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✔ Before the First World War, there were various theories dealing with the legal status of
air space above States.
✔ One theory considered that the air space was entirely free and subject to no
sovereignty.
✔ Another considered that there was a zone of “territorial air”, analogy to the
“territorial sea”, under the sovereignty of a State followed by a higher free zone.
✔ A third theory considered that all the air space above a State was entirely within its
sovereignty; while a fourth theory modified this view by positing a right of innocent
passage through the air space for foreign civil aircraft.
✔ Nevertheless, all theories agreed that the air space above the high seas and terrae
nullius was free and open to all States.
✔ The outbreak of the First World War in 1914, with its recognition of the security
implications of the use of the air space led to the arise of a new rule of customary law.
✔ The military use of aircraft during the First World War meant that any rule which did
not satisfy States’ concern of security would not be acceptable by them on security
grounds.
✔ States would not content with anything less than a complete sovereignty over their air
space, unlimited by any right of innocent passage.
✔ Since then, the customary rule has been that aircraft of one State have a right to fly
over the high seas, but not over the territory or territorial sea of another State.
✔ This rule is reaffirmed by the 1944 Chicago Convention on International Civil
Aviation, which provides that “every State has complete and exclusive sovereignty over
the airspace above its territory”.
✔ The territory of a State consists “the land areas and territorial waters adjacent
thereto under the sovereignty, suzerainty, protection or mandate of such State”.
✔ Sovereignty of a State was understood to extend for unlimited distance into the
airspace above its territory. However this view has been modified by the law of outer
space.
To understand the contemporary international law concerning air space and outer space, it
is necessary to devote the first section of this chapter to deal with the law of air space,
followed by the second section dealing with the law of outer space.
The Law of Air Space
The present law of air space which is centred on the regime concerning air
navigation has developed from the Chicago Conference of 1944 and the
conventions adopted there (such as, the 1944 Chicago Convention on
International Civil Aviation, the 1944 Chicago International Air Services
Transit Agreement, and the 1944 Chicago International Air Transport
Agreement).
The 1944 Chicago Convention on International Civil Aviation is an
international multilateral agreement concluded at the 1944 Chicago
Conference.
This Convention lays down the fundamental principles of international air
law and establishes the International Civil Aviation Organization (ICAO) as
one of the specialized agencies of the United Nations.
The 1944 Chicago Convention does not bring any major change in the
international law of air, previously codified in the 1919 Paris Convention for
the Regulation of Aerial Navigation.
It does state more detailed and refined rules, reflecting agreements on
standards of air navigational practices.
It does not, however, provide the legal framework for international air
traffic, which has been left to be regulated by bilateral agreements.
Accordingly, States have concluded many reciprocal bilateral agreements
concerning routes and traffic volume.
The Chicago Convention reaffirms the basic principles of customary
international air law.
It provides that every State has complete and exclusive sovereignty over the
airspace above its territory.
It states the principle that aircraft have the nationality of the State in
which they are registered (notably, many rules governing aircraft, provided
in the Convention, have been copied from the rules governing ships).
It makes a distinction between scheduled and unscheduled air services.
No scheduled international air service of one State may be operated over or
into the territory of another State, except with the special permission or
other authorization of that State, and in accordance with the terms of
such permission or authorization.
Aircraft not engaged in scheduled international air services have the right
to make flights into or in transit non-stop across the territory of another
State, and to make stops for non-traffic purposes without the necessity of
obtaining prior permission of that State, subject, however, to the right of
the State flown over to require landing, or to impose certain restrictions,
such as routes and off-limit areas.
The Chicago Conventions applies only to civil aircraft, not to State aircraft
which are used in military, customs and police services.
State aircraft have no right to fly over the territory of another State or
land thereon without authorization by special agreement or otherwise, and
in accordance with the terms thereof.
The principle of complete and exclusive sovereignty over the national airspace
is a firmly established rule of customary International Law.
It is unquestionably principle of the most fundamental principles of
contemporary International Law.
It is, however, qualified by various multilateral and bilateral conventions
which permit aircraft to cross and land in the territories of the contracting
States.
Violation of national airspace by unauthorized foreign aircraft is a serious
breach of International Law, and has led to many international incidents
and disputes.
It has been questioned whether there exists a right of passage through the
airspace over States, based upon the apparent similarity of treatment as
regards sovereignty between the airspace and the territorial sea which
centres upon the right of innocent passage that exists through territorial
waters.
It is now accepted that no such right may be exercised in customary
International Law.
Aircraft may only traverse the airspace of states with the agreement of
these states, and where such agreement has not been obtained an illegal
intrusion will be involved which will justify interception, though not (save in
very exceptional cases) actual attack.
The principle of complete and exclusive sovereignty over national airspace
does raise an important and controversial question regarding the boundary
between national airspace and outer space.
This question remains undetermined and uncertain in International Law,
because there is no agreement on the boundary between national airspace
and outer space, and none of the conventions contains any provisions on the
precise point where the airspace ends and outer space begins.
Thus, the rule that the sovereignty of a State extends over its airspace to
an unlimited height has been one of the fundamental principles of the law of
airspace.
