State Jurisdiction over Air and Space

• Author: John H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld
• Pages: 450-466

450

CHAPTER 6

State Jurisdiction over Air and Space

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

an examination of key aspects of air and space law. Both airspace and outer space present

theoretical and practical diculties 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 active. Technological developments in the twentieth century made both

air and space ight possible, and with all-civilian space ight now a reality, state jurisdiction

over the Earth’s atmosphere and areas beyond is an important legal issue.

A. AI RSPACE

Consider this overview of early approaches to air law:

There were a variety of theories prior to the First World War with regard to the status of

the airspace above states and territorial waters but the outbreak of that conict, with its

recognition of the security implications of use of the air, changed this and the approach

that then prevailed, with little dissension, was based upon the extension of state sover-

eignty upwards into airspace. . . . Accordingly, the international law rules protecting

sovereignty of states apply to the airspace as they do to the land below.

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

airspace in the Nicaragua decision. There, it concluded that the United States had conducted

numerous unauthorized overights of Nicaragua. It viewed these transits as inconsistent

with international law, observing that “[t]he principle of respect for territorial sovereignty is

. . . directly infringed by the unauthorized overight of a state’s territory by aircraft belonging

to or under the control of the government of another state.”

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

gation is commonplace, states have developed an international legal regime to facilitate the

movement of civil aircraft through state airspace. Consider the key terms of the near-univer-

sally ratied Chicago Convention on International Civil Aviation.

 Malcolm N Shaw, International Law, th ed (Cambridge: Cambridge University Press, ) at –

[Shaw]. See also (Paris) Convention Relating to the Regulation of Aerial Navigation (with Additional Proto-

col),  October ,  LNTS , in force  March , ratied by His Majesty on behalf of the Brit-

ish Empire in  and later denounced by Canada in  when Canada became a party to the Chicago

Convention: Johannesson v Municipality of West St Paul, []  SCR  at , , , and –.

 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),

Merits, Judgment, [] ICJ Rep  [Nicaragua].

 Ibid at para .

Chapte r : State Jurisdiction o ver Air and Space 451

(Chicago) Convention on International Civil Aviation,  December ,  UNTS , Can TS

 No , in force  April 

Article 

Sovereignty

The contracting States recognize that every State has complete and exclusive sovereignty

over the airspace above its territory.

Article 

Territory

For the purposes of this Convention the territory of a State shall be deemed to be the land

areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection

or mandate of such State.

Article 

Civil and state airc raft

(a) This Convention shall be applicable only to civil aircraft, and shall not be applic-

able to state aircraft.

(b) Aircraft used in military, customs and police services shall be deemed to be state

aircraft.

(c) No state aircraft of a contracting State shall y over the territory of another State

or land thereon without authorization by special agreement or otherwise, and in accord-

ance with the terms thereof.

(d) T he contracting States undertake, when issuing regulations for their state aircraft,

that they will have due regard for the safety of navigation of civil aircraft. . . .

Article bis

(a) The contracting States recognize that every State must refrain from resorting to

the use of weapons against civil aircraft in ight and that, in case of interception, the lives

of persons on board and the safety of aircraft must not be endangered. This provision

shall not be interpreted as modifying in any way the rights and obligations of States set

forth in the Charter of the United Nations.

(b) T he contracting States recognize that every State, in the exercise of its sovereignty,

is entitled to require the landing at some designated airport of a civil aircraft ying above

its territory without authority or if there are reasonable grounds to conclude that it is

being used for any purpose inconsistent with the aims of this Convention; it may also

give such aircraft any other instructions to put an end to such violations. For this purpose,

the contracting States may resort to any appropriate means consistent with relevant rules

of international law, including the relevant provisions of this Convention, specically

paragraph (a) of this Article. Each contracting State agrees to publish its regulations in

force regarding the interception of civil aircraft.

(c) Every civil aircraft shall comply with an order given in conformity with paragraph

(b) of this Article. To this end each contracting State shall establish all necessary provi-

sions in its national laws or regulations to make such compliance mandatory for any civil

aircraft registered in that State or operated by an operator who has his principal place

of business or permanent residence in that State. Each contracting State shall make any

violation of such applicable laws or regulations punishable by severe penalties and shall

submit the case to its competent authorities in accordance with its laws or regulations.

(d) Each contracting State shall take appropriate measures to prohibit the deliberate

use of any civil aircraft registered in that State or operated by an operator who has his