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“Law Master’s” Publication
“Air Law/ Outer Space”
Prof. S.D. Bhosale
(..12..)
Air Law / Law Relating To Outer Space
QUESTION BANK
Q. 1. ‘The law relating to outer space is in its infancy’ comment.
Q. 2. Write a full note on the basic principles of Air law.
Q. 3. Explain the conceptofOuter Space. What are the basicprinciplesofOuter Space
Law?
Q. 4. Write basic principles of ‘Air law’ and ‘Outer Space Law’.
Q. 5. Explain the concept of “Air law’. What are the basic principles of Air law?
Short Notes
1.
2.
3.
Five freedoms of air.
The basic principles of air law.
Basic principles of outer space law.
SYNOPSIS
A. Outer Space.
I. Introduction-
II Law on Outer Space-
Rules and Regulations as to Outer Space-
(1) Freedom of Exploration and use of Outer Space (Art. I)-
(2) Non-Appropriation or Sovereignty on outer space (Art. II)-
(3) Peaceful use of outer space (Art. IV)-
(4) Jurisdiction and Control over objects launched (Art. VIII)-
(5) State’s Responsibilities for activities in outer space-
(6) Assistance to Astronauts etc. of Space Craft-
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Prof. S.D. Bhosale
(7) Offer the Opportunity to observe Space Craft (Art. X)-
B. Air Space.
I. Meaning of ‘Air Space’ –
II. Law Relating to ‘Air Space’ –
1) Aerial Navigation Convention of Paris 1919-
2) Havana Convention 1928-
3) Warsaw Convention 1929-
4) Chicago Convention 1944-
Five Freedoms laid down by these conventions are as follows-
i) To fly without landing-
ii) To land for non-traffic purposes-
iii) To Disembarked traffic-
iv) To board traffic for the home state-
v) To Carry Traffic between two foreign states-
A. Outer Space
I. Introduction-
It is very important to study International Law regarding Space. We must
understand concepts like ‘Air Space ’and ‘Outer Space’ to do so.
‘Air Space’-
‘Air Space’ is ‘the space of air around the earth’. ‘Outer Space’ starts where air
space ends.
The statebelongs to airspace within its geographicalarea. However, ‘Outer Space
is for the use and benefit of all states’.
Law on outer space is laid down to some extent; however, the law regarding the
limit of ‘air space’ is not laid down. By law, it is uncertain when ‘air space’ ends and
‘outer space starts’. This is because the atmosphere around Earth does not end abruptly.
According to some states like Argentina, Belgium, France, Italy and Mexico, air
space ends at 100 kilometres from where the lower boundary of outer space starts.
However, for many other countries, this limit is not acceptable. Therefore, a frontier
between Earth’s air and outer space has not been determined for Legal purposes.
II. Law on Outer Space-
The International Community gave attention to making laws relating to outer
space after 4th October 1957, when the U.S.S.R. had launched its first satellite, Sputnik,
into orbit. Thereafter, some other states launched some manned and unmanned satellites
into outer space and on celestial bodies.
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“Air Law/ Outer Space”
Prof. S.D. Bhosale
Therefore, the need was felt to make rules and regulations as to ‘outer space’.
Thereafter, the United Nations made some rules and regulations for using outer space.
Rules and Regulations as to Outer Space-
Outer Space Treaty 1967.-
Before the passingof the treaty, the question of outer space was considered by the
United Nations in 1958, 1959, and 1962, wherein the UN recognised the peaceful use of
outer space for the interest of mankind.
The Treaty on Outer Space was adopted unanimously on 19th December 1966 by
the UnitedNations GeneralAssembly. The Treaty was named “The Principles Governing
the Activities of States in the Exploration and Use of Outer Space, including the Moon
and Celestial Bodies”, commonly known as the ‘Outer Space Treaty’.
Most of the earlier declarations were incorporated into the Treaty, which came
into force on 20 October 1967.
