Chapter 5: International Air and Space Law

International Legal Instruments for Air Space and Aircraft

After the development of aircraft technology, the first conference was organized in Paris in 1910. The Conference focused on neither the sovereign rights of States over their territory nor the freedom of use of air space. States agreed on the topics of the nationality of aircraft, registration of aircraft, certification of aircraft, licensing of the flight crew, rules of the air, customs procedures, etc. However, the Convention failed to enact an international convention.

Legal Instruments before the 1944 Chicago Convention

In this period, the 1919 Paris Convention, the 1926 Madrid Convention and the 1928 Havana Convention were adopted.

1919 Paris Convention recognized the sovereignty of States over the air space above their territory. The other important provision was on the right of innocent passage in time of peace for all States. Furthermore, prohibited zones, registration and nationality of aircraft, certificates of airworthiness and competency, the regime for international airways, cabotage and legal regime of State aircraft were the matters addressed in the Convention. The Convention established an institution to manage air navigation: International Commission of Air Navigation operated under the direction of the League of Nations. The

1926 Madrid Convention was adopted in the Ibero- American Aviation Congress organized by Spain in Madrid. The Convention was ratified by Argentina, Costa Rica, Dominican Republic, El Salvador, Mexico, and Spain. However, it never came into force. It did not bring further legal regime than the Paris Convention anyway since the articles were similar to the articles of the 1919 Paris Convention.

The 1928 Havana Convention was adopted in the Pan- American Conference organized by the Commercial Aviation Commission of the PanAmerican Union in 1928. The USA and sixteen Latin American States, except for Argentina, Paraguay, and Peru, were the parties of the Convention.

1944 Chicago Convention on International Civil Aviation

The vital rules of the Chicago Convention are sovereignty on air space, territory, the legal status of civil and State aircraft, scheduled and non-scheduled air services, cabotage, prohibited areas, registry and nationality of aircraft, customs and immigration, requirements to be fulfilled concerning aircraft and so on. Furthermore, the Convention established the International Civil Aviation Organization.

The International Civil Aviation Organization (ICAO)

It was established by the Chicago Convention in Part II. It is an international organization with an international personality and is one of the specialized agencies of the United Nations. Its permanent seat is in Montreal, Canada, as decided on 6 June 1946. Over the years, Regional offices have been established in different parts of the world. The objective of the Organization is to:

• ensure the safe and orderly growth of international civil aviation,
• encourage the design and operation of aircraft for peaceful purposes,
• encourage the development of airways, airports, and air navigation facilities,
• meet the need for safe, regular, efficient, and economical air transport,
• prevent economic waste caused by unreasonable competition,
• ensure the rights of States,
• ensure fair opportunity for each State to operate an international airline,
• avoid discrimination between contracting States,
• promote the safety of flight in international air navigation,
• promote the development of international civil aeronautics.

The Assembly

The Assembly consist of all member States of ICAO. The assembly meets not less than once in every three years. Powers and duties of the Assembly are to elect the member States to be represented on the Council, examine and implement the reports of the Council, decide on any matter referred by the Council, determine its own rules of procedure, establish a subsidiary commission if it is necessary, approve the budget of the Organization, review expenditure and approve the accounts of the Organization and so on.

The Council

The Council of ICAO consists of 36-member States. They are elected by the Assembly for a three-years term. Members States of the Council represents all major geographic areas of the world. Functions of the Council are submitting annual reports to the Assembly, carrying out the directions of the Assembly, appointing and defining the duties of the Air Transport Committee, Committee on Joint Support of Air Navigation Services, the Finance Committee, the Committee on Unlawful Interference, the Technical Cooperation Committee and the Human Resources Committee, administering the finances of ICAO, appointing the Secretary-General of the ICAO, adopting Standards and Recommended Practises and Procedures for Air Navigation Services (SARPs) and incorporating them as Annexes to the Chicago Convention, arbitrating the matters between the member States regarding aviation and the implementation of the Convention and so on.

The Air Navigation Commission

The Air Navigation Commission was established by the Council. It is composed of nineteen members selected by the Council. They do not represent their respective States in the Commission. Rather they use their expertise for the betterment of international civil aviation. The Commission works on (SARPs) and recommends for adoption by the Council. It also manages the technical work program of the ICAO. The commission has three sessions each year, and each session lasts nine weeks.

The Secretariat

The Secretariat is headed by the SecretaryGeneral. The Secretariat has five bureaus such as the Air Navigation, the Air Transport, the Technical Cooperation, the Legal Affairs and External Relations and the Bureau of Administration and Services. The Secretariat is responsible for the registration of the treaties and takes necessary actions when the ICAO is selected as the depository for an international treaty. It also coordinates the relationship between States or international organizations and the ICAO.

