1

INTRODUCTION
 2

DEFINING BORDERS OF AIR AND SPACE LAW

This introduction may also serve as a clarification of the question what air and space
law comprise. Many people are not so familiar with these branches of law, and may
consider them “esoteric”, “extravagant” or “ethereal”. This is also to explain that
there are a lot of concrete applications and implementations of these regimes. That is
increasingly true for space law and has been especially true for air law since a
number of decades.

Air law is connected with a myriad of areas of law, such as civil law and private
international air law in the context of the liability of the air carrier for damage
sustained in the course of carriage by air; criminal law, which found its way into air
law upon the occurrence of hijacking and other criminal acts committed on board
aircraft; the law pertaining to the financing of aircraft, and also space craft, and
related assets; tax law; competition law in the context of airline alliances; European
Community law and environmental law. I will discuss the latter two areas in
somewhat greater detail in the course of this article.

Space law is differently organized as compared with air law. It is basically a branch
of public international law. It borrows concepts from maritime law. Increasingly so
space law also involves other branches of law. For instance, on the International
Space Station, the criminal law of the state of the nationality of the offender applies.
As regards inventions made on board the International Space Station, an activity
occurring on a flight module shall be deemed to have occurred in the territory of the
State of registry of the module.

A thread running through this contribution concerns securing the rule of law in a
multilevel jurisdiction while crossing borders – not only physical and geographical
but also non-physical borders. Multilevel jurisdiction refers to the various levels of
jurisdiction to which economic and other activities are subjected. Those levels are
especially present in the European Community where national law, European
Community law and public and private international law increasingly interact.

To begin with reference is made to similarities and differences between air and space
law, a subject which was meticulously analyzed by Professor Direderiks-Verschoor.
 3

After that a discussion comprising of various Air Space law violations in India will
be done which will be displayed as a Case study to this project.
 4

STATEMENT OF OBJECT

The fact that Air and Space Law has been established on the international front is
commendable and its development has given boost to the most difficult task in the world.
Who would have thought that spending mere 300$ as expense will take us from one place to
another. Or that army will not walk towards the enemy country but fly. The speed of today’s
rocket and tomorrow’s superfast airplanes have defeated time and proved to be a worldly
factor. But till now, it has been guided by mere UN conventions and International laws. In
India, our Constitution has given Air space law an individual status by mentioning it in the
schedules but there is no particular way to regulate violations except mere investigations
and suspension. There have been various types and cases of violations that we will discuss
in our study. We will start from introduction to Air law and will gradually come to Space
law. Also we will highlight several current issues in our study dealing with the negative and
positive aspect of Air and Space law.
 5

Current Literature Review

As a first step in this activity, a literature review was recently conducted into Air and Space
laws World front, with an eye toward:
 Documenting current theoretical views on the role of Air and Space laws in human
development.
 How human developed Air and Space laws in the light of United Nation’s Conventions.
 Cataloguing and evaluating past research into the various conventions and treaties
between other countries and India.
 On the basis of the above, to provide a set law principle for capturing violations in the
said law and solutions or action taken by the concerned authorities.
 6

Issues Involved
 Questions as to development of Air Law
 Questions as to Space Law
 Issues regarding the negative and positive aspects of Air and
Space Law
 What type of violations comprise of in matters concerning Air and
Space Law
 What governs Air and Space Law
 Case study on different genres of Air and Space Violations in
India
 7

OBJECTIVE OF STUDY
Objective of this study is to ascertain true developing elements of Air and Space Law and to
come to a conclusion as to how much can we rely on international treaties and also looking
upon how our government has developed a system to regulate and prevent violations
concerning the security of its citizens and the machinery made by humans in its territory.

Also we will highlight recent violations under the Air and Space Laws concerning Indian
Territory and various conventions that became part of the territory’s support in running the
Air and Space objects efficiently.

We will also put up various news articles which will highlight the present position of
Aviation industry and working of the various authorities concerning Air and Space Law.
 8

RESEARCH
METHODOLOGY
The Methodology used in compiling the assignment on “Air Space
Violations in India” is the Doctrinal Methodology as well as
empirical method of research. The method of research used by me
includes in depth study from books, journals, articles and reports. I
have also used reports and articles available on various websites. I
have also used newspaper cuttings also.
 9

PROPOSED
CHAPTERIZATION

AIR LAW Page no. 11

THE BEGINNING OF AIR LAW 12
AIR AND LAW BEFORE AVIATION 17
MEANING OF SOVEREIGNTY IN THE AIR 19
SOVEREIGNTY IN AIR SPACE 22
TRESPASSING IN AIR SPACE 23
SPACE LAW AND AIR LAW 26
THEORIES CONCERNING AIR SPACE 30
POSITIVE ASPECT OF THE FREEDOM OF SPACE 34
NEGATIVE ASPECT OF THE FREEDOM OF SPACE 38
SPACE LAW 42
CONCEPT OF SPACE LAW 47
DEFINITION OF SPACE LAW 51
SOURCE OF SPACE LAW 54
INTERNATIONAL LAW AND SPACE LAW 59
PLACE OF SPACE LAW IN THE LEGAL SYSTEM 64
INTERNATIONAL COOPERATIONS WITH INDIA 68
VIOLATIONS OF AIR AND SPACE LAW IN INDIA 75

CONCLUSIONS & SUGGESTIONS 84

BIBLIOGRAPHY 85
 10

DEFINITIONS &
CONCEPTS
 11

AIR LAW
 12

THE BEGINNING OF AIR LAW

Its is generally agreed that the first piece of legislation connected with aviation was the
regulation made by the Paris police in 1784 prohibiting balloons fights without special
permits. Other European cities followed with similar enactments. But the question of an
international air law does not seem to have become a live one until
the end of the nineteenth century.

What made it so in the first instance were the military rather than the civil potentialities of
aviation. It is already referred to the provisions in the Declaration of Brussels that a person
was not to be considered as a spy merely because he passed over the enemy's lines in a
balloon. At the first Hague Peace Conference a declaration was signed in which the
contracting powers agreed to prohibit for a term of five years the discharge of projectiles
and explosives from balloons or by other new methods of a similar nature. It is reasonable to
that these other new methods included methods depending upon science of aeronautics,
although a power driven aeroplane had not yet flown. However the declaration was only to
be binding upon the contracting power in case of war between two or more of them and
even than not when one of the belligerents was joined by a noncontracting power. In the
declaration, which was ratified by twenty - four states (not including Great Britain) -
whereas the Brussels Declaration was never ratified - reference was made to the Declaration
of St. Petersburg of 1868 in this instrument the contracting parties, after referring to the
work of an international military commission which had fixed the technical limits at the
necessities of war ought to yield to the requirements of humanities had declared as follows:

1-Considering that the progress of civilization should have the effect of alleviation as much
as possible the calamities of war:
2-That the only legitimate object which states should endeavour to accomplish during war is
to weaken the military force of the enemy:
3-That for this purpose it IS sufficient to disable the greatest possible number of men:
4-That this object would be exceeded by the employment of arms which uselessly aggravate
the sufferings of disable men or render their death inevitable;
 13

The occasion of the St. Petersburg Declaration was that the Russians had developed a bullet
to be used for blowing up ammunition weapons. The bullet exploded on contact with even a
soft substance. The philosophy underlying the Declaration was that such explosive bullets
should be banned their use would cause unnecessary suffering to individual persons whom
they might hit. The Declaration however was drafted in such a way that the use of explosive
shells, designed to kill large numbers of men remained legal.

Also notwithstanding the humanitarian sentiments expressed in the preamble to the St.
Petersburg Declaration it would be erroneous to conclude that the use of any weapon which
than or thereafter should offend against those sentiments would be illegal. Declaration could
not do more than it purported to do, which was simply to ban the employment of bullets that
were both of small weight and explosive or charged with fulminating or inflammable
substances so far as new weapons are concerned their use in the absence of treaty provisions
is governed by the following two principles of customary international law viz:

1- A weapon is not necessarily illegal just because it is new;

2-The fact that it is not possible to exploit a new weapon (be it a submarine a form of bomb
or anything else) to the full without violating an existing rule of law is not a sufficient
excuse for violating that rule of law.

The situation created by the second of these two principles however imposes a great stain on
the law. It is best resolved by a specific agreement banning the use of the new weapon or if
that is not possible by some adjustment in the rules of war rendering legitimate at any rate a
restrained use of the new weapon. If agreement along either of these lines is not achieved
the tension is likely to be resolved in war by the weapon being used by both sides and if
existing riles are violated in the process by such use being justified as a reprisal for alleged
breaches of the law by other side.

At the Hague in 1899 it was felt the use of balloons for the purpose of discharging
projectiles was attended by too many uncertainties to be permitted. But the prospect that
greater accuracy might soon be obtained was also the reason for limiting the Declaration to
five years.
 14

It would be wrong to imagine that the sole preoccupation of those interested in air law at
this stage was with military questions. The fifteen years that elapsed between 1899 and the
outbreak of the First World War 1914 were indeed the great creative period of air law, and
the only real parallels we have to it are the enormous literary output
that there was in regard to the continental shelf just after the Second World War and that
there has been in regard to space law during the last decade. Among the pioneers of air law
the name of Paul Fauchille will always be remembered. This great French lawyer as the
rapporteur for the institute of international law on the subject entitled regime 'juridique des
aerostats submitted to the Brussels meeting of the institute in 1902 a draft code containing
thirty two Articles. The first seven Articles were given over to general provisions; article 8
to 20 prescribed for peacetime and the remaining articles concerned the laws of war.

What interest us most today about Fauchilles code is some of the first articles in the draft.
Article 1 for instance drew a basic distinction between public and private aircraft the former
category being further divided into 'military' and 'civil'. Article 2 required all aircraft to carry
the national colours in some convenient form. Article 3 forbade aircraft to wear colours
other than those of the nation to which they belonged. So far as private machines were
concerned aircraft would belong to a country by virtue of being entered on a register kept by
that country and in order to quality for admission to the register the owner commander and
three quarters of the crew of the aircraft must be nationals of the country concerned.

Only when he reached Article 7 did Fauchille broach the question of air space. Here he
prescribed as follows:

Fauchille justified by somewhat theoretical reasons his doctrine of the freedom of the air.
These were firstly that air because of its very nature was not capable of appropriate at all
and secondly that since a state could not occupy air, it could not be sovereign over it.
Similar theories had for centuries been put forward in support of the doctrine of the freedom
of the seas although in fact that doctrine had came to be accepted for the essentially practical
reason that it best suited the changing interests of the major maritime powers.

Fauchille was sufficient of a realist to comprehend that the states for whose benefit he was
preparing a code would never accept the freedom of the air in the extreme from that his
theories pushed to their logical conclusion, might demand. Even the freedom of the seas had
 15

become acceptable only by conceding to states wide powers over an area of sea adjacent to
their coast. And there were not lacking jurists who pointed out a state would be even more
concerned about what might take place in the air above it than in the seas off its coasts.
Fauchille proposed to meet this problem by conceding to the subjacent state extensive rights
in the air space immediately above it. These rights would not be rights of territorial
sovereignty but rights deriving ultimately from the principle of self - preservation.

Thus in article 8 to 11 of his code he would forbid navigation by foreign aircraft at heights
of less than 1500 meters above national territory or at distances of less than 1500 meters
from the coast. The distance was chosen for the practical reason that it was believed that
1500 meters was the maximum range at which worthwhile photographs of fortifications
could be taken. In Article 15 Fauchille suggested that in general crimes committed on board
foreign aircraft should be within the jurisdiction of the state of the aircraft but that the
subjacent states could punish crimes such as espionage and breaches of its custom and
sanitary regulation when committed in the air space above its territory. Such punishment
would however be based on the protective rather than the territorial principle of jurisdiction
because, according to Fauchille the superjacent air space was free and did not form part of
the territory of the state.