The treatyprovedto be a landmark in establishinga legal regime in ‘Outer Space’.
The treaty laid down the following principles relating to the activities in outer
space, celestial bodies and the Moon-
(1) Freedom of Exploration and Use of Outer Space (Art. I)-
As per Art. I, ‘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 the
basis of equality and in accordance with International Law, and there shall be free access
on all areas of celestial bodies. The exploration and use of outer space, the Moon and
othercelestialbodiesshallbecarriedoutfor the benefitandin theinterestof allcountries,
irrespective of their degree of economic or social development.
Thus, every state is free to launch objects into outer space.
(2) Non-Appropriation or Sovereignty in outer space (Art. II)-
No area of outer space, the Moon or other celestial bodies can be appropriated by
any state. No state can claim sovereignty over them by means of use, occupation or by
any other means.
(3) Peaceful use of outer space (Art. IV)-
Art. IV further states that the state shall use outer space, the Moon, and other
Celestial Bodies exclusively for peaceful purposes. Therefore, the establishment of
military bases, installations, and fortifications, as well as testing of any weapons and
conducting military manoeuvres on celestial bodies, shall be prohibited.
The treaty further prohibits placing in orbit around the Earth any objects carrying
nuclear weapons or any other kind of weapons of mass destruction.
(4) Jurisdiction and Control over objects launched (Art. VIII)-
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“Air Law/ Outer Space”
Prof. S.D. Bhosale
The state that has launched an object into outer space shall retain jurisdiction and
control over that object and any personnel thereof while in outer space or on a celestial
body.
Thus, if any objectorpersonthereinisfoundbeyondthelimitsof thatstate'sspace,
the state that has found such object or personnel shall return them to the launched state.
(5) State’s Responsibilities for activities in outer space-
The state carrying out activities in outer space is responsible for all activities
carried out by the government and non-government organisations in outer space.
If an international organisation is carryingout such activity, the organisation and
the state party to that activity are responsible for it.
(6) Assistance to Astronauts, etc., of Space Craft-
Astronautsaretreatedas anenvoyof humankindin outerspace.States shallrender
all possible assistance to astronauts in the event of accident, distress or emergency
landing.
(7) Offer the Opportunity to observe Space Craft (Art. X)-
The state which has launched the spacecraft needs constant observation of the
craft. However, it is not practicable to observe the craft from the location of one state
only. Therefore, the treaty provides that the state should consider, based on equality, any
request by another state that has launched a spacecraft to allow observation of the flight
of space objects launched by that state.
Several conventions have been adopted by the General Assembly to promote
cooperation between states in the activities to be carried out in outer space, e.g. The
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into Outer Space (1968), The Convention on International Liability
for Damage Caused by Space Objects (1971), The Convention on the Registration of
Objects Launched in Space for the Exploration and Use of Outer Space (1974), The
Agreement Governing the Activities of State on the Moon and other Celestial Bodies,
1979, Vienna Conference on the Exploration and Peaceful uses of Outer Space (or
UNISPACE) 1982, and International Space Year1992.
The General Assembly of the UN has also made efforts to prevent the prevention
of Arms Race in Outer Space.
Thus, the United Nations General Assembly has made tremendous efforts to
protect outer space, and the Moon and Celestial Bodies have formed an arms race. The
Assembly has assured peaceful exploration and use of outer space for the benefit of
humanity, avoidingownership of any state over outer space, the moon, or other celestial
bodies.
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B. Air Space
I. Meaning of ‘Air Space’ –
‘Air Space’ means “the portion of the atmosphere controlled by a country above
its territory, includes its territorial waters or, more generally, any specific three-
dimensional portion of the atmosphere”.
However, according to some experts, ‘Air Space’ means all above the earth’s
surface in which man-made instruments and aircraft (whether controlled or not) can be
in operation at any given time. At the same time, others say that ‘Air Space’ means
‘unstable Space’.