Legal Regime of Air Space

The legal regime of the air space and the air territory of States are defined by the Chicago Convention. According to Article 1 of the Convention, “the contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.”

National Air Space

In the following Article 2, national air space is defined as the air space above the national territory and territorial waters. States have exclusive and complete rights on their national air space. In principle, States can use their air space without any limitation or intervention from any other authority like cabotage. States have the authority to give permission to scheduled air services, and States can identify prohibited areas and search air crafts in certain conditions

International Air Space

International air space can be defined as the air space beyond the national air spaces of each State, or the air space above the areas of the sea beyond territorial waters. Therefore, the air space above high seas, as well as the contiguous zone beyond territorial waters, international straits, exclusive economic zone, and continental shelf are considered to be international air space. The international air space is a res communis area. On the international air space, no State has any sovereign powers or rights. Each State has the freedom of overflight in international air space. However, some of the sea areas have their own passage regimes for ships and aircrafts.

Legal Regime and Operation of Aircraft

This section of the chapter defines what an aircraft is, and it deals with issues such as the registration and nationality of an aircraft as well as the aspects of operating an aircraft. Besides the ICAO regulations and principles, the Chicago Convention, the International Air Services Transit Agreement, and the International Air Transport Agreement shed light on these issues.

Aircraft

According to the Annex 7 to the Chicago Convention, an aircraft is defined as “Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface.” An aircraft has to be registered to be able to operate. Therefore, the Chicago Convention regulated registration and nationality of aircrafts. According to Article 19 of the Convention, each State shall establish a national registry system, and the system shall be in accordance with the Convention. An aircraft cannot be registered to multiple States. However, the State of registry can be changed from one State to another State. As for the nationality of aircraft, Article 17 provides that “aircraft have the nationality of the State in which they are registered.”

Operation of Aircraft

Operation of aircraft consist of two aspects: International Air Navigation Service and International Air Transport. Air navigation is a service for the safe operation of air transportation. An air navigation service (ANS) supplies safe and efficient infrastructure such as air traffic services (ATS), air traffic flow management, air space management, air traffic management, communications, navigation and surveillance, global navigation satellite system, aeronautical information service, aeronautical meteorological service, and search and rescue.

The functioning of ANS has legal and service aspects. According to the Chicago Convention, States shall provide navigational services and put them into operation for ANS. For this purpose, airports, radio services, meteorological services, and other air navigation to facilitate international air navigation are defined as navigational services (Article 28/1).

Aviation Security

In recent years, civil aviation has been encountering with the threats of terrorism or any other unlawful activities. For the sake of aviation security, several international treaties have been enacted under the auspices of the ICAO such as:

• the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft (The Tokyo Convention),
• the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft (The Hague Convention),
• the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (The Montreal Convention),
• the 2010 Beijing Convention on the Suppression of Unlawful Act Relating to International Civil Aviation (The Beijing Convention) are some of them

The Tokyo Convention includes some basic rules for public order on board in the case of a civil aircraft operating internationally. It applies to criminal offenses and actions which jeopardize the safety, order, and discipline of aircraft onboard or safety of people on board.

According to the Hague Convention, unlawful acts against aircrafts are unlawfull seizes or exercises of control of the aircraft or attempt to control that aircraft (by force, threat of force or intimidation). Accomplice of a person who performs or attempts to perform an unlawful act is also responsible under the Hague Convention. In principle, State of registry has jurisdiction over civil aircrafts. However, other States might have jurisdiction over an aircraft under certain circumstances (Article 4).

The Montreal Convention criminalizes more actions against civil aviation in comparison to the former conventions regarding aviation security. Criminalized actions defined in the Convention are acts of violence against a person on board, destruction of an aircraft in service, causing damage to an aircraft which renders it incapable of flight or which is likely to endanger safety in flight, places or causes to be placed on an aircraft a device or substance which is likely to destroy aircraft, destroy or damage air navigation facilities or interferes with their operation, communicates information endangering the safety of an aircraft in flight. Attempt or abetment of the crimes defined above is also punishable under the Convention.

The Beijing Convention includes new crimes in light of the needs of international society against recent threats for civil aviation. The crimes defined by the Convention are as follows:

• using civil aircraft in service for the purpose of causing death, injury, or damage,
• using dangerous substances to attack aircraft or other targets,
• unlawful transport of BCN weapons and related material,
• cyber attacks on air navigation facilities,
• threats to commit the offense,
• assisting an offender,
• agreement or contribution to an offense,
• liability of a legal entity involved with an offense,
• organizing or directing an offense.