This theory of the "free air" died hard. It seems strange to us today it should have been so
strongly held. It may help to see things in perspective if we recall that the same view was
widely taken in regard to territory waters. We saw earlier that in earlier 1878, the British
parliament reversing;

THE QUEEN V. KENY; asserted that British territorial waters were such part of the seas
adjacent to the coast... as is deemed by international law to be within the territorial
sovereignty of her majesty. Yet as last as 1921 it was held by the German Reichsgericht that
German territorial waters were not, strictly speaking part of German territory" and as late as
1939 the civil tribunal of brest took the same view of French territorial waters.

In KENYON V. HART; a case concerning trespass to game Blackburn, j. referring to

another case cited by counsel said that case raises the old query of Lord Ellenborough as to
a man passing over the land of another in a balloon he doubt whether an action of trespass
would lie for it. I understand the good sense of the doubt though not the legal reason of it.
 16

In the UNITED STAES V. CAUSBY; the supreme court of the United states held that the
Government by low flights of its military aircraft over a chicken farm had taken an
easement of flights over the farm for which compensation must be paid. At the same time on
the general issue the court was caution. The court proceeded to hold that
flights over private land are not a taking unless they are so low and so frequent as to be a
direct and immediate interference with the enjoyment and use of the land. 8t if said the court
by reason of the frequency and altitude of the flights respondent could not use this land for
any purpose their loss would be complete. It would be as
complete as United States had entered upon the surface of the land and taken exclusive
possession of it.

In GRIGGS V. COUNTY OF ALLEGHENY; the supreme of the United States carried this
doctrine further holding that the operators of Greater Pittsburgh Airport had taken an air
easement over the property of a residence in the neighbourhood.

In SMITH V. NEW ENGLAND AIRCRAFT CO. the supreme judicial court of

Massachusetts considered more directly the question whether low flights across an owners
land constituted a trespass. It held that a private ownership of airspace extends to all
reasonable heights above the underlying land and therefore that after making every possible
reasonable legal concession to air navigation very low flights could amount to trespass.

In SWETLAND V. CURTISS AIRPORTS CORPORATION; the United States court of

appeals sixth circuit rejected the view that all decisions concerning air space must be
decided upon the theory of nuisance rather than that of trespass.
 17

AIR AND LAW BEFORE

AVIATION
 18

Prior to the invention of aviation the interest of jurisprudence in the air had been restricted
almost entirely to its aspects under civil law still works on air law and space law are often
willing to draw such conclusions from some of the tenets of roman law as are bearing the
character of international law.

Whenever the coupus juris cinilis deals with the concept of the air and of the sky it does so
in relation to rights in rem affecting the earth the air together with the running. waters equa
prfluens and the sea are under natural law the common property of all communia omnium'"
whosoever has a building lawfully higher the same h as the right to grant a servitude in
infinitely upwards." the tomb not only comprises the place holding the ashes but also
everything that lies above it up to the sky adcoelurn'". The sky above the public area shall be
free. Coelum quodsupra id solum intercedit liberum esse debet accursius gloss to the latter
tenect (Glossa Ordinaria 1228) laid down the thesis which was to become a disputed
problem of space law theory also. Cujus est solum ejus debet esse usque ad coelum. It
should be obvious in this context that this much quoted maxim _a mediaeval explanation of
a classical Roman law rule bears absolutely no relation to international law or even public
law i.e. the legal relation of the citizen and the state.

Grotius always speaks of the air as one of the things belonging to mankind in common.
"The extent of the ocean is in fact so great that it suffices for any possible use on the part of
all peoples for drawing water for fishing for sailing. The same thing would need to be said
too about the air if it were capable of any use for which the use of the hand also in not
required as ... it is for the catching of birds. Fowling therefore and
similar pursuits are subject to the law laid down by him who has control over the land.

According to pufendorf since man has been denied the ability to be in the air to the extent
that he rest in it alone and be separated from the earth he has been unable to exercise
sovereignty over the air except in so far as man standing upon the earth can reach it.

Although Pufendorf speaks of imperium (in the above sense) yet the problem of airspace
remained in the domain of civil law as long as the independent use of airspace precisely
defined by Grotius i.e. aviation did not become a reality.
 19

MEANING OF
SOVEREIGNTY IN THE
AIR
 20

According to one of the basic tenets of present-day international law on state sovereignty,
the state territory with its adjacent airspace is a delimited part of the earth under the
exclusive jurisdiction of a state. The domination of a state over its territory-to the exclusion
of all other states-is called territorial sovereignty. The UN Charter lists among the
fundamental principles of the Organization the duty of its members to respect the territorial
integrity of every state (Art. 2, Clause 4).

The recognition of the sovereignty of every state in the airspace is based on a generally
accepted rule of international customary law. A historical assessment of this problem has
shown that this general international rule can primarily be derived from the national laws of
the states. It results from sovereignty in the air that every state is entitled to regulate the
order of air-traffic above its territory, Inasmuch as it permits the transit or passage-in single
cases or regularly-of foreign aircraft, such an act is also based on international agreements
having their origin In national sovereignty. the particular characteristics of air sovereignty is
summed up below (the enumeration is based on the Hungarian Air Code of 1964 and the
Chicago Convention of 1944; the latter owing to its quasi-universal character- being the
most important and constantly quoted written source of present-day international air Law).

(a) Each state may regulate the use of its airspace both in respect of its own aircraft as well
as of foreign ones.
(b) Each state may restrict, above its territory, the freedom of flight by designating routes,
prescribing flight altitudes and fixing prohibited zones,
(c) Each state may prohibit the taking of photographs or films; may restrict the use of
telecommunication means on board; it may exclude any dangerous cargo (explosives,
weapons) from air traffic.
(d) Any aircraft penetrating into the airspace or violating the restriction command to land.
(e) A previous permit is required also for pilotless (robot) plants. The restrictions listed
under (a)-(e) apply to such aircraft as well.
(f) Any aircraft performing an international flight shall submit to customs and other
inspection at the airport designated thereto.
(g) For reasons of security a foreign aircraft possessing the transit permit may be obliged to
land and to submit to inspection.
 21

(h) A special licence (or agreement) is required for a foreign aircraft to transport passengers
or freight between two points of the state territory (cabotage).
(i) Finally, it follows from territorial sovereignty that inside the state boundaries all civil
aircraft is subjected to the jurisdiction of the state having sovereignty.

Both the air codes and the Chicago Convention relate to civil aviation only. Military flights
are subjected to special conditions in state laws and international treaties'". As to a 'state
aircraft' i.e. the military customs and police airplanes, a special agreement is required for
their flying over the territory of another state also under the Chicago Convention.
 22

SOVEREIGNTY IN AIR
SPACE

In the process of conquering of vertical space, half a century prior to the launching of the
first Sputnik, the appearance of the aircraft led to the formation of a new branch of law, the
national - and subsequently the international - air law. A short survey of the history of air
law theory and legislation shows several striking parallel with the early views on space law.
By inference it can be said that there are connection and differences existing between the
questions, whether space law can be regards as an extension of air law just as space is the
continuation of airspace, the province of aviation.
 23

TRESPASSING IN AIR
SPACE
 24

A problem which has attracted much attention in recent year is that of trespassing in
national air space by foreign aircraft. It is not a new problem. In 1904 Russian soldiers shot
down a German balloon. The incident gave rise to considerable indignation, the more so as
it was alleged that the balloon was not actually over Russia territory at the time. Four years
later at least ten German balloons carrying military officers crossed into France, and to
desire to avoid such incidents in future seems to have been one of the reasons why the
France Government sponsored the conference of 1910.

A number of incidents occurred between the two wars. For instance, in January 1931 two
polish military aeroplanes landed in Germany. The leading pilot was sentence for two weeks
imprisonment but his companion was acquitted. For month later the German court had to
deal with a case in which a polish military pilot after landing in German by mistake and
being informed by local inhabitants that he was in Germany endeavoured to fly back to
Poland but had to land in German territory again because of lack of petrol. He was
sentenced to three days imprisonment for entering Germany illegally and to seven days
detention for attempting to resume with out permission of the German authorities. A few
cases are also reported in which intruding aircraft were confiscated but on the whole by
more standards such aircraft seems to have been leniently treated in the inter- war period.
Some incidents that have taken place since 1945 have been more serious .It is only possible
to consider a few of them here.

1- on 19 August 1946 an unarmed American military transport aircraft was shot down
over Yugoslavia. According to the Americans the aircraft had been forced into Yugoslavia
unintentionally by bad weather and was shot down without warning. In a note to Yugoslavia
the United States government described the shooting down of the aircraft as an outrageous
act. A plan violation of the obligations resting upon Yugoslavia under the charter of the
United Nations and an offence against the law of nations and the principles of humanity. To
this strong language the Yugoslavia Government replied that it accepted no legal liability. It
asserted that the aircraft had flown over Yugoslavia illegally and had refused orders to
orders to and.

2- On 13 June 1952 a Swedish military aeroplane was shot down by soviet fighters over
the Baltic. Again the facts were disputed and a further complications concerned the actual
 25

extent of the soviet air space as the soviet union's clam to territorial of twelve miles and
consequently the air space above those waters is not recognized by Sweden.

3- On 7 October 1952, a United States B29 aircraft was shot down by soviet fighters
between Yuri Island and Akiyuri Island. This was an area which, in the view of United
States, belonged to Japan, although the soviet Government claimed that aircraft had violated
soviet air space. Again it is obvious that disputed frontiers are particularly liable to generate
aerial incidents. The United States referred the case to the International Court of justice, but
the latter, finding that the soviet Government had not accepted the jurisdiction of the court,
ordered the case to be removed from the list.

4- Similar incidents occurred on 4 September 1954 and on 7 November 1954. Again

the United States referred the cases to the International Court of justice, and again the court
had to order them to be removed from its list.

5- The United States also instituted proceedings before the court against both Hungary
and the soviet Union concerning an American c47 military transport aircraft forced down by
soviet fighters over Hungary on 19 November 1951.The respondent states declines to accept
jurisdiction and again the court had to remove the case from its list.50 The same thing
happened when the United States brought suit against Czechoslovakia over an aerial
incident which occurred on 10 March 195351
 26

SPACE LAW AND AIR

LAW
 27

The problem of relationship between international law and space law involves the important
practical and theoretical question whether the validity of international law means that the
treaties and customary rules of air law covering the facts of space exploration, or analogues
thereto, also find application in space law. The Chicago Convention - the most important
written source of international air law - could be,
for example, such a special treaty. Also, there arises the possibility that the effect of regional
or bilateral air law agreements and of customary law should include the space-lights as well.
Some authors have recommended the complete or partial application of the said legal
material, while most of the authors opted for the inapplicability of air law - owing to
technical and factual differences. In this respect it is M. Smirnoff's consistent scientific
activity which commands attention.

In commenting on the aerodynamic theory of the delimitation of outer space we have

pointed out how difficult is to define the concept of airspace in the absence of legal
definitions. We have had opportunity to point out the theoretical problems caused by the
attempts to differentiate between the latest types of conventional aircraft and the
spacecrafts which also use aerodynamical effects at the descending stage of their trajectory.
Although the two are often overlapping, nevertheless, the international rules of aviation
cannot govern space activities. The main reasons for this are as follows:

(a) the trend of international air law has on the whole a territorial character, its
construction being based on the territorial (air) sovereignty of the states (Chicago
Convention, Art I);

(b) the Chicago Convention is unequivocally applicable only for such types of civil
aircraft as do not cover the space rockets, satellites and spaceships that are in use at present.

