INTRODUCTION

The concepts of the airspace and outer space sovereignty are vital and foundational to the management and regulation of the atmospheric and extraterrestrial region that impact modern society. These regions are governed by distinct legal frameworks and principles reflecting their unique characteristics and the challenges they pose. A constant issue is the delimitation and sovereignty in the regions of airspace and outer space. The recurring question on “Who owns the air?”has been plaguing scholars for millennia. This could be because of the ancient Romans, who wondered about overhanging buildings and fruits growing on trees, or the Renaissance Justices asking who would own bird catches nesting in the trees growing on an estate, there is a rich jurisprudence tasked with unravelling this conundrum.

After the advent of human mechanism for flight, the question on “Who owns the air?” gained new depth, and this proved to be evermore relevant considering the successive leaps, bounds and innovations made by human beings in soaring through the sky initially, and then beyond into outer space. The recurring concern was not as regards whether a State would be sovereign over the space immediately adjacent to its terrain, but more to what height its authority would extend. A cogent example of an instrument essential in providing an answer to the constant question is the Convention on International Civil Aviation (CC44), which provides that every State, regardless of its membership, would have sovereignty over their airspace. However, the treaty failed to delimit clearly between the two domains of the airspace and outer space.

  • DEFINITION OF TERMS
  1. SOVEREIGNTY[1]

The term Sovereignty refers to the supreme authority or control that a state or governing body has over itself and its territory, free from external interference. The concept encompasses several dimensions. These dimensions are:

  1. Legal Sovereignty:

This is the authority of a state to create, enforce, and interpret laws within its territory. It is the basis for the legal framework that governs a state’s internal affairs and its relations with other states.

  1. Political Sovereignty:[2]

This pertains to the actual power and ability of a state to govern itself and make decisions independently. It involves the legitimacy and recognition of authority by both domestic and international actors.

  • Territorial Sovereignty:[3]

This refers to a state’s control over its geographical territory, including land, airspace, and maritime boundaries. It implies the exclusive right to exercise jurisdiction and enforce laws within these boundaries.

  1. Popular Sovereignty:

This is the principle that the ultimate source of political authority lies with the people. It emphasizes the role of citizens in legitimizing government authority through democratic processes like elections and referendums.

  1. THE OUTER SPACE

The Outer space refers to the vast, seemingly infinite expanse that exists beyond the Earth’s atmosphere and between celestial bodies. It is characterized by the absence of air, the near vacuum conditions, and the presence of cosmic entities and phenomena. The Outer space begins where the Earth’s atmosphere ends, approximately at the Kármán line, which is about 100 kilometers (62 miles) above sea level. Beyond this boundary, Space is characterized by a near-vacuum environment with extremely low pressure and density.

Physical Characteristics of the Outer Space are:

– Vacuum:

Outer space is mostly a vacuum, meaning it has extremely low pressure and density. The lack of air means there is no atmosphere to conduct sound or support life.

– Temperature:

Temperatures in the outer space can vary greatly depending on location. In direct sunlight, temperatures can rise significantly, while in the shadow of celestial objects, temperatures can plummet down to near absolute zero.

  • Cosmic Radiation:

Space is filled with various types of radiation, including cosmic rays and solar radiation. These high-energy particles and electromagnetic waves can be harmful to living organisms and spacecraft.

Celestial Bodies and Phenomena:

The Outer space contains stars, planets, moons, comets, asteroids, and other celestial bodies. It also features phenomena like black holes, nebulae, and galaxies. Also, there is the Interstellar Medium which exists in the space between stars, including gas (mostly hydrogen) and dust.

Legal and Scientific Perspectives:

The exploration and use of Outer Space are governed by international treaties such as The Outer Space Treaty of 1967[4], which establishes that Space shall be free for exploration and use by all countries and that celestial bodies cannot be claimed by any one nation. While Scientific Study proposes that the study of outer space is a major field of scientific research, including astronomy, astrophysics, and cosmology. Organizations like NASA[5] and ESA conduct research to explore space and understand its properties.