The Beijing Convention, however, excludes military activities. Therefore, there is no criminal responsibility if the offences are carried out for military purposes.

The United Nations Treaties on Outer Space

At the beginning of the space activities, there was a legal lacuna regarding space. Development of the activities emerged the need for a legal system. At this point, outer space and space activities took the attention of the United Nations. Thanks to the UN, five legal principles and five treaties were set to govern outer space and outer space activities.

1967 Outer Space Treaty

The first UN Treaty on outer space is the Outer Space Treaty (OST). It is based on the “Declaration of Principles Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space” of the UN General Assembly. OST was adopted with unanimity at UN General Assembly in 1966, entered into force in 1967. The Treaty mainly provides basic principles of the legal regime of space and space activities and lays the legal basis for other space treaties.

1968 Rescue Agreement

The issues of rescue and return of astronauts and the return of space objects were included in the first declaration and then regulated in the OST. However, it took five years to finalize the final draft and submit it to the UN General Assembly, which adopted the Agreement in 1967.

1972 Liability Convention

It was adopted on 29 November 1971 by the UN General Assembly by the vote of 94 States in favor and 4 abstentions. The Liability Convention firstly defines basic notions such as damage, launching State and space object. Then, the liability for the damages occurred in outer space and the earth are regulated separately. Furthermore, the Convention provides a dispute settlement mechanism for the compensation of the damage caused by a space object.

1975 Registration Convention

The Convention was adopted by the UN General Assembly without a vote in 1974 and entered into force in 1976. In the Registration Convention, notions such as launching State, space object and State of registry are defined. According to the Convention the term space object consists of component parts of the state object, its launch vehicle and the components parts of the launch vehicle. As for State of registry means a launching state which registers the space object. The registry system classified as an international and national registration systems.

1979 The Moon Agreement

The Moon Agreement (MA) was adopted without a vote by the UN General Assembly in 1979. The Agreement aims to address the Moon and celestial bodies in detail, to prevent the moon and celestial bodies to be an area of international conflict, to ensure equal utilization of the Moon and the other celestial bodies for the benefit of humankind. It provides more progressive provisions and concepts in comparison to the OST. It brings the “common heritage of mankind” principle and slightly regulates the exploitation of natural resources of the moon and other celestial bodies.

Outer Space Principles of the United Nations

The Principles are especially adopted for the activities which were not addressed in the UN Space Treaties. Only the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space formed a basis for the OST, and principles of the Declaration were internalized by the Treaty.

Legal Regime of Outer Space and Space Activities

The UN Space Treaties and the principles are the legal basis of the legal regime of outer space and space activities. The purpose of the legal regime is to ensure that space activities are carried equally for the benefit of mankind, for peaceful purposes and so on. To put it another way, the legal regime of outer space and space activities protects international public order and public interests.

The Legal Regime of Outer Space: Sovereignty on Outer Space and Celestial Bodies

Article 1/1 of the OST prescribes that “… the Moon and other celestial bodies … shall be the province of all mankind.” Furthermore, the Treaty strictly prohibits the sovereignty of States with the non-appropriation principle: “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” (Declaration Principle 3, OST Article 2).

Boundary Between Air Space and Outer Space

The definition of the boundary between these spaces is important because the respective legal regimes of air space and outer space are different.

There are different approaches to the delimitation of air and outer space. These approaches are classified as spatial approach and functional approach. The spatial approach suggests that a physical line must be set between air space and outer space. For instance, Von Karman suggested that the line between air space and outer space must be at an altitude of 100 km. He based this line according to the highest altitude that an aircraft might fly. In contrast to the spatial approach, the functional approach does not accept any boundary between air and outer space. Instead, it offers a distinction between air space and outer space activities.

The Legal Regime of Space Activities

Among others, the legal regime of space activities involve such issues as the freedom of exploration and use of outer space, peaceful use of outer space, international liability for the damages caused by a space object, registration of space objects as well as rescue and return of astronauts and space objects. This section of the chapter briefly explains each of these issues.

Freedom of Exploration and Use of Outer Space

According to Article 1 paragraph 2 of the OST, “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.” Furthermore, the same article provides in paragraph 3 that “There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourag.