In our view ICAO should not have imposed on itself any restriction. On the contrary, the
Convention should have had to be extended as opposed to its original intention - in order to
cover the space vehicles. Since the Soviet Union and many other states are not parties to the
Convention (neither is Hungary), any modification - even if commonly accepted by all state-
members - would have fallen short of the objective anyhow, and would have failed to extend
 28

the validity of air law on space activities in a manner which could aspire to a universal
acceptance.

Speaking of the future of the Chicago Convention, J.C. Cooper believes that it would be
fateful if its rules were only restricted to civil aircraft moving in the airspace. In his opinion
it is obvious that all international flights, regardless of their altitude, should be governed by
uniform rules. He plans to implement his thesis through a uniform law which he calls
aerospace law. The latter would embrace all types of activity by aircraft and spacecraft
deployed in the airspace and above it.

It is certain that the continuity of the vertical space would be capable of creating a close
logical unity between air law and space law. In the development of technical civilization the
connection between the feats of aviation and the instruments of space exploration is
undeniable. The intertwinement of the two legal branches is becoming still stronger with the
realization of hypersonic aerospacecrafts and boost- glide vehicles'". Consequently, air law
and space law cannot be conceived of as two separate, independent disciplines. Beside
subjective reasons (the role of air lawyers in the science of space law) didactic reasons will
also warrant a joint treatment of the two subjects. Nevertheless, at the present stage of
development, the essential differences mentioned above are still dominant. They divide air
activity from space activity, and the corresponding legal matters, respectively. We are bound
to agree with A. Meyer, who, on the basis of the present stage of development of space law,
states in contrast to J.C. Cooper's aerospace concept that: "Thus in future there will exist on
the international level two kinds of rules for the traffic in the airspace, one of aircraft laid
down in the Chicago Convention, and one for spacecraft passing through airspace, laid
down in a new Convention ... we have a similar situation on the earth where there is not
single set of rules valid for all vehicles moving on the earth.

As has been stated above, air law rules are not applicable to activities in space. Another
question arises in connection with the former but on a different plane, namely, whether
space law contains a customary law rule or a binding principle derived from other space law
sources which would entitle the states to use foreign airspace during the passage of their
space instrumentalities "at the ascending and descending stages of their trajectories.
Although much room has been devoted to it in space law literature, the problem has had no
great practical significance so far. In fact, the launching bases of the USSR and the USA are
 29

located in such a manner that the space rockets have to pass only through their own
airspace, or above the high seas, respectively. No foreign airspace was crossed either by the
rockets carrying the French satellites A-1, D-1 A, D-1 C or the Italian San Macro. The
problem will begin to have practical significance only when such states will engage in space
activities whose geographical and territorial position or technical endowments will not allow
of such a location of the launching pads. In the stated case, the interested states will be
likely to cope with the questions of passage through foreign airspace by means of
international agreements, like the British American Agreement of 1956 regarding
the proving ground for guided missiles with trajectories passing above the Bahama Islands.

As regards the position under positive law, we agree with G.P. Zhukov who maintains that it
would be premature to suppose the existence of a customary international law rule
permitting the passage of foreign spacecraft through the airspace of other states'". Article 8
of the Chicago Convention also affirms that states on the basis of their sovereignty make the
passage of pilotless aircraft also dependent on a permit to be obtained in advance. There is
no reason to suppose at the present stage of international law that any state would regard the
flights of foreign space rockets from a different aspect; in fact, there is no reason to suppose
that any state would regard such flights as a right secured by international space law. In our
opinion no such rule can be derived either from the customary law rule of the freedom of
use of the space, or from the Space Treaty (Articles 1 and 2) confirming this freedom.

It is our belief that the guarantee of freedom to use outer space for peaceful purposes could
eliminate the main difficulties of this problem, at least until such a time (not too imminent
anyhow) when small states of restricted areas will have entered the ranks of space powers.
 30

THEORIES
CONCERNING AIR
SPACE
 31

When faced with the problem of the legal status of airspace at the turn of the century at an
age when human activity had become extended vertically in a manner that would have been
unimaginable in purendorfs period theories were forced to rely on civil law
analogies. Academy member Laszlo Buza {then a lecturer at the sarospatak law school) in
his pioneering hungartian work asked the question whether Territorial sovereignty extends
to the a airlayer above the territorial areas of the state or else the air is free like the high seas
and the Subjacent state rights in respect of the column of air are restricted at most to those
rights the maintenance of which is desirable in order to protect the safety of person and
property of its citizens.

The answers given by theory to this kind of questions present an obvious model when the
science of space law is faced with an identical problem now in respect of the outer space.
We are going to analyse these theories from the point of view whether the international
practice followed in air law is applicable also in international space law.

1.THE THEORY OF FREE AIR: the international legal literature dealing with the legal
status of airspace starts with fauchille work entitled ledomaine aerien et le regime juridique
des aerostats.

At the early and primitive stage of aviation fauchille this outstanding French international
lawyer declared the priniciple of liberty of the air patterned after Hugo Grotius mare liberum
air est libre according to his argument sovereignty means a direct permanent and actual
connection between the possessor of sovereignty and the subject matter there of enabling
exclusive dominion sovereignty can only be the consequence of a material lawful possession
or one legalized subsequently'{.Since these condition cannot be realized in the air there fore
the airspace cannot pertain the theory says either to the dominion of states or of the
community of states. There is an interesting argumentation here the dominion over the air
space could only be realized with the help of a mass of guns placed following a chess board
pattern since however sovereignty cannot rely on funs as the differences in the ranges of
guns would render the exact definition of the territory dominated by a state impossible this
conception does not seem workable'".
 32

According to Fauchille there is no rule in international law on which the sovereign rights
over the airspace could be based. Every state however is entitled to prevent any action in the
air layer above it which would endanger its existence or the personal or material safety of its
citizens. With the contemporary position of techniques Fauchille theory found acceptance at
least with the non-inter governmental scientific bodies thus e.g. His these were accepted at
the 1906 Ghent session of the institud de droit international. At the institute 1911 madrid
session the principle of freedom of the air was amended as traffic in the air is free.

It was by no means difficult to line up heavy arguments against the theory of the freedom of
the air. For example the theoretical weakness of the analog of the high seas repeatedly
recurring was evident if the air were free in case of war military operations could be carried
out also a above neutral territory no state could suffer this sovereignty need not everywhere
See deserts and high mountains still the decisive doubter arguments were provided by the
rapid development of aviation.

2.THE THEORY OF AIR SOVEREIGNTY as early as in 1906 at the Ghent session of the
institute de droid international there were those who pleaded for the principle of air
sovereignty in contrast with the air libber concept of facile there was Westlake who
proposed to recognize the sovereignty of the subjacent state over the airspace.

The authors representing the various shades of the theory of sovereignty zitelmann hazeltine
anzilotti meyer fleischmann etc. seemingly reached an identical conclusion as those
professing the theory of free air. The latter however started from the point that the titles
deriving from the right of self preservation did not create sovereign rights while the former
recognized the airspace as being part of the state territory and according to them the rights
due to foreign states were no more than the limitation of sovereignty. For example even
Westlake would recognize the limitation of state sovereignty covering the whole air column
in so far that states had to recognize the right of non-offensive passage droid de passage
inoffensive for other states. The Hungarian author baszlo buza also shared this view.

As far as our own topic goes the fact is important that while according to some authors the
occupation of the air ensued following the invention of flying air sovereignty is derived by
the majority of the theoreticians from the logical and close relation of the earth surface and
water spaces with the airspace. However without the sea life an go on while the air is an
 33

indispensable condition of man existence the state sovereignty is of necessity three

dimensional it must include the vertical space filled with air.

3.THE ZONE THEORY: The being of an intermediary character and relying of the
analogy of territorial waters and the high seas. Its proponents preferred to divide the
airspace into various layer of different status. The sovereignty would extend to a territorial
airspace (analog of territorial sea) to be defined by various methods; above this layer the
airspace would be free(analogy of the high seas).some of them set the upper limit of the
state airspace at the range of a gun (Bluntschli, River) or equaled it with the height of the
building (Rolland)'" still other janos csarada. Proposed that the limits should be fixed in an
international convention .In the theory of Marqinal (we shall return to this question when
dealing with the limits of outer space) the airspace is divided into three zones. The zone
national up to an altitude of 200 m is under the exclusive sovereignty of the state and flights
in this layer can be prohibited without limitation .The zone international between 200 and
400m, bears an national Character in as much as only the offensive noxious flights can be
prevented; the air above this layer is free and is not covered by any state sovereignty.

The zone theory was unable to answer the fundamental questions as it recognized above a
certain altitude- the freedom of the air. It inevitably shared the fate of Fauchille's theory.
 34

POSITIVE ASPECT OF
THE FREEDOM OF
SPACE
 35

The res communis omnium character involves not only the exclusion of appropriation, but
also-in a positive sense - the freedom of use. In the terms of outer space this is identical with
free access, free exploration and use. Space age has brought global tasks, global advantages
and dangers for all mankind. It is hardly conceivable that a given state of group of states
could claim exclusive rights for the exploration and exploitation of cosmic space. The fact
that at present there are only a few great powers (mainly the Soviet Union and the United
States) which dispose of the material and technical conditions required for space activities -
does not alter this principle in any way. The circle of the direct participants in space research
will be continually widening and the process will be helped by regional agreements. In the
meantime, the widest possible circle of states will co-operate in solving the scientific tasks
connected with space exploration, and in turning them to practical uses, thanks to the test
data provided by space powers.

There can be no doubt that the Space Treaty has elevated the principle of free exploration
and free use to the level of positive law. When it is laid down in Article 1 of the Space
Treaty that every state shall enjoy freedom of exploration and use on the basis of equality
and without discrimination, this wording implies that it is the declaration of a general
principle, and not of one recognized only among the States, Parties to the Treaty. The Treaty
recognizes the freedom of outer space just as Art. 1 of the 1919 Paris Convention (of similar
importance in the history of air law) had declared the complete and exclusive sovereignty of
every state over the airspace above its territory. That the freedom of outer space had been
recognized by states even prior to the Space Treaty, is proved by the General Assembly
resolutions quotes in connection with the exclusion of appropriation, i.e. by No. 1721/XVI,
Para A/1/b, any by Para 2 of the declaration embodied in GA Res. No. 1962/XVIII. The
former unanimously gives commands to states for their guidance to follow the principle of
free exploration and use of outer space open to every state, while the latter solemnly
declares that states should be guided by this principle in their space activities. This
crescendo of wording culminating in the said article of this Space Treaty undoubtedly
corresponded to the progress of ten years' international practice of space exploration which
has pointed ever more decidedly towards the recognition of freedom of space. The uniform
stand taken by the science of space law and private proposals were also reflecting the
recognition of the freedom of use and exploration.
 36

Freedom of use and exploration of outer space is vested in states. The Space Treaty leaves
no doubt that only states can be the subjects of this freedom - as a right from international
law. Neither the Treaty nor the customary-law rules confirmed by it can directly empower
individuals or private organizations. In one of the states carrying on space activities - in the
Soviet Union - the social- economic system itself excludes the possibility of private
organizations participating in space ventures. Not so is the case of other space powers. For
example, in the United States, in accordance with the economic system prevailing there,
private companies play an ever increasing role. Thus, for instance, the Telstar
communications satellite launched July 10th 1963, was the joint venture of NASA and ATT
(American Telephone and Telegraph Co.).

At present not even the nationals of those space powers where non socialist system prevails
are in the position to launch satellites without using the facilities, carrier rockets or guiding
centres owned by the armed forces, or simply without the co-operation of the military
bodies. It can, however, be imagined that in the future private organizations, too, will be
capable of and entitled to launch rockets. If so, opportunity will be provided for abuses both
in outer space and in airspace. The community of nations, or the launching state itself,
cannot remain unaffected by this possibility. In fact, the global risks and dangers which
might be caused by such private ventures without proper guarantees and control must be
taken into account.

