1

Evolution of Air Laws in International Law:

The first engine-powered flight had successfully been carried out by the Wright Brothers
in 1903, The first concerted attempt at codification on an international scale took place
before 1910, when German balloons repeatedly made flights above French territory.
The French Government was of the opinion that for safety reasons it would be desirable
for the two governments involved trying and reaching an agreement to resolve the
problem.

As a result the Paris Conference of 1910 was convened; the tendency of the
conference did not adopt the idea of ‘freedom of the air’ but was in favor of the
sovereignty of states in the space above their territories, which was reflected on the
draft convention at the plenary session of the conference. Following the 1st World War,
the first scheduled air service between Paris and London come into force on 8 Feb
1919, the existing regulations was considered incorporated into a convention. But a
choice had to be made between a free airspace analogous to the principle of maritime
law, and an airspace governed by the sovereignty of the states. No matter the rule of
Air Law was to be made subject to the rules existent to regulate other means of other
transportation like rail, road or sea. Air Law in a general viewpoint that covers an area
which is determined by the special characteristics and demands of aviation, but
whenever this implies a departure from the existing law, the justification for this
departure must be most carefully assessed and weighed. Between those two poles Air
Law will have to find its range and its limits thereof.

A basic principle of international air law is that every state has complete and
exclusive sovereignty over the airspace above its territory, including its territorial sea.
The Principle is restated in the Chicago Convention on International Civil
Aviation (1944).

Inner Air Space Laws (30 Kms or 19 Miles inside Territory) or 98,425 feet

Organization: ICAO International Civil Aviation Organization

Treaty on Air Space law: 1944 -Chicago Convention on International Civil Aviation
signed on 07.12.1944 implemented / enforced on 04.04.1947 initially 52 signatories of
this treaty.

(i) Law Making Treaty

(ii) Codified the existing Air Laws
(iii) Establish an International Organization ICAO
(iv) To maintain Sovereignty in Air Space
(v) To Safe guard safety in Air Space
(vi) To codify Air Laws in Orderly manner
 2

(vii) Applicable to Civil Air Crafts

(viii) Developed Schedules Air Services
(ix) Prohibited Areas declared
(x) Air Routes Determined
(xi) Rules for Landing at Air Ports
(xii) Prevention and spread of Diseases
(xiii) Air Port Charges
(xiv) Search of Air Crafts
(xv) Nationality of Aircraft Registration
(xvi) Discouraged Dual Registration
(xvii) Display of Mark and country emblem
(xviii) International Carriage Laws
(xix) IATA – The International Air Transportation Association

Theories in Air Space Laws

According to the various draft conventions and materials as above mentioned, an

analysis of the following theories regarding jurisdiction to which is resorted:

1. The Territorial Theory – the law of the state in whose airspace the offence has
taken place will be applied by its national courts. Clearly it is not always possible to
determine the exact position of the aircraft at the time the offence was committed;
for that reason is impracticable for a state to base its jurisdiction solely on this
principle.

2. The National Theory – according to this theory the law of the state where the
aircraft is registered is always applied.

3. The Mixed Theory – side by side with the law of the aircraft’s nationality and
the law of the state over which the aircraft passes is enforceable whenever the
security or public order of such state is threatened by offences committed on board.

4. The theory of the law of the state of departure.

5. The theory of the law of the state of landing.

Penal Law and Aviation

In the past few years, the development of new rules and sanctions were tensed as
to the criminal offence happened in flight become frequent. There are three
international conventions governing the provision of penal law in the aspect of
aviation. They are:
 3

1. The Convention on Offences and Certain Other Acts Committed on

Board Aircraft, signed at Tokyo on 14 September 1963 (Tokyo
Convention-1963)

2. The Convention for the Suppression of Unlawful Seizure of Aircraft,

signed at the Hague on 16 December 1970 (Hague Convention-1970)

3. The Convention for the Suppression of Unlawful Acts against the Safety
of Civil Aviation, signed at Montreal on 23 September 1971 (Montreal
Convention-1971)

Outer Space Laws above 30 Kms in Air

According to the United Nations Office for Outer Space Affairs (UNOOSA), which is
tasked with promoting international cooperation in the peaceful uses of outer
space, space law is the "body of law applicable to and governing space-related
activities."

