The evolution of modern international law has gone through many different stages since the publication of Hugo Grotius’s De Jure Belli ac Pacis (on the Law of War and Peace) in 1625 and the Mare Liberum (The Freedom of the Sea) in 1609. Due to these publications, Grotius was granted the eminent title of “The Father of International Law”. Coincidentally, Bin Cheng first published his classic work on “General Principles of Law as Applied by International Courts and Tribunals”, which “threw out a challenge to the Doctrine of International Law to sail into new and uncharted seas” as commented by Georg Schwarzenberger, Bin Cheng’s Ph. D. supervisor at University College London in 1953, and laid the solid foundation of a third source of public international law after international treaties and international customary law, within the framework of general international law.

As his Mare Liberum, Bin Cheng’s book entitled “The Law of International Air Transport” was published in 1962 and was another masterpiece of law, which generated a new branch of international air law, as did Grotius with the law of the sea. The Times of London then called Bin Cheng’s book as a “monumental study”, a significant landmark in the development of air law and one of the most important works on international transport as a whole to be published since the Chicago Conference. With its 726 pages and many maps, charts, quotations, texts and lists of agreements and conventions, the book constitutes a “sum” of international civil aviation in its historical (since 1944) and present context, indeed likely the most complete work on this subject to date (The Institute du Transport Aérien), matched by no other writer, on the various freedoms of the air, “traffic rights, capacity criteria, and types of traffic covered by the agreements (The American Journal of International Law).” It is indisputably agreed among scholars of international law that Bin Cheng should be accorded the title of “The Father of International Air Law”.

During the last half-century, I have had the privilege of developing a close friendship with Bin Cheng, although he is living in London and I am in Taipei. In our annual meetings in London, we exchange views on certain aspects of international relations and international law at his residence in Hampstead Garden suburb in London. Bin Cheng is a man of self-discipline, humble, moderate and a bibliophile. Bin Cheng has an epistemophilic personality, meaning that he has an excessive love or reverence for knowledge. As a Chinese intellectual, he has strictly followed the Confucius standard of virtues, particularly the Confucius teaching: “Walking among three people, I find my teacher among them. I choose that which is good in them and follow it, and that which is bad and change it.” In this, Confucius is saying that in a group of three people, there will always be one person he can learn from may be is a golden paragon of virtue for everybody. Bin Cheng is indeed more a ‘disciple’ than a ‘follower’ of Confucius. He is “the superior person loves learning for the sake of learning”.

Bin Cheng’s hard-working and tireless devotion to do research on general international air and space law has inspired me to follow in his path, and to undertake similar research on these two branches of international law. In Asian countries after World War ii, there were very few scholars entering these specific domains of law, as a result of under-developed airline industries and space technology. Even prior to 1990, China, Japan, and Korea had gradually established their airline industries and China had established itself as the world’s third space power, but ideas on how to formulate a legal regime for the airline industry and space management and operation were still weak. Both Bin Cheng and I have had common acknowledgement that we should promote the international air and space law and provide new opportunities for the younger generations to join the air and space industries in Asia. To this end, I planned the first ten-year programme for the promotion of international air and space law in Asia with the strong support of Bin Cheng.

That decade-long programme was managed by the Graduate School of Law, Soochow University, together with the Documentary Centre of International Air and Space Law in Soochow Law School and the Asian Institute of International Air and Space Law, while I was head of these three institutions. Bin Cheng always strongly supported our endeavors to promote air and space law, by actively participating in all activities that were organized by us in Asia. In addition, our promotional work for air and space law in Asia was done in collaboration with the McGill Institute of Air and Space Law and the Leiden International Institute of Air and Space Law. We have therefore become a trio of leading academic institutions in air law teaching and research in Asia.

The first international conference on the ‘Law, Policy and Commerce of International Air Transport and Space Activities’ was held in Taipei from 26–30 May, 1991. In this, Bin Cheng was invited to deliver his essay entitled “Legal and Commercial Aspects of Data Gathering by Remote Sensing”, which was published in ‘The Highways of Air and outer Space Over Asia’, edited by Chia-Jui Cheng and Pablo Mendes de Leon, and published by Martinus Nijhoff Publishers in 1992. The Taipei Conference was a memorable new page in the history of conducting collective research on international air and space law through international conferences ever before held in Asia.