In the discussions on the legal principles governing space exploration, the question of how
to deal with private activities was a source of serious controversies. The Draft-declaration of
the USSR wished to lay down that carry out activities destined for the exploration and use of
outer space (Para 7). At the same time, according to the British Draft, all states and their
citizens were meant to have equal rights to explore and utilize outer space (Para 4).

The discussions were resolved by a suitable compromise guaranteeing this aim, i.e. by
incorporating Para 5 in the Declaration embodied in GA Res. No. 1962/XVIII, where the
responsibility of states for every kind of space activity is pronounced. The sample principle
is expressed in Art. 6 of the Space Treaty. In the context of the Treaty, the free use and
exploration of space can be realized in the following manners:

(a) through national activities carried on by governmental agencies;

 37

(b) through national activities carried on by non-governmental entities;

(c) through activities carried on by international organizations.

As in connection with the res communis omnium character of space, also in the theoretical
construction of the freedom of space we think it permissible to disregard the existence of
intelligent beings inhabiting alien celestial bodies. Although man may be not the only
intelligent being in the infiniteness of the cosmos, still when laying down the foundations of
space law, our cosmic partners may be left out of consideration. For many generations to
come the freedom of space will be practiced by astronautical exploits remaining within the
solar system; such exploits will not put the future astronauts in contact with man-like or
superior creature
 38

NEGATIVE ASPECT OF
THE FREEDOM OF
SPACE
 39

The right of free exploration and utilization of space also implies the obligation of states to
avail themselves of this right without prejudice to other states and to the interests of
mankind. Article 9 of the Space Treaty pronounces that in the exploration and use of outer
space States, Parties to the Treaty, shall be guided by the principle of co- operation and
mutual assistance, with due regard to the corresponding interests of all other States, Parties
to the Treaty.

Although the latter provision concerns the relation among States, Parties to the Treaty, yet
this obligation is the logical outcome of the customary-law rule recognizing the freedom of
space. The negative aspect of the freedom of space requires the states to refrain from certain
activities.

At the current technical level of space exploration some existing circumstances potentially
or effectively hampering the free exploration and use of outer space already provided facts
which require to be regulated de lege ferenda and other circumstances are to be consideredas
forbidden acts or conduct under the existing positive space law.

1- Space instruments out of action. Various 'hardware' can be found in space besides
the identifiable 'live and dead' space instrumentalities. As early as by the end of 1963, beside
the 94 satellites then in orbit, there were 49 burnt-out carrier rockets and 268 fragments,
altogether 411 objects registered as orbiting round the earth. They included satellites with an
estimated life of thousands of years. Thus, e.g. Midas (launched 12th July, 1961) will remain
in orbit during 10,000 years, a US military space object launched on July 19th, 1963, during
an estimated 100,000 years, Unless space technology will take care of the disposal of the
space objects, they will be likely to provide jobs for many future generations of space
lawyers. Sooner or later the mass launchings of satellites will constitute an impediment to
the freedom of exploration and use. In consequence, technological progress must be
accompanied by legal regulation relating to the removal of dead objects from space.

2- Activities hindering space exploration. Over and beyond the legal and practical
effects of the situations listed above, various experiments capable of excluding or limiting in
certain zones the space activities of other states will infringe the right of free use and
exploration of outer space. The West Ford Project carried out by the United States was, e.g.
such a venture. Within the framework of the latter project the USAF dispersed 350 million
 40

thin needles of a total weight of 33 kg in outer dispersed 350 million thin needles of a total
weight of 33 kg in outer space, with the help of the Midas-4 satellite, on October 21, 1961.

The first experiment failed because the metal needles did not form a contiguous belt but
collected in seven big groups instead. According to the comments in the periodical of the
British Interplanetary Society, the failure has brought a general relief in scientific circles.

3- Upsetting the balance of nature. In addition to activities narrowing the freedom of

outer space, there are others which are capable of upsetting the balance of nature. By this we
mean such human activities as may result in permanent physical or biological alterations in
space or on the celestial bodies, further, which may blur their natural state and thus interfere
with subsequent scientific research or free use, finally, activities capable of producing
incalculable risks. Such experiments include nuclear blasts in the outer space and the
contamination of space by micro-organisms.

4- Legal limits of harmful space tests. The situations and actions dealt with in the
forgoing paragraphs are an important field in space law regulation. As regards the subjects
under (b) and (c) some positive law rules limiting the freedom of space
exploration in the general interest are already discernible, though for the time being they
amount to no more than the declaration of programme like fundamental principles. A
detailed regulation will be the outcome of a treaty-making period, and it will have to take
the latest results of the physical sciences and the possibilities of space techniques into
consideration.

The limitations of the freedom of outer space further follow from the universal human
interests - also recognized both by UN General Assembly Resolutions and the Space Treaty
- as the fundamental principle of all space law regulation.

When introducing the negative features of the freedom of space exploration we have already
had occasion to quote the first thesis of Art. 9 of the Space Treaty, which makes it the duty
of all State Parties to have due regard to the interests of all other States, Parties to the Treaty
.Since the free exploration and use of outer space is the right (based on international
customary law) of all states (Art. 1, Para 2), therefore, the prohibition of harmful tests is an
international duty obliging the space powers erga omnes .Thus, the following provision of
 41

Art. 9 of the Space Treaty, corresponding to Clause 6 of GA Res. No. 1962/XVIII, is merely
the recognition of the said basic principle:
"States, Parties to the Treaty, shall pursue studies of outer space, including the moon and
other celestial bodies, and conduct exploration of them so as to avoid their harmful
contamination and also adverse changes in the environment of the earth resulting from the
introduction of extraterrestrial matter, and, where necessary, shall adopt appropriate
measures for this purpose."

Therefore, the interpretation of the quoted article allows of the following conclusions only;
(i) space activity harmfully affecting the freedom of space shall be prohibited;
(ii) any test potentially involving such effects presupposes a preliminaryinternational
consultation;
(iii) the duty of consultation does not involve the veto of other states against any test;
(iv) Any harmful test executed by omitting the consultation, or despite the frustration
of an international consultation (protest by other states), results in an increased
responsibility of the state executing or authorizing it.

The Space Treaty has done no more than laid down the fundamental principles, the
interpretation of which will no doubt lead to many a sharp discussion both in theory and in
practice. However, by declaring the prohibition of harmful tests, the Treaty has created the
first positive law basis for a progressive development of space law.
42
 43

SPACE LAW
 44

HISTORY OF SPACE LAW

Some of the current problems of space law had found their way even into early
works on air law. The first reference to a coming cosmic law can be found in
E.Laude, a Belgian lawyer. The extent of the airspace gave food for thought also
to early soviet authors on the law of the air. Thus for instance, V.A. Zarzar's
work on international air law dealt with the question of the upper limit of
sovereignty - a fundamental problem in space law. Subsequently,
E.A.KOROVIN, later the doyen of the science of space law in the soviet union,
expounded legal questions relating to the conquest of the stratosphere. The first
conscious elaboration of space law as a new branch of science dates back to a
time when space research itself way yet at the stage of planning. A study by
Vladimir mandl, a barrister of Plzen, deserves a special place in the history of
the science of space law. The arguments of the first independent work on space
law are based on the conviction that laying the foundations of cosmonautics
means more than a mere preparatory work:

"thinking something over means, to certain extant, to carry it out ; both are ways
of ruling over nature and the difference between the two is merely a quantitative
one. If we think something over thoroughly, we have taken more than the first
step towards execution. When so many excellent minds devote themselves to the
problem of astronautics, and when countless studies demonstrate its possibility,
giving exact calculations, then the question is as much as solved, vanquished;
man will indeed conquer space."

An early death prevented this courageous pioneer of space law from living to see
his prophecies come true. His work was received with complete in - difference
by his contemporaries.

In the pre - sputnik age it was the rocket test and the soviet and American plans
to launch the first artificial satellites that direct the attentions of jurisprudence
towards the legal questions concomitant with space research. In the early fifties
 45

pioneer work was done mainly by authors on air law. Particular credit is due to
the very effective activities of J.C.Cooper and A. Meyer, further to the
contributions by J.Kroell, A.A.Cocca, A. Ambrosini to the early literature on
space law.

At this heroic age of space law among the non - air - lawyer authors special
mention is due to A.G.Haley who besides a wide literary activity, distinguished
himself with his significant scientific organisatory activities. Important papers
were contributed to the early space law literature by E.Danier, welf Heinrich,
Prince of Hanover, M.Aaronson.

The launching of the first satellites in the framework of the IGY (International
Geophysical Year) and the successes of the soviet sputnik and American
Explorer series resulted in an enhancement of the interest in the law of space.
An almost unfathomable wealth of publications dealing with space law flooded
the legal periodicals, brimming over even to the columns of the daily press after
an initial mistrust and lack of understanding, space law became a fashion to
which an ever increasing number of international lawyers hastened to pay
homage. Already at the varna colloquium (1962)H. Caplan said that the
literature of this question was too voluminous for any single person to survey
and analyze, unless he would devote his whole life to this task? The
bibliography by K.A.Finch on the selected literature of space law contains
1,169 entries while a similar work by H.P.Kehrberger (1965) lists 30
comprehensive works and no less than 3,170 studies. In the extremely rich
literature containing recent data, the availability of information is helped by
several excellent bibliographies. The United States senate rendered good
services to space law by publishing the two volumes of symposium, which
summarize almost every important publication and other documents of the early
literature on space law, thus making them available. Among the various
assessments of the space law literature is the manual by W.Jenks which contains
the most comprehensive and impartial analysis.

At the initial stage of development in the science of space law, various scientific
 46

institute and social organization played an important role. In the first category
three institutes should be named in particular: the instate for Air law and Space
law of the University of Cologne (institutfiir Luftrecht und
weltraumrechtsfragen) led by professor A.Meyer.The periodical by this institute
has borne since 1960 the title university of Luftrech und Weltraumrechtsfragen
indicating its new scope of activity: the second institute founded in 1951 at the
MC GILL university of montreal (under the leadership of the late professor
J.C.Cooper the veteran of international air law) and sponsored by the ICAO
which today bears the name institute of Air and space law _ made important
contributions to the science of space law also organizing research work; the third
the Davies Davies Memorial institute of international studies in the united
kingdom excelled principally with its two, extensively quoted projects.

In many countries, scientific organizations specially devoted to research into

space law have been founded. Such is the Istituto Italianio di dritto spanziale
which has staged several space law seminars since 1962. certain organizations
have made important contributions by putting the study of legal questions of
space research on their agenda at an early date. Let us stress the role of the
American society of International Law whose annual meetings held since 1956
have led to ample discussion on this topic!". Let us bring into prominence the
activities of the American Bar Association which founded a committee on law
of outer space in 1957. lts publications are widely quoted. The same goes to the
all - embracing 1960 Report of the American Bar Foundation 11.