The five sets of legal principles adopted by the United Nations General Assembly
provide for the application of international law and promotion of international
cooperation and understanding in space activities. These five declarations and legal
principles are:

1. The Declaration of Legal Principles Governing the Activities of States in the

Exploration and Uses of Outer Space;

2. The Principles Governing the Use by States of Artificial Earth Satellites for
International Direct Television Broadcasting;

3. The Principles Relating to Remote Sensing of the Earth from Outer Space;

4. The Principles Relevant to the Use of Nuclear Power Sources in Outer Space;

5. The Declaration on International Cooperation in the Exploration and Use of Outer

Space for the Benefit and in the Interest of All States, Taking into Particular Account the
Needs of Developing Countries.

Moon Treaty 1979- in order to implement UNGA Resolution NO 2222 Dated

19.12.1966 –

Outer Space Laws Codified:

When the first satellite launched by USSR in 1957 in Space. In 1959 the UN General
Assembly created the Committee on the Peaceful Uses of Outer Space (COPUOS),
through Resolution 1472 (XIV), for the discussion and codification of International
Space Law. During a period of thirteen years (1967-1979) COPUOS (The Committee
 4

on the Peaceful Uses of Outer Space (COPUOS) was set up by the General Assembly
in 1959 to govern the exploration and use of space for the benefit of all humanity:
for peace, security and development. The Committee was tasked with reviewing
international cooperation in peaceful uses of outer space, studying space-related
activities that could be undertaken by the United Nations, encouraging space
research programmes, and studying legal problems arising from the exploration of
outer space) produced the five international space treaties and conventions existing
today. Number of Member States in the Committee: 71

The United Nations’ Treaties on Space Law governing space-related activities of States
in Outer Space. These five treaties and agreements are:

1. The Outer Space Treaty 1967, entered into force on 10 October 1967;

2. The Rescue Agreement, 1968, entered into force on 3 December 1968;

3. The Liability Convention, 1972, entered into force on 1 September 1972;

4. The Registration Convention, 1975, entered into force on 15 September 1976;

5. The Moon Agreement, 1979, entered into force on 11 July 1984.

International space treaties deal with commercial utilization of space by any country,
arms control in space, liability for damage caused by space objects, the safety and
rescue of spacecraft and astronauts, the prevention of harmful interference with space
activities and the environment, the notification and registration of space activities,
scientific investigation and the exploration of natural resources in outer space and
settlement of disputes.

The United Nations Outer Space Treaty of 1967.

One of the most important bodies of space law is the United Nations "Outer Space
Treaty." It lays out several rules that dictate how countries must behave in space.
Article VI of the Outer Space Treaty, 1967 prescribes that "States Parties to the Treaty
shall bear international responsibility for national activities in outer space, including the
moon and other celestial bodies, whether such activities are carried on by governmental
agencies or by non-governmental entities.
Article I of the Liability Convention,1972 defines the term “launching state.”
Launching State means "a state which launches or procures the launching of a space
object, or a State from whose territory or facility a space object is launched. Article II
establishes absolute liability for damage caused on the earth or to aircraft in flight. In
 5

other words, no proof of damage caused on earth or to aircrafts in flight is required to

be proffered by the claimant.
Article IV allows mitigation of liability on the basis of proof of gross negligence on the
part the claimant. On the other hand, Article III of the Convention establishes fault-
based liability for damage caused in outer space. Article VII exonerates the launching
state from liability in respect of nationals of launching state and foreigners
participating in launch. National legal system needs to be in place for the
reimbursement of the compensation to the State which has been required to pay to the
victim(s) of an accident by the space object of a private person.
The Agreement on the rescue of astronauts, the return of astronauts and the return of
objects launched into outer space gives detailed resolution to the duty imposed on
State parties in terms of Article V of the OST 1967.
The Registration Convention, 1975 provides a mandatory system for the
registration of objects, which provides for both substantive and procedural obligations
for States to implement at the national level.

