Posted by Howard S. Schiffman on March 03, 2002 at 03:04:44:
In Reply to: international aviation law posted by colm fahy on March 01, 2002 at 11:30:16:
Thank you for posting on the InternationalLawHelp.com Forum. You raise a good question.
As I am sure you will agree, among the most challenging issues international lawyers often face is whether a given point or principle is part of customary international law. The 1944 Convention on International Civil Aviation (Chicago Convention) entered into force in 1947 and presently has 187 members. Its principal achievement is the establishment of the International Civil Aviation Organization (ICAO). I think your question would best be phrased in terms of whether or not certain specific aspects of the Chicago Convention may be considered customary law as opposed to all items contained within the treaty. Is there a particular matter you are concerned with?
You may find some scholarly writings addressing whether the matter(s) you are interested in is considered customary law by some states. This may be addressed in books or articles on aviation law. Questions about the status of custom are also often considered in various digests and yearbooks of international law. Even if you are lucky enough to find a source discussing it directly, there is really no substitute for researching the matter independently through primary sources. These include (among other things) statements of governments, judicial opinions, UN declarations and resolutions, reports of international organizations, and as you suggest, treaties. The Chicago Convention and its large number of ratifications would certainly be evidence of custom. That treaty has also given rise to others addressing the same general subject of navigation and air safety such as the Montreal Convention. These documents may be considered as well.
I would only add the caveat that merely because an item appears in a treaty, or even many treaties, and is followed broadly by a large number of states, it still may not qualify as custom. The best example I can think of is the matter of extradition. Even though it is provided for in numerous treaties (including, for example, the above mentioned Montreal Convention) it is still considered a creature of treaty law, not custom.
Please let us know what your research reveals. Best of luck.
Howard S. Schiffman, Esq.
Co-Founder and Administrator
www.InternationalLawHelp.com
: Although it appearsv to me that the almost universal ratificatio of the chicago convention would suggest it also represents customary international law, i cannot find any material addressing this issue unambiguously - has anybody any ideas?? Sources? References? Thanks