Stephan Hobe

It is quite an honor to be asked to write a foreword for a book devoted to one of the most famous international aviation lawyers of our times, Prof. Bin Cheng. His long life covers almost 100 years, which were 100 years of great importance for modern international air flight.

With the Paris Convention 1919 starting to develop the legal frame for modern flying, followed by important pieces concerning questions of liability of the air carrier in the 1929 Warsaw Convention, and renewed in Montreal in 1999, with the Chicago Convention of 1944 and its Annexes as well as with the two additional agreements, the Air Transit and Air Transport Agreement and with legislations starting in the 1960s against the scourge of international terrorism through the taking hostage of airplanes, international aviation law has considerably developed during this time span. Prof. Bin Cheng has written at a rather early time and has been active in commenting these legal developments.

It was a specific methodology that Bin Cheng had developed in his famous London University PhD dissertation on “General Principles of Law as applied by International Courts and Tribunals” where he had analyzed 650 recorded cases of international arbitral and judicial decisions since the Jay Arbitration of 1794. The same methodology was applied in his voluminous pioneer work on “The Law of International Air Transport”, published in 1962. This book inter alia contains a thorough analysis of all the bilateral air transport agreements that were concluded by the United Kingdom with almost every country in the world.

Bin Cheng was born in Beijing went with his parents, his father being a judge at the Permanent Court of International Justice, to England where he started his studies and later became research assistant under Prof. Georg Schwarzenberger (1908 – 1991) for his PhD. Since 1950 as assistant lecturer till his retirement in 1986 he was lecturing aviation law and international law as well as a little bit of space law as well. Of course his PhD dissertation, still the leading monograph on the general principles of law as a source of international law is widely discussed in theory among legal scholars and by courts. Even more prominent is Bin Cheng’s famous article on “United Nations General Assembly Resolutions on Outer Space: ‘Instant’ International Customary Law?” This article published in the Indian Journal of International Law in 1965 (5 Indian Journal of International Law (1965), 23 ff.) touched upon a question hitherto still unclear: on the role of General Assembly resolutions which as is well known cannot per se acquire the value of binding international law since the General Assembly simply lacks the competence to enact binding law. However, many authors have maintained that constant repetition of specific important resolutions of the General Assembly may considerably contribute to the generation of customary international law. On this point, Bin Cheng made a far-reaching statement. He asserted in this just quoted article on the process of a United Nations General Assembly Resolution becoming customary international law that the time element that had always been crucial for the generation of customary international law could be eliminated, particularly in the field of space law. The problems were evident: There was the 1963 Resolution 1962 (xviii) of the General Assembly entitled “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space” which had crystallized important principles like the non-appropriation principle, the principle of freedom of action in outer space, some principles of responsibility and liability of states and some more principles which led in 1967 to the adoption of the Outer Space Treaty. Although the International Court of Justice has still maintained the necessity of the time element “short though it might be” as being an important prerequisite in the formation of customary international law (see e.g. the North Sea Continental Shelf Case of 1969, icj Reports 1969, 3) Bin Cheng had highlighted the relativity of the time element. Ever since, the previous assertation of a long standing practice being the only possible prerequisite for the generation of customary international law has been abandoned from the jurisprudence of the Court.

And so we may summarize that through the collection of his articles in this book an extraordinary intellectual and analytical spirit will be honored. The biography shows all the previous honorations of Bin Cheng. It is important to say at this point that only one reason deprived the present author of this foreword from including the biography of Bin Cheng also into a book that he had edited in 2013, entitled “Pioneers of Space Law”. The book clarifies in its foreword that it “is a tribute to the memory of these pioneers, who are no longer among us”. So only for this – very fortunate – reason Bin Cheng was excluded from the book. And we can happily agree that his enormous contributions also to the science of space law will have easily justified this inclusions in the pioneers book. Nevertheless we can express our satisfaction and gratitude for the fact that this book here specifically honors Bin Chengs extremely valuable contribution to air law.

Studies in International Air Law

Collected Work of Cheng Bin

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