  1. THE AIRSPACE:

The Airspace refers to the portion of the atmosphere controlled by a specific jurisdiction, typically a nation, for the purpose of aviation and flight operations. It is divided into various classes and types based on the complexity of air traffic control and the types of aircraft operations permitted.

  • Vertical and Horizontal Boundaries:

Airspace extends vertically from the Earth’s surface upwards to the edge of outer space. Horizontally, it is defined by national borders and international agreements.

* Airspace Classes:[6]

Airspace is categorized into different classes (e.g., Class A, B, C, D, E, and G) based on the level of control and services provided. Each class has specific rules governing aircraft operations, communication requirements, and separation standards.

Types of Airspace:

  1. Controlled Airspace:

This includes Class A, B, C, and D airspace, where air traffic control (ATC) provides services to manage aircraft movements and ensure safety. It typically involves positive control, meaning ATC provides instructions and separation between aircraft.

  1. Uncontrolled Airspace:

This includes Class G airspace, where ATC services are not provided, and pilots are responsible for their own navigation and separation from other aircraft.

International Regulations:[7]

The International Civil Aviation Organization (ICAO) sets standards and regulations for airspace management and safety worldwide. The ICAO’s conventions and guidelines help standardize airspace classification and management across different countries. Airspace regulations and classifications may vary by country and region, but they generally adhere to ICAO standards to ensure international aviation safety.

1.2 SOVEREIGNTY IN THE AIR

The concept of Sovereignty in the Air has its history and origin with the maxim “Cujus est solum ejus est usque ad coelum et ad inferos” playing a fundamental role in it.[8] This Latin maxim translates to “Whoever owns the soil, it is theirs up to the sky and down to the depths.” This maxim reflects the principle that sovereignty over a piece of land extends vertically into the airspace above and the ground below. In modern international aviation law, this principle has evolved to accommodate the realities of air travel and international cooperation. While it is rooted in traditional property law, the application in aviation is governed by treaties and agreements, notably:

  1. The Chicago Convention (1944):

Formally known as the Convention on International Civil Aviation, it establishes the framework for international aviation. Article 1 of the Convention asserts that every state has complete and exclusive sovereignty over the airspace above its territory, while also emphasizing that this sovereignty must be exercised in accordance with the Convention and international agreements.

  1. The Outer Space Treaty (1967):

While primarily concerned with outer space, this treaty reinforces that airspace is subject to national sovereignty but should be used for peaceful purposes and in accordance with international law.

These legal frameworks ensure that while states maintain sovereignty over the airspace above their territory, they must do so in a manner that respects international norms and agreements. This provision has a rich history in various jurisdictions, most notably in the Common Law,[9] which eventually led to its almost universal spread even up to the 19th century, with some European civil codes, even including it in their provisions.[10]

The delimitation between airspace and outer space is a complex and somewhat arbitrary boundary, primarily defined by international law and scientific conventions. While the Kármán Line is widely recognized and used as a practical boundary between airspace and outer space, legal definitions vary, and the transition is more gradual than a definitive line.

1.3 SOVEREIGNTY IN OUTER SPACE

While Air Law has had several decades to evolve and become well established, Space Law is still in a relatively formative stage, adapting to the rapidly advancing field of space exploration and commercial activities: the main instrument to which one must refer when looking at the field is certainly the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (OST), which was drafted amid the Cold War, a topical moment which affected this and the following treaties that attempted to provide a legal framework to deal with this new frontier. It is unsurprising that the Member States opted to shy away from any notion of sovereignty being extended to encompass Outer Space, going so far as to define it as a res communis omnium[11] with all the legal consequences that such a statement entailed. Regardless of this discourse there is, to date,[12] no such thing as sovereignty in Outer Space.[13]

2.1 DEMARCATION OF THE AIR AND OUTER SPACE

The main reason that is upheld by those in favor of a clear demarcation between the two regions (Airspace and Outer space) is the different legal systems involved. Having such a limit would solve the issue of passage of spacecraft[14]over a State‘s territory and inside its airspace.[15] The clear problem with the stated need to establish a definition of a border between the two regions is the lack of any universally accepted criteria that would allow for such a definition to be relevant. While this is true, the regions are otherwise easily distinguishable when it comes to the tools being used in them.[16]

Lastly, it seems another issue about current space activities is that of accidents and liability for damage caused by a space object: as per the OST and the Convention on International Liability for Damage Caused by Space Objects of 1972 (LIAB), the region in which the accident was to happen is irrelevant, as both airspace and outerspace are mentioned. The same argument can be made for the Convention on Registration of Objects Launched into Outer Space (REG) and the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (ARRA).