Bin Cheng delivered his second essay on the problems of he Warsaw system of air transport law entitled “The Warsaw System: Mess up, Tear up, or Shore up?” in the Tokyo Conference on ‘Air Transport and Space Application in a New World’, held from 2–5 June 1993. Due to the presence of Bin Cheng, the Tokyo conference attracted more than 150 participants, from Japanese professionals, including government officials of air transport and space agencies, to airline executives, practitioners and scholars. His essay was later published in ‘The Use of Air and Outer Space for all Mankind in the 21st Century’, edited by Chia-Jui Cheng and published by Kluwer Law International in the Hague in 1995.

In the third Beijing Conference on ‘Air and Outer Space at the Service of World Peace and Prosperity’ held from 21–23 August 1995, Bin Cheng was again invited to deliver an essay on “International Responsibility and Liability for Launch Activities”. In his essay, Bin Cheng clearly distinguished between space responsibility and space liability, with special reference to the 1967 Outer Space Treaty, the 1968 Astronauts Treaty, and the 1972 Liability Convention. This was important reference material when the People’s Republic of China (prc) started to ascend as one of the top three global space powers. His essay was published in ‘The Use of Air and Outer Space: Cooperation and Competition’, edited by Chia-Jui Cheng and published by Kluwer Law International in The Hague/London/Boston in 1998.

The Beijing Conference had several special features. It was the first international air and space law conference held in China since 1945, and the first ‘Cross-Strait Conference on the Exchange and Cooperation of Air Transport’, held on 23 August, 1995. The presence of Bin Cheng in Beijing, as the founding father of international air transport law, surprised nearly all Chinese participants who were not informed during the long period of “cold war”. Secondly, it was a great honour for the Beijing conference that H.E. Minister of Civil Aviation Guangyi, Chen, accepted the invitation to inaugurate the opening ceremony of the Beijing Conference as a keynote speaker, the first ministerial official of the prc to attend such a conference held in China. Thirdly, all presidents and general managers of the six prc leading national airlines, as well as the Minister in charge of the Space Agency, Dr. Wang Li Heng, participated in the Beijing conference. Fourthly, the Beijing conference had a record number of attendees from Asian, European and American airlines. It was the first time so many speakers and discussants had taken part in such a conference and Bin Cheng was a key element contributing to the success of the Beijing Conference.

The fourth Asian conference on ‘Air and Space Policy, Law and Industry for the 21st Century’ was held in Seoul from 23–25 June 1997, Bin Cheng was again invited to deliver a paper on “The Military Use of Outer Space: Article iv of the 1967 Space Treaty Revisited”, in which he confirmed that

Article iv of the [1967] Space Treaty has by now acquired a sufficient opinio generalis juris generalis to qualify as a rule of general international law, but also that States would, especially in the wake of the official celebration in 1997 of the end of Cold War, make rapid progress not merely in further limiting the military use of outer void space, but also in using outer space for the purpose of assisting limitations of armament or even general disarmament everywhere by providing an effective means of verification.

Bin Cheng’s essay was published in ‘The Utilization of the World’s Air Space and Free Outer Space in the 21st Century’, edited by Chia-Jui Cheng and Doo Hwan Kim and published by Kluwer Law International in The Hague, 2000.

Bin Cheng’s contribution to the progressive development of international air law is also reflected in the ten hours’ lectures on “The Changing Dimensions of the Law of International Carriage by Air” that he delivered in the summer courses of the Xiamen Academy of International Law in July 2005, and later published in The Collected Courses (Recueil de cours) of the Xiamen Academy of International Law, Vol. i, 2006, published by Martinus Nijhoff Publishers in Leiden and Boston. Bin Cheng’s lectures in Xiamen recorded his life-long devotion to the study of the development of international air transport law.

Bin Cheng has published over a hundred essays on international law, international air law and international space law. Thirty essays concerning international air law have been collected and selected. These essays have been previously published elsewhere between 1957 to 2006, however the Introduction of the present book was written by Bin Cheng in 2016. These essays are classified in accordance with their subject-matter into four Parts. Part 1 introduces the general aspects of international air law, including notion, history, and the international framework. With regard to the beginning stages of the development of international air law, Bin Cheng discusses some of the difficulties of the unification of the rules of air law and their proneness, after unification, to gradually to drift apart. He emphasized that “national sovereignty… implies freedom from restraint and States which are sovereign can be induced only with difficulty to limit their freedom of action.”