Socialist jurisprudence (after isolated beginnings already referred to) was

becoming involved with the problems of space law from the second half of the
fifties. The first impetus has been provided by the discussions following the
high - altitude balloon action of the United States (operation Moby-Dick): The
balloon operation and the subsequent launching of sputnik - 1 directed the
writers attention to the upper limits of sovereignty.
 47

In the jurisprudence of the socialist states - besides the soviet legal science -
mainly the space law literature of Czechoslovakia, Poland, Yugoslavia and
Hungary can boast of considerable importance. In these countries many leading
scientific bodies such as the institute for Legal and Administrative Sciences of
the Hungarian Academy of sciences, the similar institutes in Czechoslovakia
and Poland, and the department of Air Law at the institute for International
Lawof the Warsaw university are engaged in studies relating to space law and the
law new discipline has also found in universities education. After the first
summarizing publications (v. Cebis, .LMachowskl) mostly of popular scientific
character time has matured larger scientific syntheses as well as (J. Sztuckil;
G.P.zhukov)
 48

CONCEPT OF SPACE
LAW
 49

The term space law indicates that the legal material covered by it relates to
space, to such activities as relate to space. The term space in natural science
generally denotes 'the entire universe beyond the atmospheric envelope of the
earth; the near-vacuum in which the solar system, stars, nebulae, galaxies exist.
This concept includes all the space which are usually demarcated by the function
of their relation to the earth or to other celestial bodies and thus called
circumterrestrial ,cislunar, translunar, interplanetary, interstellar and intergalactic
space, respectively.

The English speaking literature employs the synonymic terms of cosmic space or
- more frequently - outer space, but in compounds (like spacecraft, space
exploration, etc.) it is usually present without an adjective. In the soviet scientific
terminology - probably under the influence of Tsiolkovsky's Raketa I
kosmicheskoye prostranstvo (1942) - the term kosmicheskoye prostranstvo
(cosmic space) is dominant, but sometimes one meet the expression
mezhplanetnoye prostranstvo (interplanetary space). In the French literature,
besides the simple termespace corresponding to space we find the following ters:
espace exterieur (outer space), espace cosmique (cosmic space), espace
interplanetaire (interplanetary space), but the term space extra - atmospherique
(space outside the atmosphere) is also frequently encountered; so much so that
this was chosen as the official name of the UN Space Committee (Comite special
de 1 'utilisation pacifique de 1 'espace extra-atmosphere). The German literature
almost exclusively uses the term Weltraum. The Hungarian authors have adopted
the expression vilagur which, if literally translated, would mean 'the world-void'.
Both etymologically and from the aspect of the exact science this term seems
incorrect because it refers to the emptiness of the more correct vilagter
(weltraum) but these have found no echo. Sometimes we encounter the
expression kozmikus terseg (cosmic space) (used synonymously with vilagur) in
Hungarian writings. E. korovin would discard as "sterile scholasticism .....
semantic debate reflected in particular in the discussions of The Hague space law
colloquium"!". Indeed, the task of language reform is not incumbent on lawyers.
The space lawyer will freely choose among the terms borrowed from natural
science, his choice depending on the particular domain of this new legal
branch he wishes to emphasize. As regards now the denomination of the legal
 50

material dealing with questions of space exploration, the writings present a

similar variety as is the case with the natural science terminology of space. The
denominations found in the scientific and the official language can be classified
into the following basic types:
(a) cosmic law,
(b) interplanetary law,
(c) law of astronautics,
(d) space law.

(A) The term cosmic law is dominant in the Soviet literature (kosmicheskoye
pravo and generally accepted in the Slavonic languages (pravo kosmicke,
prawo kosmiczne, etc.). The French droit cosmique 9used by Danier), the
Italian diritto cosmico (used by Quadri) are also widespread, and so is the
Spanish version derecho cosmico (used by Seara vaquez). In the English
publications only few authors have chosen it (Grove).

(B) The term interplanetary law is mostly used by South- American authors
to designate the relevant legal material: derecho interplanetario 9cocca),
direito interplanetrio (valladao). The French version, i.e. droit
interplanetaire (Jacob), and the German one, i.e. interplanetares Recht
(bueckling), are also encountered. The corresponding expression
mezhplanetnoe pravo emerged also in early Soviet writings, as e.g. in
Osnitskaya (Galina), but failed to find followers.

(C) Less widespread is the expression astronautical law. Sometimes we find

it in the English literature (MenterO, and further we meet it in the French
droit astronautique (Oanier), the Spanish derecho astronautico( Bauza-
Araujo), and in its Slavonic versios i.e. prawo astronauticzne ;
astronauticko pravo, etc.

(D) The most broadly used term is the version space law, the law of outer
space. Its use is overwhelming not only in the English, but also in the
 51

German, French, Italian and Spanish languages: Weltraumrecht,droit

deI'espace, droit spatial, dritto spaziale, derecho especial. The
Hungariaan vilagurjog also belongs to this category.

Every new branch of science sooner or later faces the problem of creating its
correct terminology and not everyone of them is able to do it. There are
sciences boasting of noble traditions and flourishing without having solved this
problem and without having created a uniform terminology. Take the science of
international law which has survived the fact that its name differs from its
subject inasmuch as it ought to be called inter- state law.

When it early age of the Hungarian space law science some of us opted for the
space law (weltraumrecht) version, we were prompted more by linguistic
analogies then by epistemological considerations (space-space exploration-
space science-space law). We might offer as a belated explanation that we feel
the expressions astronautical law and interplanetary law would put the emphasis
on that field of this branch of legal science which deals with interplanetary
traffic, and cosmic law has a tinge as if it did not represent a terrestrial law
dealing with space, space activity, but rather a set of norms standing above that
- a cosmic one (metalaw). In our view, therefore, space law corresponds best
not only to linguistic considerations, but also to the taxonomic category of the
legal subject embraced by it.
 52

DEFINITION OF SPACE
LAW
 53

Osnitskaya (Galina) wrote in 1960 that "although it (space law) does not in fact
yet exist, attempts have already been made to define it. As opposed to this, we
think it surprising that in space law literature, where detailed analyses of
Utopian hypotheses are so often met, for a long time so few of the authors have
attempted to define the term space law. Though we regard part of this branch of
law as noch zu schaffendes Recht, this does not absolve us from the task of
clarifying its basic concepts .Particularly today, when the 1967 Space Treaty has
laid down the foundations of its development into positive law.

According to a practical and elastic version of definition, space law is the body
of the norms governing the legal relations arising in connection with space
exploration (S.Gorove, V. cebis, Fasan, Zhukov).

The closer definitions mostly reflect the views of their authors concerning the
delimitation of outer space (kroell, Munch); or, they consider space law the law
of astronautics, according to the element regarded as most important by them
(Homburg). Similar principles have given rise to definition distinguishing
between space law and interplanetary law (Cocca).

In our opinion, at the present stage of progress only a frame -like definitions has
any purpose, a definition which will not lose its meaning in the course of
technical progress in space exploration. Moreover such definition should
preferably abstain from referring to such factors as the -still unresolved -
problem of demarcation between airspace and outer space. Thus, in our view,
space law is the body of legal norms governing national and international law
relations arising from the exploration and use of outer space and of the celestial
bodies, the motion of such objects and instrumentalities along such orbits or
their return there from. The permanent frame of these definitions allows of the
following conclusions.
 54

Space law in a wider sense covers also all the national (constitutional law, state
administrative law, civil, criminal and private international law) rules which
relate to space activity of its effects. These rules have still a very important role
in the legal assessment of nay set of facts connected with space activity.
Space law in a narrower sense regulates the international relations connected
with space exploration, and the use of outer space (meteorology and
telecommunications, etc,)As expressed by the Space Treaty- the most important
legal source in this field-space activity is carried out under the international
responsibility for national activities of states and its rules shall apply to the
activities of states, The legal material which might be called international space
law as opposed to space law in the wider sense, forms part of international
public law. The conclusion of international agreements governing space activity,
and the evolution of customary- law rules will increase the scope of international
space law as against the internal, national laws.

It follows from the former definition that-insofar as its part of international law
is concerned - the subjects of space law can be only states and international
organizations, while inasmuch as its parts of national law is concerned its
subjects can also be citizens(natural or juridical entities ). International space
law will never directly confer rights or obligations on citizens, while space law
rules in the wider sense may do that. A given set of facts, e.g. damages, may
contain such elements under space law, as results in becoming subjects at law of
both the states and the natural or juridical entities-the latter through national law.

The subject-matter of this volume is space law in the narrower sense, i.e.
international space law. The internal, national legal effects of some of the
problems will be dealt with only inasmuch as required by their complexity.
 55

SOURCE OF SPACE
LAW
 56

From the fact of that law ( in its narrower sense) will be regarded as part of
international law, it follows that its sources - like those of other parts of
international law - can be:
(a) international treaties,
(b) customary law
(c) general principals of law.

Space law in its wider sense, regards as part of the national laws has the same
sources as the law of the respective state.

(A) International treats: today the most important source of space law is the
Treaty on the Principles Governing the Activities of States in the Exploration
and Use of Outer space, including the Moon and Other Celestial Bodies,
accepted by UN GA Res No. 2222/XXI, December 19th 1996.

Maritime Law- as M. Cohen writes - may have afforded itself the luxury to let
its main principles slowly evolve during many centuries". Not so space law. In
contrast with the former (but also with air law whose initial steps were made
within the limits of national law) the global character of space activity required
an early international regulation by treaty. This had been recognized as a
primary, de lege frenda task right from the outset. It was further generally
recognized both in science and in practice that the preliminaries of a detailed
codifications were lacking as yet, thus the treaty to be concluded would have to
be restricted to the main principles. The space Treaty elevated the principles
accepted in various General Assembly resolutions to the rank of Treaty law.

Particular provisions affecting space activity are contained in

furtherinternational agreements. Such a source is, for example, the Nuclear Test
 57

Ban Treaty of Moscow (August 5th, 1963f2, and the ITU Radio Regulations
(completed in 1963). Similar source of space law can be found in forms of
international co-operation in the field of space exploration .At the present stage
of development other, non- intergovernmental, agreements may also play a role,
such as the bilateral agreement between the USSR Academy of Sciences and
NASA (June 8th 1962). These, however, regarding their form, are not sources of
law. Nevertheless, there are agreements of analogous contents and concluded
on an inter- governmental level, such as e.g. the French -Soviet ten year co-
operation agreement signed on June 30th 1966.

(B) International customary law- Opinions differ whether space law has
already evolved its customary law rules to be regarded as lex specialis the
question has arisen in particular in connection with the passage of satellites in
his comments on F .B. schick' paper E.A. Korovin pointed out two difficulties.
In order that we may speak of valid international customary law two conditions
must be fulfilled: long-lasting practice and general application. In case of a new
emerging legal a field these conditions cannot be satisfied, particularly if we
consider that for the time being, we can speak of the practice of only two states
though Korovin's skepticism can be shared, still, we do not admit that these
rules can only come about through the mutual practice of the two space powers
(and those associating later). The states which are not active participants by
launching spaceships are more than just onlookers or, possibly, victims of space
activity- as Chaumont would have us believe. The latter states too are
participants in international practice by their conduct in given cases, by
protesting or to protest.

As in other fields of international law so also in space law we have to examine

under various aspects whether, in the absence of treaty regulations, the
development of a customary law can be confirmed. In determining this,
however, only the conduct of states and not that of private organizations or
individual persons, and the opinio iuris expressed there in can be taken into
consideration. The 'teachings of the most highly qualified publicists' on space law
 58

(Statute of the International Court, Art. 38d) can be at most subsidiary means for
the determination of rules of law.

The arguments expounded above merely relate to the evolution of the suigeneris
customary law rules of space law the general priniciples of international
customary law rules regulating relationships among states such as the prohibition
of aggression the respect for sovereignty the state liability rules etc. will of course
remain binding upson the states also in the field of space activity.

(C) General principles of law the general priniciples of law which may be
derived from valid international treaties or customary law rules are also sources of
the international space law such experts as G. Tunkin and M. Lachs called in the
course of the discussions of the UN s pace Law committee the tenet on the
applicability of international law in space a legal priniciple they affirmed that this
was the first general principle of international space law a direct consequence of
the priniciple pacta sunt servanda. It cannot be disputed that the legal principles
valid in international law being quasi logical premises of the latter must be
applicable also for such inter state relations as govern space activities the position
is however different as regards UN resolutions declaring certain fundamental
principles of space activity. They provide the most controversial problem in the
discipline of the legal sources of space law.