While, as mentioned, there is no agreement on the Sovereignty of the airspace and outer space, many States seem to rally behind the idea of a boundary at a vertical height of around 100 kilometres. While this number may have a strong backing, there is no consensus: the question of delimitation and demarcation has been on the agenda of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) for over five decades,[17] and the latest update consisted of the acknowledgement that the only solution to issues that have been plaguing the field is to set up an agreed-upon border at the 100 kilometres vertical height and establish a regime to address the parts of space activities that would fall in the airspace, as well as any of those activities that are deemed suborbital.

Having ascertained that there is no such thing as an established limit or definition of where Air or Outer Space begin, the below consideration will try to provide options on how to address the issue.

Through International Organizations: ICAO or the birth of a new one?

Seeing the success that the International Civil Aviation Organization (ICAO) has had in addressing all manners related to its mandate, it is understandable how establishing a new entity with a similar mandate, but dealing with movements of vehicles that would cross the airspace and go into outer space could seem enticing. An issue could be reaching both an agreement as well as a consensus to achieve such a goal, which many States might not want to consider, due to the possibility of merely modifying the ICAO.

Utilizing the current framework would certainly make the process of addressing such issues much quicker, and the competencies of ICAO might be expanded through the adoption of new Annexes or the amendment of its current one.[18] Alternatively, the ICAO could create new Standards and Recommended Practices (SARPs) this is what might happen concerning the interferences with GNSS to ensure safety in civil aviation, which is its primary goal.

There are a few issues that would have to be dealt with, primarily the fact that the Convention on Civil Aviation commonly referred to as the Chicago Convention of 1944 (CC44) establishes a clear difference between civil and military aircraft, with everything that does not fall in the former category being labelled as a State aircraft. This is a system that clashes with that adopted in Outer Space, in which all vehicles must be registered to a State. Further changes would also be needed concerning the current perception of pilotless aircraft, which is regulated in Article 8 of the CC44,[19] as this is a definition which can apply to most space vehicles.

CONCLUSION

The issue of delimitation and sovereignty in airspace and outer space as complex as it is urgent, given the growing congestion in these regions and the increasing importance of clear legal frameworks to govern activities within them. This is vital as it affects international law, technological advancements, and geopolitical stability. The principle of state sovereignty over airspace has long been established, encapsulated by the maxim “Cujus est solum ejus est usque ad coelum et ad inferos”, and codified in treaties such as CC44. Conversely, outer space is designated as res communis humanitatis, free from state sovereignty, as outlined in the OST. The urgency of establishing a clear boundary between airspace and outer space is evident to maintain order, ensure safety, and uphold the principles of international law. Without such a boundary, legal ambiguities and potential conflicts which already exist may worsen, exacerbated by technological advancements and political tensions.

FOOTNOTES:

[1] Waltz, K. (1979) Theory of International Politics McGraw-Hill

[2] Bodin, J. (1576). Six Books of the Commonwealth Translated by M. J. Tooley (1962) Harvard University Press.

[3] Article 2(1) of the United Nations Charter: Establishes the principle of sovereign equality of all its members. Oppenheim, L. (1992). Oppenheim’s International Law: Volume 1, Peace. Longman

[4] United Nations Office for Outer Space Affairs (UNOOSA) Outer Space Treaty (1967) http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html

[5] NASA (2023) What Is Space? https://www.nasa.gov/what-is-space.