Part 2 illustrates the law of international air transport through an analysis of all post-war international air transport agreements, with special reference to eight freedoms of the air, the “Order in the Air”, the results of the Chicago Conference in 1944. the Bermuda Agreements i and ii in exchange of commercial rights, and subject matters of the Warsaw system.

Part 3 is devoted to an examination of the legal status of aircrafts and crimes on board and against aircrafts. Bin Cheng thoroughly analyzes the different national systems of acquisition of nationality of aircraft and aircraft registration, joint registration, international registration, (including nationality of aircraft operated by joint operating organizations), international operating agencies, and the status of State ship and aircraft, crimes and offenses on board aircraft, hijacking, destruction of aircraft on flight, and attacks at airport.

Part 4 deals with the core problems of private international air transport law, particularly on air carrier’s liability within the Warsaw system. A significant contribution to the development of international air law is Bin Cheng’s “The Birth of the Alvor Draft Convention to Re-Unify and Revitalise the Relevant Rules Relating to International Carriage by Air”. The problems are well illustrated in articles 22 and 23 on “An Integrated System of Absolute and Secured Liability for Passenger Injury and Death in International Carriage by Air”.

As a book to memorialize the birth of modern international air law, we should not ignore the contributions of those precursors, creators, pioneers and promoters who have also devoted themselves to life-long research on various subjects of public and private international air law. I have had the privilege to invite a few of those who are widely recognized for their contribution to various subjects of air law within the framework of modern international air law, including Michael Milde, George Tompkins, John Balfour, Stephan Hobe and Pablo Mendes de Leon, to contribute their forewords to this book.

John Balfour is a well-known British international aviation lawyer in Clyde & Co., following the merger with Beaumont & Son in July 2005, with combined experience in both practice and research. John is the author of a well-received book on European Community Law, as well as a contributing editor of Shawcross & Beaumont: Air Law. John has spoken at over a hundred seminars and conferences and holds various positions in aviation organizations, including being a fellow of the Royal Aeronautical Society and its Honorary Solicitor, a member of the International Advisory Board of the International Institute of Air and Space Law at Leiden University and a legal expert adviser to nato’s Civil Aviation Planning Committee.

George Tompkins has been a highly successful practitioner in aviation law in the United States. His book on “Liability Rules to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999” precisely interprets the impact of United States jurisprudence on air carrier liability involving international air transportation, a body of jurisprudence which constitutes the principal source for the interpretation and application of the uniform rules relating to air carrier liability in the international transportation by air of passengers, baggage and cargo, as envisioned by the original drafters of the Warsaw convention of 1929.

Michael Milde joined the International Civil Aviation Organization (icao) as the Principal Legal Officer and was elected to the position of Director of Legal Bureau from 1989 to 1998, as well as Director of the McGill Institute of Air and Space Law from 1997 to 2005. In the 1997 Seoul Conference on ‘Air and Space Policy, Law and Industry for the 21st Century’, Michael spoke on “Institutional and Legal Problems of the Global Navigation Satellite System (gnss) – Solutions in Search of a Problem?” and signed the Declaration of the 1997 Seoul Conference on behalf of the Institute of Air and Space Law, McGill University, Montreal, declaring that:

It is desirable to protect the uniformity of the legal approach towards the contractual liability of air carriers and to pursue the early revision of the Warsaw Convention to amend the liability of air carriers, and that to this end a new International Convention on the Liability of Air Carriers should be prepared.Michael has been an old friend of ours for more than thirty years.

