Air and Space Law

Prof (Dr.) C. J. Rawandale

and Dr. Shashi Bhushan Ojha
 Introduction (Air Law)
O It refers to international law relating to civil
aviation.
O Aviation refers to use of aircraft.
O Definition of aircraft- Annex 7 of the Chicago
Convention 1944.
O Freedom of air
O Aircraft vs Spacecraft (overlapping features)
O Functional Approach vs Spatial Approach
 Introduction
O Int. Air Law includes customary law and treaty
laws both.
O Domestic Aviation vs International Aviation
O Influence of International standards on
Domestic Aviation
O The first legislation on aviation- Paris 1784
related to flying of balloon
O First multilateral Treaty is Hague Declaration I
1899 on use of balloons for military purpose.
O First heavier-than-air aircraft flew in 1903
O 1913 bilateral treaty b/w France and Germany on air service.
O 1919 Paris Convention on the Regulation of Aerial Navigation-
military use. Thereafter 1929 Warsaw Convention for the
Unification of Certain Rules relating to International Carriage by
Air
O The current overall legal framework for international civil aviation
is provided by the 1944 Chicago Convention on International Civil
Aviation
O ICAO, Inmarsat, IATA
 Chicago Convention
O Airspace Sovereignty- Art. 1-every State has
complete and exclusive sovereignty over the
airspace above its territory
O Nationality of the Aircraft- Art. 17-18. Exception
Art. 77 (joint or pooled service.)
O Conditions to be fulfilled wrt aircraft and
navigation- Chapter V and VI and Annex 9
O Pacific Settlement of Dispute (Art. 84-86)
O Right to Fly (Five Freedoms)
 Five Freedoms
O The right of aircraft from State A to overfly State B without landing.
(Frist)
O The right of aircraft from State A to land in State B for technical reasons.
(Second)
O First two are called technical freedom which is part of International Air
Service Transit Agreement.
O The right of aircraft from State A to accept paying traffic from State A
and put it down in State B. (Third)
O The right of aircraft from State A to pick up paying traffic in State B and
put it down in State A. (Fourth)
O The right of aircraft from State A to take paying
traffic from State B to State C. (Fifth)
O These are called commercial freedom which are
part of International Air Transport Agreement
O Flights- i) Scheduled; (ii) Non-scheduled
O Scheduled flights are agreed through bilateral
agreements (Art. 6)
O Cabotage- Illegal unless agreed. (Art. 7)
O Chicago Convention applicable only to Civil
Aircraft and not to state aircraft (Art. 3)
O Limits of airspace (outer limit not specified).
O UNCLOS- No Right to Innocent Passage for
aircraft over TS; Transit Passage in Straits is
recognised.
O Tokyo, Montreal and Hague Convention-
Crimes related to navigation.
O Warsaw and Rome Convention- Liability
O Standardization of the norms of Aviation is done by ICAO.
O Air Transport Agreement- Art. 6 Chicago Convention.
O More than 1700 bilateral air transport agreements have to
date been registered with the ICAO. (Art. 81 and 83).
O Bermuda Agreement 1946 b/w US and UK. It became
model for all subsequent bilateral agreements.
O Major heads include: Exchange of traffic rights;
designation of aircraft; effective control; mutual
recognition of airworthiness certificate; custom and duty
rates; information exchange; dispute resolution etc.
O However, a number of multilateral agreements
relating to other aspects of air transport have
also been concluded like Agreement Relating
to the Procedure for the Establishment of
Tariffs for International Scheduled Air
Services.
 Libality Regime
O The international transportation involves many foreign elements.
Therefore liability arising therefrom can create complex problems-
jurisdictional issue, int. law issue.
O Warsaw Convention1929 and its associated protocols tried to unify
some of the rules.
O Liability implies carrier’s liability; operator’s liability; liability of
traffic controllers and manufacturer; liability to third party;
contributory negligence of the passenger
O Every country has its own law on civil aviation.
O ICAO is responsible for standard setting in the field of aviation.
O Aircraft Accident Investigation- Art. 26, Chicago Convention.
O ICAO adopted Annex 13 to Chicago Convention for Accident
Investigation standard.