However, this rule has been substantially modified as the result of the
creation and development of the new law of outer space.
The Law of Outer Space
o Ever since the Soviet Union launched the first artificial satellite in 1957,
space has constituted a new frontier to be discovered. Space technology and
exploration have developed at an unimaginable rate.
o International Law has had to keep pace with the rapid progress in this
field.
o The need to establish a legal regime to govern the activities in the outer
space has been the central concern of the International Law.
o Thus the law of outer space has emerged providing such legal regime to
govern outer space and the activities therein.
o Between the years 1957 and 1963, the General Assembly of the United
Nations adopted six resolutions applicable to outer space.
o These resolutions were incorporated in the year 1967 in “the Treaty on
Principles Governing the Activities of States in the Exploration and Use of
Outer Space, Including the Moon and Other Celestial Bodies” (known in
short as “the Outer Space Treaty ”).
o The 1967 Outer Space Treaty is an international multilateral agreement
setting forth the fundamental international principles governing the outer
space.
o The outer space is the zone beyond the airspace surrounding the earth.
o The Boundary between the airspace and outer space is an issue which
remains undetermined and uncertain.
o Neither the 1967 Outer Space Treaty nor any other conventions or treaties
concerning airspace or outer space contains any provision on the precise
point where the airspace ends and outer space begins.
o Although States, so far, have not feel the urgency to establish a
demarcation line between airspace and outer space, their practice provides
sufficient evidence for the existence of the international rule that although
national sovereignty, for security reason, must extend over the airspace up to
a certain limit, it ends at some attitude above the earth. No State has
insisted on its sovereignty to an unlimited height.
o All States have conceded to unlimited over-flights of foreign satellites and
spacecraft over their territories.
o This practice infers that the sovereignty of a State over its airspace is
limited in height at most to the point where the airspace meets the space.
o To determine such a point, proposals have been suggested basing on a variety
of scientific and technological criteria.
o Among these criteria are the theoretical limits of air flight or the lowest
altitude at which an artificial satellite can remain in orbit; these criteria
place the boundary of the airspace at around 50 to 100 miles.
o Wherever outer space may begin, it is governed by International Law,
including the Charter of the United Nations.
o The international law of outer space consists mainly of the Outer Space
Treaty, the Rescue of Astronauts Agreement, Liability for Damage Caused
by Space Objects Convention, the Registration of Objects in Space
Convention, and the Agreement Governing the Activities of States on the
Moon and Other Celestial Bodies (the Moon Treaty).
o Beside these multilateral agreements, there are numerous regional and
bilateral agreements on outer space cooperation, research and
communications.
o The international law of outer space provides the fundamental principles
relate to the outer space. Among these principles are:
1. Prohibition of national appropriation: Outer space, including the moon and
other celestial bodies, is not subject to national appropriation by claim of
sovereignty, by means of use or occupation, or by any other means. Outer space is
“the common heritage of mankind” (res communis).
2. Freedom of exploration: Outer space, including the moon and other celestial
bodies, is free for exploration and use by all States without discrimination and in
accordance with International Law, and there is free access to all areas of
celestial bodies.
3. The province of all mankind: The exploration and use of outer space, including
the moon and other celestial bodies, shall be carried out for the benefit and
interests of all countries, irrespective of their degree of economic or scientific
development.
4. Ban on weapons of mass destruction: It is prohibited to place in orbit
around the earth any objects carrying nuclear weapons or any other kinds of
weapons of mass destruction, and to install such weapons on celestial bodies, or
station such weapons in outer space in any manner.
5. The demilitarization of the moon and other celestial bodies: The moon and
other celestial bodies shall be used by all States exclusively for peaceful purposes.
The establishment of military bases, installations and fortification, the testing of
any type of weapons, and the conducting of any military actions on the celestial
bodies are forbidden.
6. The liability for damages: A State launching or procuring of launching of an
object into outer space, including the moon and other celestial bodies, and the
State from whose territory or facility an object is launched is internationally liable
for damages caused to another State or to its nationals by such object or its
component parts on the earth, in air space or in outer space, including the moon
and other celestial bodies.
7. Ownership of objects launched into outer space is not affected by their
presence therein, or by their return to earth.
8. A State on whose registry an object launched into outer space is carried
retains jurisdiction and control over such object, and over any personnel thereof,
while in outer space or on a celestial body.
9. The duty to avoid harmful contamination and adverse changes in the
environment.
10. The duty to provide assistance to space vehicles and astronauts in distress,
and to return them safely and promptly to the State of registry of their space
vehicle.
11.The duty to inform the Secretary-General of the United Nations as well as the
public and the international scientific community of the nature, conduct, locations
and results of their activities in outer space, including the moon and other celestial
bodies.
12.The duty to open all stations, installations, equipment and space vehicles on the
moon and other celestial bodies to representatives of other States for inspection.
Despite the growing body of rules of the international law of outer space, much
remains to be done, particularly in the field of military uses of outer space, space
navigation, telecommunications, and the unresolved question related to the
boundary between the airspace and outer space.