State Jurisdiction over Air and Space

AuthorJohn H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld
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.
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 
The contracting States recognize that every State has complete and exclusive sovereignty
over the airspace above its territory.
Article 
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
(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

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