1. Space is common ground and everyone is allowed to explore it.

2. But anyone exploring space has to do it peacefully.
3. That means no military bases.
4. And it's not just military bases — no country can claim any land in space.
5. The "Moon Agreement" elaborates on the idea that no country can own any
celestial object.
6. Anything that launches into space has to be registered.
7. If there's a spaceship crash, the state is held responsible for the damage.
8. In fact, people were so worried about damages from space exploration, that they
created a whole separate liability treaty.

9. No one is supposed to contaminate space.

10. The "Rescue Agreement."
11. US citizens can now harvest minerals from asteroids.

Moon Treaty 1979- in order to implement UNGA Resolution NO 2222 Dated

19.12.1966 –

Rescue Agreement-1968

The UN General Assembly adopted the text of the Rescue Agreement on

19 December 1967 through Resolution 2345 (XXII). The Agreement opened for
signature on 22 April 1968, and it entered into force on 3 December 1968.
 6

Supreme Court of Pakistan in Societe Generale De Surveillance S.A. v. Federation of

Pakistan held: Treaty were not incorporated through legislation into the laws of the
Country, rights arising there from can not be forced through Court as in such a
situation, the Court is not vested with the power to do so”. According to Article 175(2)
of the Constitution of Islamic Republic of Pakistan, no court has any jurisdiction unless
conferred by or under any law or the Constitution, therefore, treaty unless was
incorporated into the law so that it become part of Municipal Laws of the Country, no
Court shall have jurisdiction to enforce any right arising there from”. – Societe Generale
De Surveillance S.A. v. Federation of Pakistan (2002 SCMR 1694),

Article 70(4) of the Constitution confers power to Parliament to make laws for
implementing international obligations arising from ratification of treaties under Federal
Legislative List, Fourth Schedule, Part -1, Item 32. Article 142 empowers Majlis-e-
Shoora (Parliament) and Provincial Assembly to make laws in respect of the matters
mentioned in the Federal Legislative List, while both the Federal and Provincial
Legislatures have the powers to legislate in respect of the matters mentioned in Federal
Legislative List. In case any subject is not enumerated in legislative lists, the Provincial
Legislature could legislate by virtue of Article 142 (c) of the Constitution.

Before the First World War, there were various theories dealing with the legal status of
air space above States. One theory considered that the air space was entirely free and
subject to no sovereignty. Another considered that there was a zone of “territorial air”,
analogy to the “territorial sea”, under the sovereignty of a State followed by a higher
free zone. A third theory considered that all the air space above a State was entirely
within its sovereignty; while a fourth theory modified this view by positing a right of
innocent passage through the air space for foreign civil aircraft. Nevertheless, all
theories agreed that the air space above the high seas and terrae nullius was free
and open to all States.

The outbreak of the First World War in 1914, with its recognition of the security
implications of the use of the air space led to the arise of a new rule of customary
law. The military use of aircraft during the First World War meant that any rule which
did not satisfy States’ concern of security would not be acceptable by them on security
grounds. States would not content with anything less than a complete sovereignty
over their air space, unlimited by any right of innocent passage. Since then, the
customary rule has been that aircraft of one State have a right to fly over the high seas,
but not over the territory or territorial sea of another State. This rule is reaffirmed by
 7

the 1944 Chicago Convention on International Civil Aviation,[ which provides that
“every State has complete and exclusive sovereignty over the airspace above its
territory”. The territory of a State consists “the land areas and territorial waters
adjacent thereto under the sovereignty, suzerainty, protection or mandate of such
State”.

Sovereignty of a State was understood to extend for unlimited distance into the
airspace above its territory. However this view has been modified by the law of outer
space.

To understand the contemporary international law concerning air space and outer
space, it is necessary to devote the first section of this chapter to deal with the law of
air space, followed by the second section dealing with the law of outer space.

