Mar 10, 2008

Air and Space Law, Peace Palace Library

Air and Space Law

Space dog Laika.

Air Law and Space Law are disciplines in international law of quite recent date. At the same time, however, they cover the Carnegie Foundation's first century. After the Wright brothers successfully launched the first plane in 1903 the twentieth century became an era in which the significance of the power driven aircraft was only to grow. The rise of commercial aviation diminished global distances. The discovery of outer space (Sputnik in 1957, dog Laika in 1958, Yuri Gagarin in 1961, Apollo 11 on the Moon in 1969) added a fresh element. With the International Space Station under construction, Space Law has become a defining legal aspect of our age.

Air Law, history, scope and definition

It is rather remarkable that air law preceded the actual technology involved. Air law was being formulated even before the Wright Brothers' take off. Paul Fauchille wrote his seminal article "Le domaine aérien et le régime juridique des aérostats" in 1901, in volume 8 of the still young French scholarly journal Revue Générale de Droit International Public founded in 1893. He presented his views at a meeting of the Institut de droit international in Neuchâtel in 1900. Aircraft inthe way the Wright Brothers envisaged it, power driven and navigable, was as yet unknown and unforeseen, and therefore naturally left out of Fauchille's considerations. Within a few years his approach, the general legal framework of air law and its details, mostly concerned with sovereignty over airspace, became obsolete for its lack of realism.
Johanna (Jenny) Francina Lycklama à Nijeholt, De Luchtvaart in het volkenrecht ('Aerial Navigation according to the Law of Nations').

Dutch interest In the Netherlands the first doctoral thesis on air law, by Johanna (Jenny) Francina Lycklama à Nijeholt,De Luchtvaart in het Volkenrecht ('Aerial Navigation according to the Law of Nations'), was published in 1910. Like all pioneers she compared air law with the legal regime of the seas. Was air a 'mare liberum'? Was air a 'res nullius'? Is air free without limitations, free except for certain sovereignty rights of the ground state required in the interest of self-preservation, e.g. limitations up to the height of 1000 m? Is there a lower zone of territorial airspace or do ground states have exclusive rights to the superincumbent air column, with the addition of a servitude of innocent passage for foreign non-military aircraft?

Legislating air In the Paris Convention of 1919 the complete sovereignty regulation was formulated in Article 1 and the still valid 1944 Chicago Convention worded the innocent passage element. National interests prevailed after the First World War but in 1920 the battle for the freedom of the air was fought and legally settled.

In an appendix in Lord A.D. McNair's The Law of the Air (1964) reference is made to the history of the maxim (uncommon, of course, from a Roman Law point of view) "cujus est solum, ejus est usque ad coelum et ad inferos" ("Whosoever has the soil, also owns to the heavens above and to the center beneath"); the maxim's current meaning is brought about by 20th century air traffic.

In the United Kingdom Shawcross & Beaumont compiled a loose leaf publication that has been continuing until today, entitled, quite simply, Air Law. In France we find Marcel Le Goff's Manuel de droit aérien, droit public (1954) and Maurice Lemoine's Traité de droit aérien (1947). In Germany at the Institute for Air and Space Law in Cologne Karl-Heinz Böckstiegel is the leading figure in the field.

The Dutch tradition was continued in the second half of the twentieth century by the Utrecht University professor Isabella Henrietta Philepina Diederiks-Verschoor. She became a prominent scholar of international reputation. Professor Diederiks-Verschoor is best known for An Introduction to Air Law and her Introduction to Space Law.

Because of issues closely related to air law, like airport security, air piracy, hyjacking, terrorism (cases such as KAL 007 and Lockerbie), air law is considered as one of the focal topics in international law. Fare bargaining and landing rights, noise, pollution and influence upon rural and urban planning touch international law.

Space law, a Cold War phenomenon? Tanja L. Zwaan, then co-director of the International Institute of Air and Space Law at Leiden University, started her contribution to Space Law: Views of the Future (1988) with the following statement: "Too many publications dealing with outer space law start with the words: 'After the launching of the first Sputnik in 1957...'" ("The Influence of the Achievements and Failures of the Past on the Future of Outer Space Law"). Other scholars, however, trace the origins of space law to as far back as 1934, when Eygene Korovin, professor of international law at the Institute for Soviet Law in Moscow, published his article on the international legal aspects of the stratophere, "La conquête de la stratosphère et le droit international" in Revue Générale de Droit International Public (vol. 41, pp. 675-686). Korovin is seen as the father of scientific international space law in the Soviet Union. With surprising clairvoyance he foresaw that aviation in outer space ('stratosphère‘) would develop along the same lines as in the lower air layers: "Expérience scientifique et sportive d‘abord; instrument de guerre ensuite, et, enfin moyen perfectionné de commerce international" (p. 677). He concludes by relating the conquest of airspace to the problems of international security (p. 686).