The sources of space law in its wider sense include the domestic internal rules
of law which contain special provisions in connection with space activity or are
applicable to the latter under certain aspects (e.g the 1958 US National
aeronautics and space act) here too evolution will lead to the development of
iura specialia within the state administrative civil and criminal law the same as
was the case with air law. G.P Zhukov who otherwise excludes the internal law
rules from the scope of space law rightly points out that space law through its
being part and parcel of international law is in close contact with the domestic
legal systems of the states particularly with the legal institutions that deal with
 59

the protection of sovereignty as well as national legislation dealing with space

flights space ship and their crew international space law and internal space law
regulations are interdependent the state authorization of space flights the state
authority over space instruments provide a link between the two.
 60

INTERNATIONAL LAW
AND SPACE LAW
 61

The literature of space law offers various solutions to the. The practical
successes of space exploration have produced situation which affect therelations
of states and the provisions of international law governing them. Thus, in
addition to the legal regime of outer space, another aspect, the applicability of
international law in space has become one of the fundamental questions of space
law theory.

Problem whether space activity is so to speak legibus soluta or whether there are
norms which accompany artificial satellites and celestial bodies on their cosmic
way. According to one opinion, a legal vacuum reigns in outer space until
special norms regulating the space activities shall be created. Among the Soviet
authors this view has been endorsed by F.N. Kovalev and I.I. Cheprov. They
maintain that the states, when elaborating the rules of international law, only
had in mind a given type of human activity - one that had been possible at
certain stages of development the orbit of the first Sputniks passed across a legal
vacuum, beyond the zone of any legal regulation, therefore the question whether
their launching had required the consent of other states was meaningless. During
the 1958 discussions of the First (political) Committee of the UN General
Assembly several delegates also pointed out the want of valid legal rules.
However, as whilst years were passing by and science and techniques were
leaving behind important milestones in the conquest of space without any sui
gereris regulation being reached by agreement, it became obvious that the legal
vacuum supposed by the advocates of this theory had to be filled with precepts
derived from the valid rules of international law. Horror vacui is characteristic
not only of nature. Lawyers are driven by the desire to fill in legal lacunae. The
seemed particularly important in the case .Of space law, because (as admitted by
most authors) the lack of norms was threatening the peace and security of all
mankind. The rule of law in outer space could not depend on a detailed
codification. This conviction led to the early recognition that international law,
or at least its fundamental principles, were governing also the international
relations relating to space activities, although there were some authors who only
conceded the validity of certain moral norms until such time as the jus speciale
of space would be enacted.
 62

Finally, Art. 3 of the Space Treaty using essentially the same wording made it
the duty of the States, Parties to the Treaty, to carry on their activities in the
exploration and use of outer space, including the moon and other celestial
bodies, in accordance with this the validity of international law in outer space
has been confirmed by an- up to this day- most important written source of
space law. Still, the binding force of international law in outer space does not
derive from this Treaty alone, and even the states which do not adhere to it are
also bound to observe their international legal commitments in the course of
their space activities.

Both the UN GA resolutions cited above and the Space Treaty have a mere
declarative character in this respect. The emergence of a new area of human
activity does not absolve the states from their duties arising under international
law. It would be an absurd idea to conclude that the state of weightlessness will
amount to shaking off not only the terrestrial gravitation but also the legal rules
of enter- state relations. The precept of pacta sunt servanda and the theses of
modern international law fixed in the UN Charter and aiming at the protection
of peaceful co-existence are binding upon the state carrying on space activities-
even without special contractual agreement. Such main precepts are;

(a) The principle of the sovereign equality of states, also applying to the
international relations of space activity. States directly or indirectly
partaking in such activities are not allowed to carry out ventures, which
would be contrary to the principle of sovereign equality;

(b) States shall abstain from the threat of forces, or effective use of force,
against each other's territorial integrity. or political independence (Art. 2,
Para 4)
 63

(c) Against a state violating this duty and using its space activity for
aggression, every state is entitled to the rith of individual or collective
self-defence (Art. 51);

(d) Also in the domain of space activities states are not allowed to interfere
in affairs belonging to the internal jurisdiction of another state (Art. 2,
Para)

(e) States shall comply with their duties deriving from the Space Treaty and
other source of space law in good faith (Art.2 Para 2);

(f) Finally they are required to arrange their disputes arising from space
activities by peaceful means and in a manner not endangering
international peace and security (Art. 2 Para 3).

The above principles are not only obligations deranging from the Charter but
are also part of general international law. The Brussels resolution of September
11th, 1963, of the Institute of International Law is therefore right in declaring
that States- in their activities - "are bound by general international law,
including the principles of the Charter of the United Nations". (Art. 14.3°)

The application of the said fundamental principles on space activities can be

construed without any theoretical difficulty. Yet one would be faced with
difficulties if one wanted to extend the validity of international as a whole to
outer space. The literature finds the following major controversies: (i) space law
regards outer space and the celestial bodies as a zone outside sovereignty,
whereas international law is built up on the principle of sovereignty; (ii) the
rules relating to armed conflicts form part of international law, whereas space
law postulates the peaceful use and exploration of outer space and the celestial
 64

bodies; (iii) an anthropocentric international law cannot be extended to the extra-

terrestrial spaces of an infinite universe.

These contradictions, however, are only apparent ones. As seen previously, the
rules of international space law are necessarily functional. Although state
sovereignty does not extend to outer space and to celestial bodies, yet space
activity is realized under the control of states. As state carrying out or
authorizing such ventures can and must see, following from its very sovereignty,
whether the said activity affects its obligations under international law.

The rules of international maritime law do exist although states do not possess
jurisdiction over the high seas, but only over their 'floating state territories' - i.e.
ships. It is rightly pointed out by D. Goedhujs that the sovereignty of the state is
manifest, in this form, also in space, as the launching state exercises jurisdiction
over its spaceships.
 65

PLACE OF SPACE LAW

IN THE LEGAL
SYSTEM
 66

Learned opinions differ on the question whether space law can be regarded as a
new branch of law. Many writers have stressed that the regulation of space
research makes the law face special tasks which can no longer be solved with
traditional methods. This is true. Still. Those who deduce from this the
separateness of space law can not be agreed with. J.G.Verplaetse- who has
otherwise closely correlated in his system maritime law, air law and space law-
expressed the opinion that

"The step into space takes us outside humanity and legal regulation will be so
different from anything seen heretofore, inclusive that the law of the air, as the
mystery laws that govern the fish in the ocean are distinguished from human
behavior on earth"."

Of particular interest are A.Bueckling's conclusions, doubting whether there

canat all be social contacts (soziale Verbundenheit) in space. In his opinion
every thing points to the fact that, as regards the sociological aspect, space will
remain an empty space in which spaceships will fight for their existence as a
social expeditionary unit, regardless of any binding authority. Until today - he
writes - law had followed the gravitational law of the earth. Now it would
impossible to simply extend the scope of International law over
phenomenalying beyond the scope of earthly empirical laws .At another place he
writes that any attempts by the human intellect to project the international legal
titles into outer space is a hybrid against the Creative Will (schopfungswidriges
rnenscliches unterfanqenr).

Other western writers deduce the separateness of space law from its connections
with natural law. Even with divine law as e.g., A.G. Haley who affirms that
positive law cannot be the basis of space law and, as in the period of the great
discoveries of the is" and 16th centuries, it is ones more the natural law concept
which should provide the juri dico-philosophican background to the new human
relations arising in outer space.
 67

Others, starting from the same preliminaries, arrive at just the opposite
conclusions, namely that the terrestrial positive law must, of necessity, be
projected into space. The final solution, Rauchhaupt writes "will probably be
based on natural law or divine law, and inevitably governed by the logic of law.
This will mean the extension of the international public law in the highest moral
sense and in the hope that it will meet with God's satisfaction.

In the view of socialist jurisprudence, space law presents such consensual

(contractual and customary) rules as are based on the confirmable wills of the
ruling classes of states having different social and economic systems. This is
even more so in the case of national. Domestic rules belonging to the category
of space law (space law in a wider sense), which are part of the respective legal
superstructure. Obsolete as it may be in the field of natural science, the
geocentric out look is absolutely correct in space law. As long as it wishes to
remain on the firm ground of reality, the science of space law should not look
else where for its foundations and try to find legal norms for analysis and
classification in some 'extraterrestrial legal systems.

The same goes for metalaw, the concept introduced by A.G. Haley. His starting
point is that like all laws of the human community, so also space law can only
apply to human communities. Astronautics, however, may lead to contacts
should not be regulated by an anthropocentric space law. That is why it is
necessary to elaborate a 'Iaw-beyond-Iaw' or metalaw which would govern
relations among sapient beings of different principles of natures, living in
indefinable numbers, under different principles of natural law.

Though it may seem controversial, in laying down the foundations of space law
the anthropocentric characters of law must still be maintained. For our
generation the contacts with intelligent beings supposedly living on other
celestial bodies will present no legal problem waiting for regulation, so there is
no need for the concept of the space law and its classification
being influenced by Utopian speculations belonging to the world of science
 68

fiction This kind of hypothetical matter does not pertain to the conceptual scope
of space law. Until coming centuries fail to create factual bases, the problem
may be just as untimely as nuclear law could have been at the age of
Grotius.

It follows that the law of space is a system of rules not fundamentally differing
from that of other branches of law, and further, since it would be too early to
consider it as a separate branch of law as distinct from the national law, and
international law, if this discipline is still dealt with apart, it is rather for the
sake of expediency or for didactic reasons only. Its relationship to international
law or to the corresponding domains of national law will be not differ from the
similar relationship of air law or maritime law.

The outlook concerning the concept and systematization of the law of space -
dominant in socialist jurisprudence - differs sharply from the Utopian trends
sometimes evoking a justified mistrust of space law, i.e. it will help scientific
research focus on the legal forms of an international co-operation capable of
promoting the realistic aims of space exploration.
 69

INTERNATIONAL
COOPERATIONS OF
INDIA WITH OTHER
COUNTRIES:
 70

The International Cooperation Group (ICG) in DGCA handles all the international
programs with international organizations on matters relating to policy, technical, and
safety matters with the main aim of enhancement of aviation safety in India.
International Organizations participating in the international programmes underline
their willingness to maintain and enhance a high level of aviation safety in India
through joint cooperation.
The first component of the ICG is a voluntary partnership between international
bodies, non-governmental organizations, national aviation authorities, operators,
research organizations, as well as aircraft and equipment manufacturers aiming at
enhancing aviation safety through safety analysis, implementation of cost effective
action plans, and coordination to promote safety initiatives.
DGCA has ensured that through ICG there exists a global mechanism for information
exchange for timely communication among the aviation community at national and
international levels.
The ICG ensures:
· Cooperation on regulatory matters.
· Information for sharing arrangements.
· Exchange of technical information.
· Convergence in regulatory practices and harmonization of regulations.
· BASA and Technical Arrangements.
The ICG intends to promote information sharing at the national or international levels.
This enhances global recognition of participating countries, larger market acceptance
and increased potential for business.

Cooperation with Brazil and South Africa

India, Brazil and South Africa have entered into an agreement on cooperation in key
areas. The three countries, though geographically located far apart, have similar
aviation scenario and can help each other in development with cooperation and
sharing of resources. The programme is managed by a Steering Committee. Talks
with the authorities are being held for cooperation in issues of accident and incident
investigation, certification of aeronautical products and environment.
Under the aegis of Trilateral Joint Commission of India-Brazil-South Africa (IBSA)
Forum, a cooperation programme between India and Brazil was initiated. The purpose
of the programme was to have a ‘Memorandum of Understanding (MoU)’ and
 71

‘Implementation Procedures (IP)’ signed between the two countries on airworthiness

certification and in general promotion of aviation safety. Subsequent to concurrence
of both the Governments of India and Brazil, the MoU and IP have been signed
between ANAC and DGCA.

