Harmonization in the Absence of Official Adherence: The Postwar Diffusion of International Regulatory Standards into the United States

With the achievement of powered, controlled flight at the dawn of the twentieth-century, humanity now possessed the means to travel through a hitherto inaccessible realm. Many in the United States saw the airplane as an instrument of political, social, and economic progress, but the revolutionary nature of human flight challenged formal and informal institutions that had developed for centuries within a solely terrestrial context. Other than the common law maxim cujus est solum ejus est usque ad coelom (he who owns the soil owns up to the sky), the atmosphere remained a lawless frontier. The airplane’s ability to transcend political borders and geographical barriers threatened to undermine the established sovereign state system, the ideological cornerstone of international relations since the 1648 Peace of Westphalia.

Prior to World War I, several pioneering legal minds in the United States and Europe saw the need to expand and codify governmental control over the air to ensure protect citizens and property. In the United States, the Constitution’s federalist system embodied within the Tenth Amendment’s reserve clause further complicated the question of regulatory control. The existential crisis of World War I accentuated the airplane’s military capabilities and the national security aspects of aviation. In response, Allied representatives drafted the Convention Relating to the Regulation of Aerial Navigation as part of the Versailles Peace Conference to foster civil aviation within the existing sovereign state system. Although the United States took an active part in the creation of this first international aviation regime, its ties to the League of Nations precluded American participation. Drawing on archival sources, this paper analyzes how domestic politico-cultural ideas, the postwar international aviation regime, and the technology of the aircraft itself influenced the development of an American regulatory ideology for aviation and its institutionalization within the 1926 Air Commerce Act.