II. Law Relating to ‘Air Space’ –
There is great controversy about the exact law on ‘Air Space’. This controversy
led to the development of different theories. According to one theory, every state has
complete and executable sovereigntyover the Air Space above its territory and territorial
waters, whereas, accordingto another theory, sovereignty is limited to a specific height.
The theory of full and absolute sovereignty of each state in the Air Space above
its territory found its universal agreement after the Second World War.
All these conventions or treatiesare bindingon the signatory states or those states
that have subsequently ratified them. We will discuss some of these conventions as
follows-
1)
Aerial Navigation Convention of Paris 1919-
This Convention laid down rules for aerial navigation in times of war.
The Convention laid down rules as to (i) registration of aircraft, (ii) Bearing registration
marks, nationality, and names of residence of its owner, (iii) Carrying relevant
documents, (iv) For the establishment of the International Commission on Air
Navigation, (v) contractingstates recognised complete and exclusive sovereignty of the
state over the air space over its territory, but agreed to allow innocent passage in time of
peace through their air spaces, to the aircraft etc. Moreover, the state further agreed that
the passage of an aircraft for military reasons or in the interest of safety could be
prohibited.
2) Havana Convention 1928-
In 1928, in Havana, a number of American States concluded a convention on
commercial aviation, which was meant to be similar to the Paris Convention.
3) Warsaw Convention 1929-
A Convention regardingInternational Air Transport was concluded in Warsaw in
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“Air Law/ Outer Space”
Prof. S.D. Bhosale
1929. The Convention laid down Uniform rules regarding international carriage by air.
However, the Montreal Convention, signed in 1999, replaced the Warsaw Convention.
4) Chicago Convention 1944-
The Chicago Convention of 1944 is the most important treaty and convention
relating to aerial navigation. It was signed by 53 states and came into force on 14 April
1957.
Chicago Convention contains 93 Articles. The object of this convention was to i)
Develop International Civil aviation in a safe and orderly manner, ii) establish
International Air Transport services on the basis of equality of opportunities, and iii) To
operate International Air Transport services socially and economically.
The most important rules in these conventions are the five freedoms of
International Air Transport. These Freedoms are available to Civil Aircraft and not to
State aircraft. ‘State Aircrafts’ means the aircraft used for military, customs and police
services.In short,we may say thatfreedomis availabletocivil aircraft.Contractingstates
recognise that every state has complete and exclusive sovereignty over the Air Space
above its territory.
The five Freedoms laid down by these conventions are as follows-
i) To fly without landing-
All Contracting states have the right to fly their civil aircraft (except scheduled
flights) into or in transit non-stop across the territory of another contracting State.
Provided the terms of conventions need to be fulfilled.
ii) To land for non-traffic purposes-
As per thisfreedom, onecontractingstategrants anothercontractingstatethe right
to land in its territory for non-traffic purposes. It means the flight can stop for fuellingor
in any emergency circumstance.
iii) To disembark traffic-
The third right is to put down the traffic in the first contracting state, which is
coming from the carrier's home state. This means Indian Aircraft can put down
passengers taken from India (Mumbai) to Paris (i.e., France).
iv) To board traffic for the home state-
The fourth important right is reversed to the third right. It means the contracting
state whose aircraft is flying can take passengers, mail and cargo from the Contracting
state to its’ home state. Indian Aircraft can take passengers, mail and cargo from Paris,
France, to India (Mumbai).
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“Air Law/ Outer Space”
Prof. S.D. Bhosale
The fifth right concerns boarding and un-boardingpassengers, cargo, mail, etc.,
taken from that state to any other foreign state and vice versa. For Example, Indian
Aircraft flying from America to France can board and onboard passengers, mail, cargo,
etc., in Spain.
In short, the last three freedoms are essential for commercial flights. The first two
rights are unanimously accepted by some states.
The International Civil Aviation Organization was established in 1947. Its
members include many states. The organisation has made many Air Transport and
International Air Traffic rules.
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