O Scope-Art. 1
O Rules of Documentation- Art. 3-16
O Liability is based on fault of the carrier. Burden of proof lies on
the carrier. (Art. 17-21)
O Art. 22- Maximum ceiling of the liability
O Liability is fixed but in case of willful mistake liability is not
fixed (Art. 25)
O Jurisdiction- Art 33
O Combined Carriage- Art. 31
O The Hague Protocol 1955 amended the Warsaw Convention.
O Hague Protocol modified the rules related to documentation, liability
limit, definition of wilful misconduct, liability of servants agents
O Montreal Agreement 1966 between air carriers- limited the liability
of the carriers operating to, from, with agreed stoppage in US. Prior
to that, US withdrew from Warsaw Convention.
O The Guadalajara Convention of 1961, supplemented the Warsaw
Convention- liability of the "actual carrier", regardless of who
entered into the contract with the passenger.
O The Guatemala City Protocol of 1971 and Montreal Protocol further
refined and updated the provisions of Warsaw Convention.
O The Gautemala City Protocol provides for
regime of absolute liability of the air carrier but
with a max. cap. wrt each person; a domestic
system to supplement, subject to specified
conditions, compensation payable to claimants.
O The Rome Convention,1933 (Replaced in
1958)- to protect third parties on the ground.
O Absolute but limited liability of an aircraft
operator wrt to third parties on the ground.
 Security Issues
O Criminal acts endangering the safety of navigation has
increased many fold in past years.
O Criminal acts may include hijacking, terrorist act etc.
O Mostly the efforts are directed toward preventing acts of
unlawful interference against ‘civil aviation’.
O The most important conventions in this regard include:
Tokyo Convention 1963; Hague Convention 1970;
Montreal Convention 1971; Montreal Protocol 1988;
Convention on Plastic Explosives 1991.
 Tokyo Convention
O The state of aircraft registration has the
authority to apply its laws to events occurring
on board its aircraft while in flight.
O The aircraft commander can use reasonable
force to tackle the threat to navigation.
O Duties and responsibilities of the state where
the aircraft lands.
O Hijacking.
O Which offences?- Art. 3
O Offences ‘on board’. Art. 4.
O Powers of the Captain- Art. 5-10
O Hijacking-Art, 11
O Powers and Duties of the State of landing-Art.
12-15
 Hague Convention 1970
O Tokyo Convention was insufficient to deal
with hijacking cases.
O What is unlawful seizure of aircraft?
Explained by Art. 1
O Art. 2 makes hijacking punishable.
O Hijacking only when aircraft is in flight.
O Art 4 directs states to make hijacking
punishable offence via municipal law.
O Art. 6,7,8- Extradition (aut dedere aut judicare)
O Montreal Convention- specified the offences
against navigation
O It also follows principle of extradite or prosecute
as in Hague Convention
O Art. 1- definition of offence
O Art. 2-14 important.
O Protocol to Montreal Convention extended the
jurisdiction to acts of violence at airports.
 Space Law
O International Space Law governs the activities in
outer space.
O Dual use technology
O Definition of outer space- No scientific and
technical criteria could be found which would
permit a precise and lasting definition of outer
space (UNCOPUOS)
O Space Law includes both customary law (especially
jurisdiction, liability) and treaty laws
O The foundation to the treaty law was laid by the UNGA
resolutions on this subject.
O In 1958 an ad hoc committee was established by UNGA
through a Resolution to develop legal provisions with respect
to outer space. (COPUOS). In 1959 it became permanent
body.
O In 1961, UNGA adopted a resolution to declare the
application of int. law and UN Charter to outer space and it
will not be open for appropriation.
O Later on the UNGA Resolutions, space race b/w US and
USSR, cold war scenario etc led to creation of binding treaty
laws.
O These efforts led to formation of Outer Space
Treaty 1967.
O OST is normative in character laying down
broad principles related to outer space.
O Freedom of Exploration and Use- Art. 1
O Above freedom is not absolute- non-
discrimination; equality; common interest;
non-appropriation (Art.2); international law
(Art. 3); nuclear weapon (Art. 4) clauses etc.
