International Air and Space Law

Today, Air Law refers to the rules on the legal status of the national and international air space, aircraft and the management of aviation. Regarding aviation, aviation law creates a special regime to deal with air transportation, carriage, navigation, security, insurance, the liability of the carrier and product liability.

Nowadays, Space Law refers to the legal status of outer space and the celestial bodies, space object and the fundamental principles governing space activities.

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 (Giemulla, 2011: 6 -7).

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 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.

According to Article 43 of the Chicago Convention, the Organization is made up of an Assembly, a Council, and the necessary bodies (The Air Navigation Commission, The Secretariat)

SARPs: Standards and Recommended Practices are an element of the safety management of civil aviation. It aims to provide assistance to States to manage aviation safety risks in cooperation with their service providers. In this way this attempt supports the strategy to improve the safety performance of civil aviation (Weber, 2017: 17).

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 (Diederiks-Verschoor, 2006: 17 – 19).

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 (Milde, 2014: 37 - 42).

The horizontal boundary between national air space and international air space is the boundary between territorial waters and the areas beyond territorial waters. However, the vertical boundary between air space and outer space is still under discussion. The vertical boundary issue will be addressed in the following chapter on space law.

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.”

The Chicago Convention only applies to civil aircraft. Therefore, the Convention makes a clear distinction between civil and State aircraft, and leaves State aircraft out of its scope. The Article 3/b of the Chicago Convention defines State aircraft as “aircraft used in military, customs and police services (Milde, 2014: 63 – 64).

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 (Diederiks-Vershoor, 2006: 197 – 200). ANS is an internationally defined system that is implemented domestically.

IATA The International Air Transport Association is a trade association for airlines in the world. Only airline companies can be a member of the Association. The aim of the Association is to promote safe, efficient, reliable and economical air transportation service for the travelers. It provides standards, manuals and guidelines for its members to achieve its goal.

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

The Beijing Convention has replaced the Montreal Convention and the Air protocol. And, The classical extradition rules do not permit States to extradite a person whose crime is committed for political purposes. However, the Beijing Convention brings a different aspect to the classical extradition rule, and it excludes the political offense exception. 

• 1967 Outer Space Treaty
• 1968 Rescue Agreement
• 1972 Liability Convention
• 1975 Registration Convention
• 1979 The Moon Agreement

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

Article 11 of the Moon Agreement prohibits property rights on the surface, subsurface and natural resources of the Moon. The principle permits the establishment of a facility on the Moon and property rights on the facility shall not be affected. However, the surface and subsurface underneath the facility shall not be subject to property rights.

Kessler Syndrome was proposed by the American scientist Donald Kessler. According to Kessler’s theory, increase of space debris in the Earth orbit might trigger a chain reaction of collusion and create even more space debris.

The LEO is between 200 - 5.500 km above the earth. It is used for communication and navigation satellites, and space missions like International Space Station (ISS). The GEO is at the altitude of 36.000 km. It forms a circle around the equator from west to east. It is a very crowded orbit, and used for telecommunications, meteorology and remote sensing satellites.

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 again

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.