Israel
Israel’s CAA, after a study of India regulatory system and production oversight, has
signed an agreement of Implementation Procedure with India on cooperation in
aviation and acceptance of aeronautical products. Under this procedure, aircraft parts
and airframe structures are manufactured by HAL under DGCA’s regulatory
oversight. Such cooperation programs are expected to rise as our manufacturing
industry becomes more competitive.

New Zealand
New Zealand’s CAA and its aviation industry has had dialogue of cooperation in
various areas of aviation activity, particularly in engineers and pilot training.

Australia
Australian aviation authority have shown interest in having an MOU with India on the
acceptance of aeronautical products. Presently many MROs in Australia are approved
by DGCA and hundreds of young Indians are receiving pilot training at Australian
flying training institutes. India made Hansa aircraft has been taken up for certification
in Australia. Likewise, Australian products have also been accepted for operation in
India.

Cooperation with Russia

India signed an Implementation Procedure (IP) with

Russia in 2005, on certification of each other’s aeronautical products which conform
to specific Certification Standards. Russian helicopters certified by DGCA India have
been in operation in India for some time and many Indian aircraft mechanics and crew
have received training in Russia. Recently Russia has shown keen interest in new
products for certification and manufacture in India. An MRO for helicopters is also
being planned.
 72

Cooperation with France

France has been a partner in Indian aviation activities for a very long time. It has
offered several cooperation programs in the past, individually and also under the EU
umbrella. Activities included operational areas, airworthiness, licensing, special
operations like RVSM, ETOPS, Low Visibility Operations, Lease & interchange of
aircraft, accident and incident investigation and certification of large aircraft and
rotorcraft etc. A cooperation programme was signed between the Governments of
India and France in Paris recently. French DGAC is also assisting DGCA in the
establishment of its Training Academy in collaboration with AAI, where DGAC will
provide cooperation with their National School of Aviation (ENAC), located at
Toulouse. A steering Committee has been formalized to establish long term technical
co-operation.

Cooperation Programs with European Union

An European Union-India Civil Aviation Cooperation Programme (till November
2007) was accomplished with over a hundred activities for the aviation personnel in
India. The training and technical assistance programs included airworthiness,
operations, aerodromes, licensing and CNS/ATM and air transport subjects, including
On the job training on audit procedures. The programs involved activities in both
India and Europe.
After the completion of the programme, European industry sponsored programs have
helped in continuation of the activities. Several activities on operational and
airworthiness issues have been undertaken with the help of aircraft manufacturers.
Presently the programme is active in the form of South Asia Regional Initiative
(SARI), which is helping implement international regulations in South Asia. India has
taken a lead in this regard and has already implemented CAR 145 on maintenance
organizations. EASA Regulations on Continuing Airworthiness have been adopted in
India in the form of CAR M.
A project for Institutional Capacity Building for the Civil Aviation Sector in India
(ICCA) has recently commenced with the kick-off meeting in March 2010. The
project is funded by EU and is for a duration of 34 months with the Inception Phase (2
March -1 June 2010), Execution Phase (Month 4-33) and the completion phase
(month 34). The project will be monitored by Project Steering Committee (SC), which
 73

will endorse and steer the implementation process at the completion of the Inception
phase in June 2010.

USA
Cooperation Programme (ACP) with USA
Prior to November 2006, the working relationship was limited mostly to technical
discussions on GNSS. Today, the FAA is working with the Indian government on a
wide range of technical activities, and establishment of an FAA field office in India
has greatly helped cooperation with FAA on a day-to-day basis.
Joint Aviation Steering Committee (JASC)
Cooperation work between the FAA and the India is coordinated through a Joint
Aviation Steering Committee (JASC). These cooperative efforts take place under five
working groups, which include air traffic, aircraft certification, flight standards,
airports and environment. The FAA, U.S. Trade and Development Agency (USTDA)
and the Indian government held a very successful U.S.-India Aviation Partnership
Summit in December 2009.
In February 2010, USTDA has approved a $370,000 grant to support a program
designed to provide guidance to foreign aviation authorities on requirements for direct
commercial air carrier operations to the United States. The program is planned for
late June 2010 in San Francisco and Seattle. India is one of eight countries invited.
In March 2010, JASC met at Hyderabad during the India Aviation 2010 and the two
sides conducted an appraisal of the cooperation programs underway.
Activities completed till date include air traffic flow management procedures
including signing of two agreements of cooperation with FAA for support by US
Trade and Development Agency (USTDA) for assistance on helicopter operations
(Bell Helicopters) and training on certification of aeronautical products (HAECO
Parts Group USA).
Airworthiness Joint Working Group
The U.S. and India committed to work together toward a Bilateral Aviation Safety
Agreement (BASA) in November 2006 with the signing of a Memorandum of
Consultation. Since then, the DGCA and the FAA’s Aircraft Certification Service
have been discussing a path toward a BASA, including a long-term training plan for
DGCA personnel. The DGCA has sent 19 DGCA officers for training in the United
States in the last three years and the FAA has trained 25 more in India. FAA’s
 74

Certification assessment visit for shadow certification of Indian aeronautical products

is expected to take place in June/ July, 2010.
Air Traffic Joint Working Group
Indian experts attended an ADS-B and GBAS seminar in New Delhi on January 28-
29, 2010. Four representatives from the WAAS Program Office, including Ms.
Deborah Lawrence, traveled to India for a GPS Aided Geo Augmented Navigation
(GAGAN) Roundtable meeting during the week of February 22. These discussions
will lead to future technical assistance agreements to support efforts to certify the
GAGAN system. In addition, the Indian government plans to send experts to the
FAA Technical Center in the summer of 2010 to gain more knowledge on RVSM
implementation.
Airports Joint Working Group
Representatives from DGCA & AAI had a productive JASC Working Group meeting
with the FAA Airports organization in December 2009. They discussed a wide range
of topics, including wildlife mitigation, airport lighting, pavement, airport safety
certification, runway status lights and Engineered Materials Arresting System
(EMAS). They also agreed to follow up on a potential Airport Safety Workshop in
New Delhi later this year.
Environment Joint Working Group
DGCA had discussions with the Office of Environment and Energy (AEE) in
December 2009 to the discuss the outcomes of the ICAO High-level Meeting on
International Aviation & Climate Change as well as future work plan for
environmental cooperation. Presently we have planned to work on the measures to
reduce emissions, development and use of alternate fuels, and means to mitigate noise
at the airports. A seminar on this subject will be held this year.
Aviation Cooperation Programme (ACP)
The ACP has completed its first two programs, an ATFM seminar in October 2008
and the Air Traffic Management Training Program (ATMTP) in March 2009. The
ACP recently finalized projects in aerospace manufacturing standards and helicopter
operations and has submitted four more, including a follow-on project to the ATMTP;
a Next Gen/SESAR assessment; a ground-based GPS augmentation system
assessment; and a continuing training program for inspectors. The ACP had an
exhibit at the India Aviation 2010 air show. Under a rotorcraft operations programme
under ACP of US$ 500,000 funded by USTDA, a Bell helicopter expert has been
 75

provided to DGCA for providing expert advice on helicopter operations. Another

programme on training on specialized training on manufacturing techniques has been
finalized and is about to start.

Cooperative Development of Operational Safety and Continued Airworthiness

Programme – South Asia (COSCAP-SA)
The Co-operative Development of Operational Safety and Continuing Airworthiness
– South Asia under the aegis of ICAO, is a joint programme of seven SAARC
countries, namely India, Pakistan, Nepal, Bhutan Bangladesh, Sri Lanka and
Maldives. The programme is aimed in assisting the participant States in developing
their air regulations and standards and to improve their independent oversight
capabilities. The programme is managed by a Steering Committee consisting of the
Directors General of the seven States. ICAO Headquarters and Regional Office
Bangkok carry out overall supervision and provide guidance to the programme. The
seven participating States contribute finances to the programme in accordance with
the services rendered to the individual State and as determined by ICAO,
Headquarters. The project also enhances the individual oversight capability of the
each participant State by providing on-site training of national inspectors and
conducting systematic assessments of States’ flight safety organizations.
The project started in the year 1997 and is presently into its Phase III is upto year
2012.
Supplementary programs like South Asia Regional Aviation Safety Team (SARAST)
and other initiatives have greatly helped the knowledge of the SA Region in aviation
matters and will manifest itself in improvement in the safety record of the region.

International Civil Aviation Organisation (ICAO )

As a contracting State, India has played a very proactive role in initiatives of ICAO.
India has participates in environment related endeavors and supports the view that any
such global initiatives should be under the aegis of ICAO.
India is a member of Group on International Aviation Climate Change (GIACC),
which deals with issues of standards and measures to reduce the emissions and is also
a member of Committee on Aviation Environment Programme (CAEP). India has
implemented the Standards and Recommended Practices (SARPs) adopted by ICAO
and actively participates in the formulation of regulations based on these standards.
 76

VIOLATIONS
REGARDING AIR
SPACE LAWS:
 77

1. Brief Location: Charkhi Dadri, India
Fatalities: 349
Survivors: 0

In November, 1996, a Kazakhstan Airlines modified military plane flying flight KZK
1907, carrying 27 passengers and 10 crew, was descending to land at a Delhi airport.
The cockpit crew had limited English, and they relied upon a radio operator to speak
to Air Traffic Control, creating a greater risk for mistakes. The plane was cleared to
descend to 4600 feet, but the Kazakhstan’s radio operator had failed to inform the
crew that they had to stay at that altitude, and they continued descending.

Meanwhile, a Saudi Arabian Airlines Boeing 747 carrying 312 people, SVA 763, took
off from Delhi flying directly towards them and was cleared to 4300 feet. The
Kazakhstani flight was descending through 4300 feet, and it would actually have
passed under the Saudi Arabian jet, but just then the radio operator remembered to
convey the message that they should remain at 4600 feet. They began to climb again,
and the planes saw each other too late.

The tail of the Kazakhstani plane cut through the Boeing’s wing. The Boeing lost
control, broke up, and crashed, killing everyone onboard. The Kazakhstani plane soon
crash-landed. Four people were rescued, but all were critically injured and died soon
later.

The Delhi airport used a radar system that showed only approximate locations of each
plane, which was outdated long before the ’90s. They also only had one air corridor
open for civilian traffic, meaning that takeoffs and landings use the same airspace.
Investigators recommended several changes to the airport, and the national aviation
authorities made it mandatory for all flights in and out of India to be equipped with a
Traffic Collision Avoidance System.

2. Brief Location: Aurtangabad, India Fatalities: 55

Indian Airlines Flight 491 was on its connecting route from Delhi to Bombay with en
route stops at Jaipur, Udaipur and Aurangabad on 26 April, 1993. The heavily laden
aircraft started its takeoff from Aurangabad's runway 09 in hot and humid
 78

temperatures.
After lifting off almost at the end of the runway, it impacted heavily
with a lorry on a highway at the end of runway. The left main landing gear, left
engine bottom cowling and thrust reverser impacted the left side of the truck at a
height of nearly seven feet from the level of the road. Thereafter the aircraft hit the
high tension electric wires nearly 3 km North-East of the runway and hit the ground.
The probable cause of the crash was the 'Pilots' error in initiating late rotation and
following wrong rotation technique' and 'failure of the NAA to regulate the mobile
traffic on the highway during the flight hours'.
Fifty five passengers were killed
while 63 were injured in the crash.