[6]Federal Aviation Administration (FAA)Airspace Classifications https://www.faa.gov/air_traffic/flight_info/aeronav/digital_products/dtpp/media/airspace_classifications.pdf

[7] International Civil Aviation Organization (ICAO) (2021) Annex 11 to the Convention on International Civil Aviation: Air Traffic Services https://www.icao.int/airnavigation/ATS/Pages/Annex-11.aspx

[8] It is postulated that the concept travelled to Oxford thanks to Franciscus, the son of Accursius, who was invited to teach there by Edward I. The rule spread through the precedents-based system, also due to the authority of some of its supporters: namely Edward Coke in Bury v. Pope, Penruddock and Baten, and William Blackstone in 1768. This concept would then travel to American Law. For further comments see: Coke E. (2003) The selected writings and speeches of Sir Edward Coke. Sheppard T. (eds.), Liberty Fund Indianapolis, Indiana, 2, 607 https://oll.libertyfund.org/titles/shepherd-selected-writings-of-sir-edward-coke-vol-ii; Cooper J.C. (1952). Roman law and the maxim ‗cujus est solum ‘In international air law. McGill Law Journal, 1(1) https://canlii.ca/t/7mz3p  ; Donohue L.K. (2021). Who owns the skies? Ad coelum, property rights and state sovereignty. In FEENEY M. (eds.), Eyes to the sky: privacy and commerce in the age of the drone, Cato Institute. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3823362 ; Klein H.D. (1959) Cujus est solum ejus est… quosque tandem. In Journal of Air Law and Commerce, 26(3:2), 237-254. https://scholar/smu.edu/jalc/vol26/iss3/2

[9] Numerous other scholars have written on it, such as Jacques De Cujas, Hugo de Groot and JeanEtienne Danck.

[10] Namely the Code Napoleon, and the German and Swiss Civil Codes. Cheng B. Air law, in Encyclopedia Britannica, 2019. www.britannica.com/topic/air-law

[11] This term also refers to global commons: as per John Vogler, these are social constructs, the definition of which varies depending on the historical moment they are being analysed in. In any case, looking at Roman law, these are domains owned by everyone while being outside of anyone‘s sole jurisdiction and claim. This concept is opposed to that of res nullius, as it refers to something that cannot be occupied, and on which sovereignty cannot be exercised. When referring to space, it is more apt to define it as territorium commune humanitatis. Cheng B. (1980). The legal regime of airspace and outer space: the boundary problem functionalism versus spatialism: the major premises. In Annals of Air and Space Law, 5, 323-362 https://doi.org/10.1093/acprof:oso/9780198257301.003.0014 ; Vogler J.(1995). The global commons: a regime analysis. Chichester, Wiley &Sons https://doi.org/10.2307/2625565  & Wijkman M. (1982). Managing the global commons In International Organization, 36(3), 511-536 https://doi.org/10.1017/S0020818300032628

[12] A coalition of equatorial States attempted to set a new ideology according to which geostationary orbit would be included in a State‘s sovereignty. Despite the interesting, and potentially valid, arguments about how the OST would give a leg up to technologically advanced countries enabling their dominance, this instrument did not enter into force. Gorove S. (1979). The Geostationary Orbit: Issues of Law and Policy. In The American Journal of International Law, 73(3), 444-461 https://doi.org/10.2307/2201144

[13] Notably, however, a state will be held responsible for the activities undertaken in space under its aegis. This can both refer to private entities as well as public ones. For further comments see: Treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies, United Nations, London/Moscow/Washington D.C., 27 January 1967. 

[14] The issue is, as of now, not yet a problem, but it may become so when more States become spacefaring.

[15] The limited number of similar instances is also due to the general practice of launching activities: most space-faring countries have utilized launching bases that were either distant from their borders or not over international waters. This might change in the future and, if that were indeed the case, the States in which airspace the objects would pass may raise complaints.

[16] Vehicles being used in outer space are different than those being used in aviation for example

[17] Dempsey P.S. & Manoli M. (2017). Suborbital flights and the delimitation of air space vis-à-vis outer space: functionalism, spatialism and state sovereignty. In Annals of Air and Space Law, XLII https://ssrn.com/abstract=3241421

[18] Specifically to change what its regulations about aircraft apply to.

[19] Convention on International Civil Aviation, Article 8


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