The Law of Air Space

The present law of air space which is centered on the regime concerning air navigation
has developed from the Chicago Conference of 1944 and the conventions adopted there
(such as, the 1944 Chicago Convention on International Civil Aviation, the 1944 Chicago
International Air Services Transit Agreement, and the 1944 Chicago International Air
Transport Agreement). The 1944 Chicago Convention on International Civil Aviation is
an international multilateral agreement concluded at the 1944 Chicago
Conference. This Convention lays down the fundamental principles of international air
law and establishes the International Civil Aviation Organization (ICAO) as one of the
specialized agencies of the United Nations.

The 1944 Chicago Convention does not bring any major change in the international law
of air, previously codified in the 1919 Paris Convention for the Regulation of Aerial
Navigation. It does state more detailed and refined rules, reflecting agreements on
standards of air navigational practices. It does not, however, provide the legal
framework for international air traffic, which has been left to be regulated by bilateral
agreements. Accordingly, States have concluded many reciprocal bilateral agreements
concerning routes and traffic volume.

The Chicago Convention reaffirms the basic principles of customary international air
law. It provides that every State has complete and exclusive sovereignty over the
airspace above its territory. It states the principle that aircraft have the nationality of
the State in which they are registered (notably, many rules governing aircraft, provided
in the Convention, have been copied from the rules governing ships). It makes a
distinction between scheduled and unscheduled air services. No scheduled international
air service of one State may be operated over or into the territory of another State,
except with the special permission or other authorization of that State, and in
accordance with the terms of such permission or authorization. Aircraft not engaged in
 8

scheduled international air services have the right to make flights into or in transit non-
stop across the territory of another State, and to make stops for non-traffic purposes
without the necessity of obtaining prior permission of that State, subject, however, to
the right of the State flown over to require landing, or to impose certain restrictions,
such as routes and off-limit areas.

The Chicago Conventions applies only to civil aircraft, not to State aircraft which are
used in military, customs and police services. State aircraft have no right to fly over the
territory of another State or land thereon without authorization by special agreement or
otherwise, and in accordance with the terms thereof.

The principle of complete and exclusive sovereignty over the national airspace is a
firmly established rule of customary International Law. It is unquestionably principle of
the most fundamental principles of contemporary International Law. It is, however,
qualified by various multilateral and bilateral conventions which permit aircraft to cross
and land in the territories of the contracting States.

Violation of national airspace by unauthorized foreign aircraft is a serious breach of

International Law, and has led to many international incidents and disputes. It has
been questioned whether there exists a right of passage through the airspace over
States, based upon the apparent similarity of treatment as regards sovereignty between
the airspace and the territorial sea which centers upon the right of innocent passage
that exists through territorial waters. It is now accepted that no such right may be
exercised in customary International Law. Aircraft may only traverse the airspace of
states with the agreement of these states, and where such agreement has not been
obtained an illegal intrusion will be involved which will justify interception, though not
(save in very exceptional cases) actual attack.

The principle of complete and exclusive sovereignty over national airspace does raise an
important and controversial question regarding the boundary between national airspace
and outer space. This question remains undetermined and uncertain in International
Law, because there is no agreement on the boundary between national airspace and
outer space, and none of the conventions contains any provisions on the precise point
where the airspace ends and outer space begins. Thus, the rule that the sovereignty of
a State extends over its airspace to an unlimited height has been one of the
fundamental principles of the law of airspace. However, this rule has been substantially
modified as the result of the creation and development of the new law of outer
space. This matter is discussed below.
 9

The Law of Outer Space

Ever since the Soviet Union launched the first artificial satellite in 1957, space has
constituted a new frontier to be discovered. Space technology and exploration have
developed at an unimaginable rate. International Law has had to keep pace with the
rapid progress in this field. The need to establish a legal regime to govern the activities
in the outer space has been the central concern of the International Law. Thus the law
of outer space has emerged providing such legal regime to govern outer space and the
activities therein.

Between the years 1957 and 1963, the General Assembly of the United Nations adopted
six resolutions applicable to outer space. These resolutions were incorporated in the
year 1967 in “the Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies”
(known in short as “the Outer Space Treaty of 1967”).