3. Brief Loacation : Patna, India Fatalities: 39

Allince Air Boeing 737 passenger plane, a Boeing 737 passenger plane with 58
people on board crashed in flames into a housing complex near the eastern Indian city
of Patna on July 17, 2000. The plane, which was exactly 20 years old, was scheduled
to be taken out of service by the end of the year. 
Thirty-nine bodies, most of them
burned beyond recognition, were pulled from wreckage after the Boeing 737-200
crashed into two brick houses about a mile from its destination.

4. On June, 2009
The cargo plane with Russian markings has been cleared to take off from the Mumbai
International Airport. The plane with 18 passengers including two crewmembers had
intruded into Indian airspace and landed at the Mumbai airport on Friday night.
It is likely to take off at any time now from the main runway.

Government sources have told NDTV that they didn't find anything wrong as of now
and the incident appears to be a 'procedural error'.

The AN-124 aircraft of Russian origin carrying ammunition and eight persons on
board entered into Indian airspace without the right code and ATC clearance,
following which it was escorted to Mumbai airport by Indian Air Force planes.

5. Air India plane lands in Mumbai without ATC clearance

 79

Saurabh Sinha, TNN Apr 13, 2013, 02.52AM IST

NEW DELHI: Mumbai came close to an aviation disaster on Friday morning when an
Air India aircraft landed at the busy cross-runway airport without clearance. Luckily,
there was no other aircraft movement on the runway or approach funnel at the time.
Flight AI 944 was coming from Abu Dhabi with 81 passengers and took air traffic
controllers by surprise when it landed there around 7am. Director general of civil
aviation (DGCA) Arun Mishra confirmed the incident and said both the pilot and co-
pilot have been de-rostered.

6. Records from the airline show that on March 20, a pilot operating a flight from
Shillong to Kolkata decided at the last minute to change the runway he would use to
take-off. Close to 30 passengers were on board. Records show there were strong
winds near the airport. So the pilot decided to abandon Runway 04, used for virtually
every plane taking off from Shillong. That's because the other runway -22 - is very
short and faces a range of hills, factors that could lead to a crash. Alliance Air in fact
forbids its pilots from using Runway 22 - a diktat the pilot ignored at the last minute.

The safety violation was noted by the Air Traffic Control (ATC) at the Shillong
Airport but it did not file a complaint with the Directorate General of Civil Aviation
(DGCA), the regulatory body for all airlines.

7. DGCA grounds erring pilot, but Air India lets him fly
NEW DELHI: Shockers from the Mumbai landing-sans-ATC-nod incident don't seem
to end. It has now emerged that the captain — who was grounded by the directorate
general of civil aviation (DGCA) on Friday afternoon for the unauthorized landing in
Mumbai earlier that morning — operated yet another return flight from Mumbai a day
later!

The blatant disregard of DGCA's grounding order happened when the captain
operated a Mumbai-Bangalore-Mumbai (AI 603) flight on Saturday morning. The
airline took him off flying duty only after he returned to Mumbai, when TOI had
frontpaged the story on the incident and the fact that the pilots involved in that had
been de-rostered.
 80

A senior DGCA official said: "This is unacceptable and we will probe how did the
airline let a grounded captain operate flights."

An AI spokesman said: "The DGCA communication had not reached us till the time
the captain operated the Mumbai-Bangalore-Mumbai flight on Saturday. After
returning to Mumbai, the captain met DGCA officials and we got to know of his
grounding order. He was then de-rostered (taken off flying duty)." Interestingly the
airline let the grounded captain to operate the return Bangalore-Mumbai flight also,
by when the news of his de-rostering order had become public.

Airline sources indicated how DGCA directives for de-rostering licenced staffers —
pilots, engineers and cabin crew — are taken lightly. "This incident of pilots landing
without ATC clearance happened on Friday morning and the DGCA action came
happened by late afternoon. But till we get the grounding order in writing, why should
we act just on hearsay?" said an official.

CVR may hold key

The real reason for delayed response by airlines, however, may be completely
different. Cockpit voice recorders (CVR) have a recording loop of three hours. Which
means, they retain only last three flying hours' conversation in the cockpit by
recording over previous statements in a loop.

"CVRs contain exactly what was happening inside cockpits when any incident
happens. Not reporting an incident on time means the plane's CVR will not be seized
and the plane will go for other flights, erasing the conversation inside the cockpit at
the time when the incident happened. That's why all airlines delay reporting incidents
and taking action against their pilots," said an industry veteran who has taken part in
many investigations.

8. A senior airport official and a helpful fireman at the Tirupati airport guided a Jet
Airways flight carrying around 60 passengers to land on the morning of January 9 as
the two air traffic controllers were not available at the time.
 81

It might sound straight from a Hollywood movie, but the Airports Authority of India
(AAI) is not amused and is mulling disciplinary action against officials for the major
lapse.

On January 9, a Jet Airways flight from Hyderabad was readying to land in Tirupati
airport in Renuguntta. However, the two (Air Traffic Control) ATC officials were not
present at that point of time.

According to officials, V Janarthanan, deputy general manager at the airport panicked,

and asked a fireman at the airport to relay to the pilot what he would tell him on the
phone.

The Jet Airways plane made a smooth landing with the passengers unaware that a
fireman had helped the pilot to land.

When asked about the incident D Devaraj, regional executive director at AAI told
IANS: "We are taking action against the concerned officials."

An AAI team conducted an enquiry into the episode and has submitted its report.

As to the reason for the absence of two ATCs - "What will you do when you fall sick
and not able to go to office? You will inform office that you won't be coming in. That
is what happened at Tirupati," said Mr Devaraj.

He said the fireman happened to be at the ATC tower at that point of time and was not
deputed to guide the incoming flight.

A Tirupati airport official told IANS that there are set procedures to be followed
during such times.

"The landing of the aircraft could have been delayed. Planes normally have sufficient
fuel to circle (the airport) till the clearance for landing is given," he said.

The plane could have also been redirected to Chennai which is just 15 minutes away.
 82

Despite several attempts V Janarthanan was not available for comments or

clarification.

9. A kingfisher ATR 72-500 aircraft going to Jamnagar in Gujarat with 30 passengers

was given clearance to take off by Air Traffic Controllers (ATC) around 1:30 pm,
when it was ready to take off, it was asked to abort.

There was another aircraft GO Air which had just landed was also asked to vacate a
runway but instead of exiting from there, it exited from another taxiway.

This meant that both aircraft at some point were on the same runway, but sources say
they were not on collision course.

The Kingfisher plane was ordered to move from the main runway to the taxiway 300
metres away for another Kingfisher flight from Delhi to land. The sudden maneuver
required of the pilot went off smoothly.

Meanwhile another Kingfisher aircraft was coming in to land from Delhi, at that point
the runway was still occupied by two aircraft - Kingfisher ATR and Go Air.

Ideally ATC should have asked the incoming Kingfisher airline to go circling since
there were two planes on the ground.

But airport officials stress there was no danger of a collision. They say that while
there was enough time for the Kingfisher flight to move safely off the runway, this is
a case of bad traffic planning by Air Traffic Controllers.

There are reports that there was less than ideal separation between two Kingfisher
aircraft and it could have been dangerous.

However, Kingfisher sources say, there was separation of 8 nautical miles and it was
safe distance.
 83

All this happened in a span of 3-4 minutes.

In keeping with Kingfisher airlines policy of safety and guest comfort above
everything else and in accordance with established procedure, the commander decided
to return to bay and get the aircraft checked after seeking the concurrence of Mumbai
ATC.
The aircraft an ATR 72-500 was checked by an engineering team and took off at
14:50 with all 30 guests and crew on board.

Statement from Kingfisher Airlines:

Shortly after Kingfisher Airlines fight IT 4123 operating Mumbai to Bhavnagar had
been cleared for takeoff by the ATC Mumbai at 13:36. The commander of this flight
was directed by ATC to reject take off immediately.

The Aircraft which was on its initial take off roll immediately aborted takeoff at low
speed in compliance with instructions of ATC.

In keeping with Kingfisher airlines policy of safety and guest comfort above
everything else and in accordance with established procedure, the commander decided
to return to bay and get the aircraft checked after seeking the concurrence of Mumbai
ATC.

The aircraft an ATR 72-500 was checked by an engineering team and took off at
14:50 with all 30 guests and crew on board.

10. Scare at Delhi airport after plane goes off radar

Press Trust of India | Updated: January 28, 2010 23:38 IST
Absence of communication between a Kingfisher Airlines flight carrying 50 people
from Amritsar to Delhi and the Air Traffic Control (ATC) in New Delhi for about five
to seven minutes led to a 'hijak' alert at the Indira Gandhi International Airport on
Thursday evening.
 84

The ATC sources said that turbo-propped ATR aircraft, during its 40-minute flight,
was not in communication with the ATC for about seven minutes, triggering the alert
issued by Indian Air Force (IAF) communication wing.

Security personnel at the airport were in a tizzy for a while following the alert, they
said adding the picture became clear soon after the contact resumed between the plane
and the ATC.
 85

CONCLUSIONS &
SUGGESTIONS
In my opinion and as a student I would like to share that it always fascinated me
about how a plane so efficiently carries passengers and what makes an
aeroplane. After the incident of 9/11 we all have been concerned about our safety
and what the government as an entity to protect our being is doing. In this study
I got to know about how exactly theory and practical are way different in reality
and what makes a theory to constitute something so practical as a code to protect
and regulate violations on the government’s front. Also I would like to suggest
that we need to reconsider our laws which are very narrow in nature and to also
look at the recent violations which are taking place inspite of so much
prevention. These small violations can one day lead us to a bigger disaster which
we all will regret.

Ateepriya Bhatia
 86

BIBLIOGRAPHY
PRIMARY SOURCES:
CONVENTIONS REFERRED:
TABLE OF CONTENTS

The Chicago Convention, 1944

The International Air Services Transit Agreement, 1944

The International Air Transport Agreement, 1944

Protocol on the Authentic Trilingual Text of the Convention on International Civil Aviation, 1944

The Protocol on the Authentic Quadrilingual Text of the Convention on International Civil Aviation, 1944

The Warsaw Convention, 1929

The Hague Protocol, 1955

The Guatimala City Protocol, 1971

The Additional Protocol No. 1, 1975

The Additional Protocol No. 2, 1975

The Additional Protocol No. 3, 1975

The Montreal Protocol No. 4, 1975

The Guadalajara Convention, 1961

The Geneva Convention, 1948

The Rome Convention, 1952

The Tokyo Convention, 1963

The Hague Convention, 1970

The Montreal Convention, 1971

The Montreal Protocol, 1988

The Montreal Convention, 1991

The Montreal Convention, 1999

The Cape Town Convention, 2001

The Cape Town Protocol, 2001

 87

AGREEMENT BETWEEN PAKISTAN AND INDIA ON PREVENTION OF AIR SPACE

VIOLATION

STATUTES REFERRED:

1. The Aircraft Act, 1934

2. The Aircraft Rules, 1937

3.The Aircraft Rules, 1994 (Demolition Of

Obstructions Caused By Buildings And
Trees Etc.)

4.The Aircraft (Carriage of Dangerous

Goods) Rules, 2003

SECONDARY SOURCES:
1- SPACE LAW - GYULA GAL
2- SPACE LAW - C.WILFRED JENKS
3- RIGHTS IN AIR SPACE - D.H.N.JOHSON
4- PUBLIC INTERRNATIONAL LAW - TANDON & TANDON

NEWSPAPER AND NEWS CHANNEL REFERRED:

Ndtv
Times Of India
Hindustan Times
Deccan Chronicle
Zee News
Aajtak
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REMARKS
 89

THANK YOU