Before the First World War, there were
various theories dealing with the legal status of air space above States.[2] 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 aircrafts 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,[3]
which provides that “every State has complete and exclusive sovereignty over
the airspace above its territory”.[4] The territory of a State consists “the land
areas and territorial waters adjacent thereto under the sovereignty,
suzerainty, protection or mandate of such State”.[5]
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.
Section
1: The Law of Air Space
The present law of air space which is
centered 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.[6] 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).[7] 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.[8] 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.[9]
The Chicago Conventions applies only to
civil aircraft, not to State aircraft which are used in military, customs and
police services.[10] 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.[11]
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 centers 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. This matter is discussed below.
Section
2: The Law of Outer Space
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.
International Law has had to keep pace with the rapid progress in this
field. The need to establish a legal
regime to govern the activities in the outer space has been the central concern
of the International Law. Thus the law
of outer space has emerged providing such legal regime to govern outer space
and the activities therein.
Between the years 1957 and 1963, the
General Assembly of the United Nations adopted six resolutions applicable to
outer space.[12] 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 of 1967”).[13]
The 1967 Outer Space Treaty is an
international multilateral agreement setting forth the fundamental international
principles governing the outer space.
The outer space is the zone beyond the airspace surrounding the
earth. The Boundary between the airspace
and outer space is an issue which remains undetermined and uncertain. 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. 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. All States have conceded to
unlimited over-flights of foreign satellites and spacecraft over their
territories. 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. To determine such a point,
proposals have been suggested basing on a variety of scientific and
technological criteria. 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.[14]
Wherever outer space may begin, it is
governed by International Law, including the Charter of the United
Nations. The international law of outer
space consists mainly of the 1967 Outer Space Treaty,[15]
the 1968 Rescue of Astronauts Agreement,[16]
1972 Liability for Damage Caused by Space Objects Convention,[17]
the 1974 Registration of Objects in Space Convention,[18]
and the 1979 Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies (the Moon Treaty).[19] Beside these multilateral agreements, there
are numerous regional and bilateral agreements on outer space cooperation,
research and communications.
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, equipments 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.
[1] See generally B. Cheng, Studies in International
Space Law, oxford (1997); C.Q. Christol, Space Law, Deventer
[2] See Shaw, pp. 463-5.
[3] Text in 15 U.N.T.S. 295.
[4] The 1944 Chicago Convention on International
Civil Aviation art. 1.
[5] Id. art. 2.
[6] Id. art. 1.
[7] Id, arts. 17-21.
[8] Id. art. 6.
[9] Id. art. 5.
[10] Id.
art. 3(a) & (b).
[11] Id.
art. 3(c).
[12] See
e.g. G.A. Res. 1721 (XVI); G.A. Res. 1884 (XVIII); and G.A. Res. 1962
(XVIII).
[13] Text in
610 U.N.T.S. 205.
[14] See
Bledsoe & Boczek, p. 176.
[15] Text,
supra note 13.
[16] Text in
63 A.J.I.L. (1969) 382.
[17] Text in
10 I.L.M. (1971) 965.
[18] Text in
1023 U.N.T.S. 15.
[19] Text in
18 I.L. M. 1434.