The 1967 Outer Space Treaty is an international multilateral agreement setting forth the
fundamental international principles governing the outer space. The outer space is the
zone beyond the airspace surrounding the earth. The Boundary between the airspace
and outer space is an issue which remains undetermined and uncertain. Neither the
1967 Outer Space Treaty nor any other conventions or treaties concerning airspace or
outer space contains any provision on the precise point where the airspace ends and
outer space begins. Although States, so far, have not feel the urgency to establish a
demarcation line between airspace and outer space, their practice provides sufficient
evidence for the existence of the international rule that although national sovereignty,
for security reason, must extend over the airspace up to a certain limit, it ends at some
attitude above the earth. No State has insisted on its sovereignty to an unlimited
height. All States have conceded to unlimited over-flights of foreign satellites and
spacecraft over their territories. This practice infers that the sovereignty of a State over
its airspace is limited in height at most to the point where the airspace meets the space.
To determine such a point, proposals have been suggested basing on a variety of
scientific and technological criteria. Among these criteria are the theoretical limits of air
flight or the lowest altitude at which an artificial satellite can remain in orbit; these
criteria place the boundary of the airspace at around 50 to 100 miles

Wherever outer space may begin, it is governed by International Law, including the
Charter of the United Nations. The international law of outer space consists mainly of
the 1967 Outer Space Treaty, the 1968 Rescue of Astronauts Agreement, 1972 Liability
for Damage Caused by Space Objects Convention, the 1974 Registration of Objects in
Space Convention, and the 1979 Agreement Governing the Activities of States on the
Moon and Other Celestial Bodies (the Moon Treaty). Beside these multilateral
 10

agreements, there are numerous regional and bilateral agreements on outer space
cooperation, research and communications.

The international law of outer space provides the fundamental principles relate to the
outer space. Among these principles are:

1. Prohibition of national appropriation: Outer space, including the moon and other
celestial bodies, is not subject to national appropriation by claim of sovereignty, by
means of use or occupation, or by any other means. Outer space is “the common
heritage of mankind” (res communis).

2. Freedom of exploration: Outer space, including the moon and other celestial
bodies, is free for exploration and use by all States without discrimination and in
accordance with International Law, and there is free access to all areas of celestial
bodies.

3. The province of all mankind: The exploration and use of outer space, including
the moon and other celestial bodies, shall be carried out for the benefit and interests of
all countries, irrespective of their degree of economic or scientific development.

4. Ban on weapons of mass destruction: It is prohibited to place in orbit around the

earth any objects carrying nuclear weapons or any other kinds of weapons of mass
destruction, and to install such weapons on celestial bodies, or station such weapons in
outer space in any manner.

5. The demilitarization of the moon and other celestial bodies: The moon and other
celestial bodies shall be used by all States exclusively for peaceful purposes. The
establishment of military bases, installations and fortification, the testing of any type of
weapons, and the conducting of any military actions on the celestial bodies are
forbidden.

6. The liability for damages: A State launching or procuring of launching of an object

into outer space, including the moon and other celestial bodies, and the State from
whose territory or facility an object is launched is internationally liable for damages
caused to another State or to its nationals by such object or its component parts on the
earth, in air space or in outer space, including the moon and other celestial bodies.

7. Ownership of objects launched into outer space is not affected by their presence
therein, or by their return to earth.

8. A State on whose registry an object launched into outer space is carried retains
jurisdiction and control over such object, and over any personnel thereof, while in outer
space or on a celestial body.
 11

9. The duty to avoid harmful contamination and adverse changes in the

environment.

10. The duty to provide assistance to space vehicles and astronauts in distress, and to
return them safely and promptly to the State of registry of their space vehicle.

11. The duty to inform the Secretary-General of the United Nations as well as the
public and the international scientific community of the nature, conduct, locations and
results of their activities in outer space, including the moon and other celestial bodies.

12. The duty to open all stations, installations, equipments and space vehicles on the
moon and other celestial bodies to representatives of other States for inspection.

Despite the growing body of rules of the international law of outer space, much
remains to be done, particularly in the field of military uses of outer space, space
navigation, telecommunications, and the unresolved question related to the boundary
between the airspace and outer space.