AIR AND SPACE LAW
By Dayal Legal Associates
*Corporate office- Dayal Legal Associates ALTF Global, 1st Floor, Global
Foyer Mall, Sector 43, Golf Course Road, Gurgaon, Haryana 122002, India.
(Near sector 42/43 Rapid Metro Station, Golf Course Road, Gurgaon)
*Litigation office- Chamber No 209, Block - 1 Shershah Road, Delhi High
Court, India Gate New Delhi, Delhi 110503, India Email: [email protected]
www.dayallegal.in
1
EDITORIAL TEAM
EDITOR IN CHIEF-Mr. Deepak Dayal
MANAGING PARTNER, DAYAL LEGAL ASSOCIATES
EDITOR Pushpit Singh
LEGAL RESEARCH HEAD, SOCIETY FOR LEGAL
RESEARCH AND EDUCATION
AUTHOR (KUMAR VAIBHAV) VIRTUAL LEGAL INTERN,
DAYAL LEGAL ASSOCIATES
2
AIR AND SPACE LAW
Law exists everywhere, in every fields. No matter where we are we have to follow the law of the land. In the same way there is an existence
of air and space law which mostly works for the satellites, planes, jet e.t.c. Air and space law plays a very important role in the world. It
prohibits any types of wrongdoing by anyone. We can easily decide our boundaries and then start following rules and regulations under
these boundaries. Since its inception, aviation has been subject to the general law, both International and domestic. The very first trace of
aviation law in history was on 13 April 1784, by the Paris Police, forbidding flights of balloons without a special permission. The 100-year
long history of space law is broadly international in character, where a large part of air law is either international law or international
uniform law. Space (outer space) law was an idea without shape or substance for more than 20 years and it was first mentioned in a journal
published in Paris in 1910. A few years after the Wright brother’s invention, the Paris Peace Conference, 1919, was convened and the
important issue of putting together an international air law code was entrusted to a special Aeronautical Commission of the Conference. The
first doctoral dissertation dealing with space law appeared in 1953. By 1954, expanding international exchanges were occurring among
jurists and commentators who were then concerned about the need for clarifications and definitions of law, for the anticipated human
activity in outer space. Significantly, when Sputnik-1 was launched on October 4, 1957, earlier proposed concepts were no longer
conceptual ideas. The Paris and Chicago Conventions of 1919 and 1944, respectively, recognized the exclusive sovereignty of states to the
airspace above their territory.
Development of space law during the 20th century evolved through four interrelated phases:
1. Development of concepts of space law earlier than Sputnik-1.
2. Clarification and adoption of basic applicable laws.
3. The increasing uses of international and national space laws. In addition, regulations to manage such uses, which has been a process
starting since the late 1950s.
The regulation of human activities beyond the atmosphere, including the eventual development of law to manage settlements and societies
existing off the Earth Regulation of such activities in space has only recently been seriously addressed.
At the meeting of the American Society (annual) of International Law in April 1956, an evening symposium was held on the topic of
―International Air Law‖. The annual International Astronautically Congresses held during the 1950s also had progressively increased
participation by lawyers addressing space law issues.
Neither international conventions nor customarily accepted practices have established a commonly acceptable line of demarcation between
air space and outer space. Although the debate continued about where outer space begins after airspace ends and, the issue of whether or not
sovereignty may be asserted in outer space has been generally settled by customary practice. The basics of private air law have been derived
from the Roman law. Likewise the origin of governmental regulations of aeronautical activities goes back to the era of balloon flight; and
those of public international air law (sovereignty) to the beginning of the 20th century when flight by heavier-than-air aircraft became
technically possible.
Significantly, the first concerted attempt at codification on an international scale took place before 1910, when German balloons repeatedly
made flights above French territory. The French Government was of the opinion that for safety and security reasons, it would be desirable
for the two governments to try to reach an agreement and to resolve the problem. As a result, the Paris Conference of 1910 was convened. It
prodded for the sovereignty of states in the space above their territories.
