sovereignty or protection of that state.
  • The convention shall apply only to civilian aircraft.
  • The aircrafts of other contracting states being aircrafts not engaged in scheduled international air services shall have the right to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes.
  • No scheduled international air service may be operated over or into the territory of a contracting state w/o  the authorization of that state
  • Aircraft have the nationality of the state in which they are registered.
  • An aircraft can be validly registered in more than one state.

Five Freedoms of Air

  1. Freedom to fly across foreign territory without landing.
  2. Freedom to land for non-traffic purposes
  3. Freedom to disembark in foreign territory traffic originating in the state origin of the aircraft
  4. Freedom to pick up in any foreign country traffic destined  for the state of origin of the aircraft
  5. Freedom to carry traffic between two foreign countries

Aerial Hijacking

Aircraft hijacking is a contemporary addition to the already existing national and international crimes.It is a crime against the safety of civil aviation and is similar to piracy.

  • Article 11 of the Tokyo Convention-1963 -When a person on board has unlawfully committed by force or threat thereof an act of interference, seizure or wrongful exercise of control of an aircraft in flight or when such an act is about to be committed , contracting states shall take all appropriate measures to restore control of the aircraft  to its lawful commander or to preserve the control of the aircraft.
  • Article 1 of the Hague Convention1970  -Any person who on board an aircraft in flight (a) unlawfully by force or threat thereof or by any other form of intimidation, seizes or exercises control of that aircraft or attempts to perform any such act or (b)  is an accomplice of a person who performs or attempts to perform any such act commits an offence.

The essential elements of the offence of hijacking are as follows-

  1. Unlawful use of force or threat thereof or any other form of intimidation
  2. To commit the acts with the intention to seize that aircraft or to control exercise control over it
  3. The said act should have  been committed on board an aircraft in flight
  4. Accomplice of a person who performs or attempts to perform the above acts is also guilty of the offence of hijacking

Salient features of the Hague Convention

  • State parties may have jurisdiction over the hijackers in one way or another which makes the hijackers difficult to escape the due process of law
  • The offense of hijacking shall be deemed to be an extraditable  offence
  • Rights of the aircraft commander and its crew members to take measures
  • Protection of such persons, arrest, and delivery of hijackers

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