Over 80 years ago, in 1923, the famous Rules of Air Warfare were informally drawn up at The Hague by a Commission of Jurists (established in 1922 by the Washington Conference on the Limitation of Armament). These Rules, albeit not binding, have had considerable impact on customary international law warfare.

Still, much has happened in the last 80 years in air warfare, which was in its infancy when the Hague Rules were formulated. For example, missiles and nuclear warheads were not even conceived in 1923. Also, the recent hostilities in Kosovo, Afghanistan and Iraq have amply demonstrated that there are currently many bones of contention regarding the use of aircraft and missiles in warfare.

It is true that there has been some sporadic treatment of the law of air warfare in binding international instruments since World War II. Thus, medical aircraft have been dealt with in Geneva Conventions (I) and (II) of 1949. But it is generally conceded that the Geneva treatment of the subject was inadequate. Not surprisingly, the matter was taken up again in Additional Protocol (I) of 1977 (without quite resolving outstanding issues in a satisfactory manner). The Protocol also extends protection to occupants of aircraft in distress who are parachuting for safety (provided that they are not airborne troops). These are noteworthy yet desultory provisions, which cover only a small portion of the domain of air warfare.

The lack of a contemporary methodical codification of the law regulating air warfare is particularly glaring in light of the successful effort to restate the law applicable to sea warfare, culminating in the San Remo Manual. The San Remo Manual, while non-binding, has gained instant and virtually unanimous support from leading maritime powers; and it appears to have generated a trend (currently in progress) of drafting a number of follow-up domestic naval handbooks.

Models for the elaboration of such manuals, then, exist, and the experience gained can be applied to the case of law related to air warfare. It is hoped that, if crafted carefully, the resulting document can prove acceptable to States as a restatement of customary international law governing air and missile warfare. The idea is not to renovate but systematically to reflect the law as it is. As well, the idea is not to prepare a draft treaty as ground work for a future diplomatic conference. The entire purpose is that the restatement will stand on its own feet as such, i.e., as a mirror image of the lex lata (customary international law). The emerging text cannot have a binding force, but hopefully it will have a persuasive input into the practice of States and military manuals.