Treaty Law encompasses all international treaties in which multilateral conventions are the primary source of air law. It is important to note
that the rights of participants like - the state, the owner, the operator, the passengers, the owner of the on-board goods, the mortgage holders,
etc. are properly safeguarded by the achievement of the most important elements of Air Law. The provisions relevant to implementation are
also found in the international agreements and conventions themselves. Other classifications relevant for Air Law are bilateral instruments,
such as national Law, contracts between states and airline companies, or contracts between airlines companies, and general principle of
International Law. Within the framework of the newly created United Nations (UN), scholars from all corners of the world formulated many
legal principles and expressed them in several international treaties, agreements and declarations, laying the foundations for the international
law of space and outer space.
Air law and space law are distinct and separate branches of law, although they are occasionally treated as one ―Aerospace Law‖. Air law,
the older of the two, is the body of public and private law, both national and international law that regulates aeronautical activities and other
uses of airspace. Space law, on the other hand, regulates activities of states and private entities in outer space, primarily the use of
satellites.The essential difference between air law and space law stems from the legal status of airspace and of outer space. Whereas
airspace, except over the high seas and Antarctica, is under the sovereignty of subjacent states, outer space is governed by the regime of
freedom. The question of boundaries between airspace and outer space is awaiting international agreement; it is virtually certain, however,
that the boundary will not be placed higher than 100-kilometers above sea level.
Law relating to Aerial Navigation Modern aircraft routinely traverse international boundaries for private and commercial purposes. While
the safety and ease of air transportation make international travel simpler, it sometimes complicates things when it comes to legal questions.
For example if an aircraft that belongs to a US carrier is involved in an accident in France, Do US or French laws apply? How can an
aircraft with South African registry gain access to airports in Mexico. Over time, two distinct bodies of international aviation law have
developed—public and private international aviation law.
Public International Aviation Law
Public International Law, in an aviation context, refers to agreements and treaties among various nations related to issues such as:
3
i) Landing rights
ii) Over flight authorizations
iii) Security and registration
iv) Communications
The origin of public international aviation law is rooted in the period following the end of World War I. Before and during the war, aircraft
were largely viewed and known as military weapons. In the aftermath of the war, lawyers, judges, and politicians from all over the world
recognized the profound impact that air travel would have in challenging traditional notions of borders and ―ownership‖ of airspace. Some
of the more significant aviation treaties, conventions (international agreements), and compacts related to public aviation law are outlined
below.
(a) The Paris Convention, 1919
After World War I, the Paris Convention of 1919 was adopted. The Paris Convention marked the first formal efforts at establishing a rule of
law related to sovereignty over airspace, registration of aircraft, standards for pilots, and movement of military aircraft. The Paris
Convention also created the first formal organization for the oversight of international aviation activities, the Commission International de
Navigation Aerienne. Although the Paris Convention was a start in the right direction, it became apparent that more extensive cooperation
and legal infrastructure might be necessary to support a growing aviation industry. The Havana Convention of 1928 built on much of what
was started in the Paris Convention and established several new legal principles upon which international aviation would be governed .
(b) The Havana Convention, 1928
From second to 19th of May 1927 the states had met in Washington on the topic of the Pan-American Commission on the aerial and
commercial navigation, which had drawn up the project of Pan-American Convention of Aerial Navigation. The majority of the states
represented were the same ones that had come forward six months before for the Convenio Ibero Americano de Navegación Aérea
(CIANA) also called the Ibero-American Convention on Air Navigation, signed in Madrid in October 1926). The Pan American Convention
on Commercial Aviation had been finalized in Havana on early 1928 under the auspices of the Sixth Pan-American Conference (held in
Havana, Cuba, from 16 January to 20 February 1928). The United States and twenty other States located in the Western Hemisphere signed
the Convention on 20 February 1928. This new Convention weakened the International Commission for Air Navigation (ICAN‘s)
international stature.