Pablo Mendes de Leon, currently Director of the International Institute of Air and Space Law of the Faculty of Law, Leiden University as well as the President of European Association of Air Law, has worked extremely hard to manage the Leiden Institute of Air and Space Law after his succeeding Prof. Henri Wassenbergh, the founding father of the Leiden Institute of Air and Space Law, to the role. Pablo has contributed greatly to the modern development of international air law in Europe and has cooperated closely with the Asian Institute of Air and Space in the promotion of international air and space law in Asia since 1990. He was a speaker on “Settlement of Disputes in Air and Space Law” at the Tokyo Conference in 1993, on “Unilateral Efforts Designed to Enhance Security in the Context of International Law,” at the 1995 Beijing Conference, and on “Liberalization of air Transport in Europe” at the 1997 Seoul Conference. He successfully inherited an air and space law heritage from the hands of Wassenbergh and enlarged its operation throughout the whole of Europe, and transformed the Leiden Institute into a globally recognized institute for excellence of the world. We will never forget our forty years of friendship and cooperation.

I am tremendously obliged to all of these life-long friends to both Bin Cheng and the editor for their contributions to the forewords of this book.

Editing a book such as this requires a great deal of labour throughout two stages of editing. The first stage of editing work was done in Taipei which was completed on time. The first stage was completed promptly in Taipei, I owe, and gratefully acknowledge, a special debt to Dr. Yeh Hsueh, Lai, Adjunct Lecturer of International Economic Law and the Secretary of the School of Law of Soochow University, for her assistance in a part of the editing work and proofreading. She is a young scholar of humility, patience and tolerance, particularly in her sacrificing her time to undertake parts of the editing work.

Last but not least, I am particularly indeed grateful to Ms. Ingeborg van der Laan of The Brill, for her arrangement of the second stage of editing work and the publication of the book with great enthusiasm, commitment and speed. Furthermore, I would like to pay tribute to the skill and vigilance of the staff of The Brill and Martinus Nijhoff Publishers, for the publication of this work of historical cultural heritage.

Chia-Jui Cheng

Acknowledgements

The editor is greatly indebted to Professor Bin Cheng who has given valuable assistance in the preparation of this book and whose kind permission to reprint his copyright essays is particularly grateful.

The editor is also greatly indebted to Sweet & Maxwell Ltd. London, who generously authorized the reproduction of the following copyrighted book chapters and articles published by Sweet & Maxwell Ltd., London, and Stevens & Sons Ltd., London:

  1. Centrifugal Tendencies in Air Law, [1957]

  2. The Right to Fly, in 42 Transactions of the Grotius Society for 1956 (91958) and in The Law of International Air Transport [1962]

  3. State Ships and Sate Aircraft, in Current Legal Problem [1958]

  4. Crimes on Board Aircraft, in Current Legal Problem [1959]

  5. High Contracting Parties in Air Law: Philippson v. Imperial Airways, Ltd., revisited, Journal of Business Law, 3 [1959]

  6. Aviation, Criminal Jurisdiction and Terrorism: The Hague Extradition/Prosecution Formula and Attacks at Airports, in B. Cheng and E.D. Brown (eds.), Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger on His Eightieth Birthday, [1988]

The editor owes a considerable debt to the Royal Aeronautical Society, London, for permission to reprint the following copyrighted essays:

  1. Royal Aeronautical Society’s Report on Crimes and Offences on Board Aircraft for Submission to the Minister of Aviation, Mimeographed, [1962]

  2. The Hague Convention on Hijacking of Aircraft 1970 – The Legal Aspects, in 76 Aeronautical Journal, [1972]

  3. The Latest on Hijacking, in 77 Aeronautical Journal, [1973]

  4. Compensation for Airline Passenger Death and Injury. The Future of the Warsaw Convention, in 71 Journal of the Royal Aeronautical Society, [1967]

Moreover, the editor wishes to acknowledge the kind permission to reprint copyrighted materials by the following publishers:

  • The British Institute of International and Comparative Law, London, for kind permission to reprint from “A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999),” biic 833 [2004]

  • The Institute of Air and Space Law, McGill University, Montreal, for kind permission to reprint “Beyond Bermuda”, in N.M. Matte (red.), International Air Transport Law, Organisation and Policies for the Future, [1970]

  • Martinus Nijhoff Publishers, for kind permission to reprint “The Changing Dimensions of the International Law of Carriage by Air” from the Collected Courses of Xiamen Academy of International Law, [2006]

  • North-Holland Publishers, for kind permission to reprint “Air Law”, from Encyclopedia of Public International Law, Instalment 11, [1989]

Studies in International Air Law

Collected Work of Cheng Bin

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