Peaceful Use of Outer Space

The vital issue for the exploration and use of space is its purpose. During the Cold War and the space race, the sensitive issue was a possibility of the beginning of a space war. Therefore, the peaceful uses principle is employed as a preventive tool for the use of force in outer space or through outer space. Firstly, the placement of nuclear weapons or any other kinds of mass destruction weapons in orbit around the Earth, and installation or station of such weapons on celestial bodies are prohibited.

International Liability for Damages Caused by a Space

Object International liability for space activities is a claim for the damage to a State party or its natural or judicial persons. As for space activities, liability renders from the damages caused by a space object of the launching States. Liability for space activities has three elements: Damage, launching State and space object. These elements are defined by the Liability Convention. According to the Convention, the damage is defined “loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations.”

The Convention prescribes two different liability regimes for the damage occurred on the surface of the Earth and on elsewhere than on the surface of the earth. It gives absolute liability for the damages occurred on the surface of the earth (Article 2). As for the damages occurred elsewhere than the surface of the earth, the liability is the strict liability regime (Article 3).

Registration of Space Objects

The Registration Convention provides two registration regimes: National registration and international registration. The launching State is free on how to establish its national registry and its content. However, it is obliged to register the space object launched into earth orbit or beyond (Article 2 – 3). The launching State is also obligated to submit some information regarding its space object to the international registry. Besides, State of registry shall inform the Secretary-General of the UN as soon as possible when the space object is no longer in the earth orbit.

Rescue and Return of Astronauts and Space Objects

According to Article 5 of the OST, astronauts are regarded as “envoys of mankind in outer space.” As being the envoys of humankind, they shall be assisted as much as possible in the event of accident, distress, or emergency landing. After the landing, astronauts and space objects shall be returned to the State of registry safely and promptly.

If an accident, distress, or emergency landing has occurred in its territory, on the high seas or in any other place not under the jurisdiction of any State. Another obligation is taking the necessary steps immediately to rescue the crew and render them all necessary assistance. Launching authority and the Secretary-General shall also be informed about the precaution and the progress by the member State. (Article 2-3).

Developing Space Activities and Space Law

Treaties and principles established the legal regime of outer space and space activities considering the present activities at that time. However, space technology is developing since the beginning of space activities. Within years new space activities have arisen and so do the new legal questions.

Space Debris

Space debris is a general term referring to all tangible man-made materials in space other than functional space objects. Debris thus includes spent satellites themselves, ejected instrument covers, upper stages (orbital transfer stages), fragments thereof, and so on.

Space debris is dangerous because it can crash to Earth, puts human space activities and life on Earth at risk. Space debris is very difficult (if not impossible) to clean up and the amount of it is increasing steadily despite the decline in the number of launches per year.

In Article 9 could refer to the creation of space debris, and prohibition of creation of space debris. The liability of damages caused by space debris is under discussion with respect to the Liability Convention. The discussion is about whether space debris can be qualified as a space object for the purposes of the Liability Convention or not. If not, the most common and hazardous form of potential damage related to space activities would then fall wholly outside the scope of any space treaty.

Space Tourism

Space Tourism is a growing industry. It has started with the travel of “non-professionals” to the ISS in 2001. So far, seven people were able to visit the ISS.

The technological development for space travel brings some legal questions such as:

• applicable law to the activity, whether space law or air law,
• the legal status of space tourists,
• the definition and the legal status of the vehicle designed for orbital and suborbital flights,
• the registration of the vehicle designed for orbital and suborbital flights,
• obligations
• liabilities against third party.

There are two types of legal status envisaged for space tourists: Long-term orbital visit participants and short-term suborbital flight passengers. For the long-term orbital visit, the participant is considered as “envoys of mankind” like astronauts. For the short-term suborbital flights, the passengers are not considered as astronauts, however they enjoy the same rights of astronauts during their short-term visits.

The registration of a space vehicles carrying space tourists depends on the definition of space tourism activities. If suborbital flights and orbital flights are deemed to be a pure space activity, registration system of space law should be applicable for these vehicles.

As for the liability, the Liability Convention would also be applicable, f space vehicle causes damage on the surface of the earth or elsewhere than the surface of the earth to a State or the nationals of the State.

Space Mining

Space mining is becoming a reality more than a fiction. Researches being conducted on asteroids and the Moon reveal that the earth may solve the future threat of exhaustion of natural resources. So far, there is no attempt to commercially mine any resources, but there are companies which are conducting research and developing their technology for the future.

Due to the lack of an established legal regime pursuant to space mining, the USA and Luxembourg legislated their space mining codes in 2015 and 2017 respectively. The codes basically allow companies to mine space resources, and stipulate conditions of space mining activities.