(c) The Chicago Convention 1944
The most significant agreements in public international aviation law are discussed during the Chicago Convention of 1944. One of the most
noteworthy achievements of the Chicago Convention was the establishment of the International Civil Aviation Organization (ICAO), which
continues to operate today. When the Chicago Convention came into force in 1947, it resulted in the termination of the Paris Convention of
1919 and the Havana Convention of 1928. It is probably fair to state that the Chicago Convention created the foundation for our current
system of international transportation by air. The Chicago Convention states that each ―”state has complete and exclusive sovereignty over
the airspace above its territory”.
Although the multilateral Chicago Convention failed to create an open skies environment for international air transportation, it did spawn
several bilateral agreements (agreements between individual nations) that have effectively created a more open skies type of approach over
time. The first of these bilateral agreements was known as the Bermuda I agreement, entered into in 1946 and the sole parties involved were
the United States and Great Britain. The Bermuda I agreement permitted the airlines of United States and Great Britain to operate to and
from each country—but only to designated ―gateway‖ airports. Each airline was allowed as many flights as it desired.
(d) Open Skies Agreements, 1992
In 1992, in the United States, the Transportation Department initiated an ―open skies‖ initiative that would allow for a more liberal
framework for air route selection, capacity determinations, fare setting, and frequency of flights. The first open skies agreement was
introduced in October 1992 between the Netherlands and United States. Subsequently, the United States entered into open skies agreements
with 13 European states. Open skies agreements were signed by states such as Canada, South America, Peru, Malaysia, Taiwan, New
Zealand, and Singapore, among others.
II. Private International Aviation Law
Private international aviation law is the body of law relating to agreements and treaties between different countries in which the
responsibility of a party in one country to aviation injured party in another country can be established. In many ways, the development of
private international aviation law is an effort to sort out the uncertainties of jurisdiction and responsibility when persons from various
sovereign nations are involved in violation of aviation law. The formation of a body of private international aviation law began in 1925 at
the first Conference on Private Air Law, Paris. The conference established an International Technical Committee of Aerial Legal Experts.
This committee was charged with providing an ongoing study of the issues involved with private liability stemming from international air
transportation. The committee studied the legal landscape of international air transportation. The Warsaw Convention is the centre piece of
private international aviation law. It is discussed below along with some relatively new developments from the Warsaw Convention of 1929
and the Cape Town Convention of 2001.
a) The Warsaw Convention, 1929
The Warsaw Convention 1929 was adopted in a conference; however, subsequent protocols amended the original convention. Currently,
more than 135 nations are parties to the Warsaw Convention. The delegates to the Warsaw Convention had two major objectives. The first
4
was the creation of a uniform system of regulation for issues such as baggage transport, ticketing, movement of cargo, and claims by
passengers or customers concerning lost or damaged luggage or cargo. The second primary goal of the convention was to cap the amount of
damages an air carrier could incur in an accident with the offsetting limitation to the defenses that air carriers could invoke to avoid
responsibility. In the end, the main concern of the Warsaw Convention drafters was protection of the fledgling international air
transportation industry. However, Warsaw Convention, 1929 has been substituted by Montreal Convention, 1999 which has provided more
stringent provisions relating to aerial navigation.
(b) Cape Town Convention of 2001
This Convention provides significant help in satisfying the unprecedented demand for new aircraft equipment over the next twenty years,
with an estimated value exceeding US $1,200 billion.
CONCLUSION
Lastly I want to conclude my report note by stating that air and space law is as important as other law. It provides us a way of living and
surviving in the sky. Sky is as important as land and there should be made restrictions on the unlimited and unapproved uses of the sky.
Today the world is globalising and different countries uses different things to make themselves powerful. So, at this time it is most
important to analyse the importance of air and space law and always disallow the things which is against the protocols of this existing laws.