In space law once again legal regulation, or at least preparations for formalization, preceded technology. Space law developed into a topic which was to be covered frequently by Soviet researchers in Russia and its satellite states. Manfred Lachs from Poland, Judge, later President at the International Court of Justice, published The Law of Outer Space: An Experience in Contemporary Law-Making in 1972. He advises to use analogies creatively and follow the most progressive tendencies in international law for the definition of the scope of space law (p. 21). In Chapter XII, 'The Law-Making Process', Lachs opposes the presumption that outer space had been "a lawless area or legal vacuum" since it had always been subject to international law (p. 135). The book is based on Lachs's lecture at the The Hague Academy of International Law, published in Recueil des Cours, 1964, pp. 1-116, 'The International Law of Outer Space'.

Soviet interest, Soviet interests Undoubtly the Soviet interest in space law relates to the Cold War, to East-West relations, Ballistic Missile Defense Systems, Anti-Satellites Satellites (ASAT'), to SDI (Strategic Defense Initiative) or Star Wars, to space war threats, arms race in outer space, military use of space, arms control in outer space, war prevention, demilitarization, disarmament of outer space and détente, and even to the desire for a nuclear weapon-free outer space zone. G.P. Zhukov and V.S. Vereschetin (as well as G.I. Tunkin) reflect the Soviet efforts to prevent war, a world war, an outer space war. They argue in favour of peaceful use of the outer space; they reject a customary international law and natural law to be applied to or to regulate outer space, because in the Soviet view legal relations in outer space have to be in accordance with general principles of international law: opposition against national appropriation of outer space, peaceful coexistence, international cooperation in exploring and using outer space for peaceful purposes.

Gennady Zhukov (with Yuri Kolosov) published International Space Law in 1984, a translation from the Russian original. In 1985 V.S. Vereshchetin, presently Judge at the International Court of Justice, co-authored a book on developments in international law regarding the Soviet programme towards peace. He promoted the peaceful exploration and use of outer space on various occasions, e.g., in the 1986 United Nations Institute for Disarmament Research (UNIDIR) publication Prevention of the Arms Race in Outer Space. In 1969, the year a small step for man but a giant leap for mankind was taken by Neil Armstrong, Hungarian scholar Gyula Gal published his Space Law. Gal uses line illustrations of vertical projections of state sovereignty over independently moving air and space columns so as to show why unlimited state sovereignty - usque ad infinitum - is incorrect when referring to positive law and to fundamental facts of natural science (p. 67). See also Aerospace Law (1969) by Nicolas Mateesco Matte, pp. 46-47.

The cover of Gal's book and some of the illustrations.

Nandasiri Jasentuliyana, internationally recognized author of the four volume Manual on Space Law (1979) and Deputy Director-General of the United Nations Office in Vienna and Director of the Office for Outer Space, summarized all issues on space and the United Nations in International Space Law and the United Nations (1999): "It was natural that this responsibility to regulate the new environment would fall upon the United Nations, which had been established to ‘maintain international peace and security‘" (p. 1).

Relevant developments towards codification were started by the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) in 1958. The Outer Space Treaty dates from 1967, an elaboration resulted in the 1979 Moon Agreement in which international use of the moon and exploration of its resources in particular were addressed. In the Moon Agreement the moon deliberately wasn't identified as res nullius, but as a res communis, a res extra-commercium or the common heritage of mankind.

For Grotius the freedom of airspace began beyond the range of a hunter's weapon. Today's space law is one of the newest branches on the tree of international law and follows developments in space technology. The steps defined in 1934 by Korovin appeared to be realistic after all: after the initial stage of adventure came the military involvement during the Cold War and today satellites in outer space are part of the earth' system of television broadcasting, telecommunication and maritime services through INMARSAT etc., and meteorological and other scientific research is performed in or monitored from outer space.

© Peace Palace Library, 2004

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