O Non-Appropriation- Art. 2
O Applicability of general int. law- Art. 3
O Restriction on Military Activity, peaceful use- Art. 4
O Para 2 of Art. 4 does not contain ‘outer space’.
Therefore some scholars argue that OST calls par
partial demilitarization.
O What is Weapons of Mass Destruction? (debatable).
Atleast it includes NBC Weapons.
O So whatever is not prohibited by OST is permissible?
O Dual use-Peaceful use (is it non-military or
non-aggressive military)
O The common interest of mankind- Province of
Mankind/Common Heritage of Mankind debate
O CHM- a) absence of sovereignty; b)
international management (implying
exploitation is possible); c) sharing of benefits
O Astronauts/Cosmonauts are ‘envoy of
mankind)-Art. 5.
O State Responsibility and Liability-Art. 6 and 7
O Jurisdiction and control-Art. 8
O Cooperation, assistance etc.-Art. 9.
O Information to UN- Art. 11
 Liability
O Responsibility for wrongful act
O Fault based; no-fault based; absolute
O Trail Smelter Case; Corfu Channel case-
general principles of int. law- every state is
responsible for its act (state actor and non-
state actor)
O However it is difficult to pin point the
culpability of non-state actor.
O Principle of liability wrt space activities was first
envisaged in paragraph 5 of the 1963 Declaration
of Legal Principles Governing the Activities of
States in the Exploration and Use of Outer Space.
O It was incorporated in Art. 6 of OST. Same can be
found in Art. 14 of the Moon Treaty.
O Art. 7 of OST identifies four possible states on
whom liability can be imputed.
O Joint and several liability
O Astronauts Agreement- Art 5(4)
O Launching Authority- Art. 6.
O No reference to possible compensation.
O Treaty on this issue- Liability Convention 1972.
O Definition of Damage- Art. 1
O The Convention is not applicable to damage caused to nationals
of the launching State or foreign nationals participating in the
operation of the space object. Art 7.
O Absolute liability (on surface of earth and aircraft)-Art. 2.
Exception Art. 6(1). Elsewhere liability is based on fault (Art. 3)
O Presentation of claim- Art 8 and 9
O Third party settlement of dispute- Art. 10-19.
O How to identify the state to fix liability?-
Convention on Registration of Objects Launched
into Outer Space 1975
O Questions unanswered: a) what about MNC working
in foreign country; what about loss to astronauts or
passengers (tourism case); what about unauthorized
actions of nationals; activities in outer space; IPR
Registration of Space Objects
O The Convention on the Registration of Objects Launched into Outer
Space,1974 establishes a mandatory system of registration of space objects
launched into orbit and beyond
O Registry to be maintained at national level as well as by Sec. Gen of UN- Art.
2.
O It help to ensure effective management of traffic, enforcement of safety
standards, and imputation of liability for damage.
O Open for public review- Art.3
O The contents of each registry and the conditions under which it is maintained
shall be determined by the State of registry concerned- Art. 2(3). States never
reveal the true function.
O ‘As soon as practicable’- Art. 4
 Moon Treaty
O The Agreement Governing the Activities of
States on the Moon and Other Celestial Bodies, 1979 is
the latest space law treaty with very limited members.
O Applies to Moon as well as other celestial bodies other
than Earth and other extraterrestrial objects.- Art. 1
O It broadly reaffirms OST and envisages the permissible
activities
O Moon and its natural resources are CHM- Art.11
O Application of Int. Law- Art. 2; will be used for peaceful
purpose- Art. 3
O Sharing of information related to exploration
and use- Art. 5
O Environment Protection-Art. 7
O Jurisdiction on personnel and space object-
Art. 12.
O States have int. responsibility-Art. 14.
O Pacific settlement of Dispute- Art. 15.
 Rescue of Astronauts
O Envoy of Mankind- Art. 5, OST
O Jurisdiction over astronauts- territorial and nationality
jurisdiction
O While in space, jurisdiction belongs to the state of
registry. Art.8, OST (but what about persons who do not
form part of
the personnel)
O Same Art 12 of Moon Treaty
O Rescue Agreement