State jurisdiction over air and space

• Author: John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
• Pages: 461-474

461

CHAPTER 6

STATE JURISDICTION OVER AIR

AND SPACE

We continue this part on the jurisdictional relationship between states and territory with a

brief examination of air and space law. Both airspace and outer space present theoretical

and practical diff‌iculties for international law. Not least, neither is inhabited in any sort

of permanent way. Indeed, until relatively recently, neither was a domain in which human

beings were ac tive. Technological developments in the twentieth century made both air

and space f‌light possible, rapidly making state jurisdiction over the Earth’s atmosphere

and areas beyond an important legal issue.

A. AIRS PACE

Consider this overview of early approaches to air law:

There were a var iety of theories prior to the Fir st World War with regard to the status of

the airspace above states and territorial waters but the outbreak of t hat conf‌lict, with its

recognition of the sec urity implications of use of the a ir, changed this and the approach

that then prevailed, with little dissension, was based upon t he extension of s tate sover-

eignty upwards into airspace. . . . [T]he inter national law rules protect ing sovereignty of

states apply to the airspace as they do to the la nd below.1

The International Court of Justice (ICJ) recognized the concept of state sovereignty

over airspace in the Nicaragua decision.2 There, it concluded that the United States had

conducted numerous unauthorized overf‌lights of Nicaragua. It viewed these transits as

inconsistent with international law, observing that: “The principle of respect for territorial

sovereignty is . . . directly infringed by the unauthorized overf‌light of a state’s territory by

aircraft belonging to or under the control of the government of another state.”3

The critical concept, of course, is “unauthorized.” In a world where international air

navigation is commonplace, an international legal regime has developed to facilitate the

1 Malcolm N Shaw, International Law, 6th ed (Cambridge: Cambridge University Press, 2 008) at 541–42.

See also (Paris) Convention Relating to the Regulat ion of Aerial Navigation (with Additional Protocol),

13 October 1919, 11 LNTS 173, in force 29 March 1922, ratif‌ied by His Majest y on behalf of the British

Empire in 1922 and later denounced by Canada in 1947 when Canada be came a party to the Chicago

Convention: Johannes son v Municipality of West St Paul, [1952] 1 SCR 292 at 307, 310, 316, and 322–23.

2 Military and Paramilitary A ctivities in and against Nicaragua (Nicaragua v United States of America), Mer-

its, [1986] ICJ Rep 14 [Nicaragua].

3 Ibid at para 251.