(..12..)
Air Law / Law Relating To Outer Space
QUESTION BANK
- 1. ‘The law relating to outer space is in its infancy’ comment.
- 2. Write a full note on the basic principles of Air law.
- 3. Explain the concept of Outer Space. What are the basic principles of Outer Space Law?
- 4. Write basic principles of ‘Air law’ and ‘Outer Space Law’.
- 5. Explain the concept of “Air law’. What are the basic principles of Air law?
Short Notes
- Five freedoms of air.
- The basic principles of air law.
- Basic principles of outer space law.
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 state belongs to air space within its geographical area. 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.
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 passing of 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 United Nations General Assembly. 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 treaty proved to be a landmark in establishing a 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 other celestial bodies shall be carried out for the benefit and in the interest of all countries, 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)-
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 object or person therein is found beyond the limits of that state’s space, 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 carrying out such activity, the organisation and the state party to that activity are responsible for it.
(6) Assistance to Astronauts, etc., of Space Craft-
Astronauts are treated as an envoy of humankind in outer space. States shall render 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, avoiding ownership of any state over outer space, the moon, or other celestial bodies.
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 sovereignty over the Air Space above its territory and territorial waters, whereas, according to 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 treaties are binding on 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) contracting states 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 regarding International Air Transport was concluded in Warsaw in 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 that freedom is available to civil aircraft. Contracting states 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[1]–
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[2]–
As per this freedom, one contracting state grants another contracting state the right to land in its territory for non-traffic purposes. It means the flight can stop for fuelling or in any emergency circumstance.
iii) To disembark traffic[3]–
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[4]–
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).
v) To Carry Traffic between two foreign states[5]–
The fifth right concerns boarding and un-boarding passengers, 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.
*****
[1] न थांबता उडडृानाचा अधिकार
[2] गैरप्रवाषी कारनासाठी थांबा घेउन उडडान
[3] प्रवाषी उतरविन्यासाठी थांबने
[4] प्रवाषी भरन्यासाठी थांबने
[5] दोन ईतर देषांत प्रसाषी वाहतुक