STATE’S SOVEREIGNTY OVER AIR SPACE
–by Anisha Roy
The concept sovereignty is dynamic. It is continuously evolving with the development of the global institutional environment. In aviation, sovereignty refers to the ownership of airspace. In other words, to the exclusive competence of a state to exercise its legislative, administrative and judicial powers within its national airspace. A number of factors determine the extent of application of territorial exclusivity of the state in international law. On one side, technological and economic changes, the constant rise of transnational concerns such as human rights and self-determination impinges upon this exclusivity. On the other side, the growth of international organisations has played an important role in the development of the “common heritage” concept in the context of the law of the sea and air law.
Talking about Air Law, it is a series of rules governing the use of airspace and its benefits for aviation, the general public and the nations of the world. Terms like Aviation Law and, or Navigation Law is outdated, the Air Transportation Law is used occasionally, however, all used to convey a narrow interpretation. As of now, the term ‘Aeronautical Law’ is currently being used especially in Romance languages, while ‘Air Law’ is generally adopted in other areas. The most fundamental principle of air law is that every state has complete and exclusive sovereignty over the air space above its territory. By this principle, no air craft of one state can enter the air space of another state without the permission of that other state sought and obtained.
However, the principles governing Air Law did not find place with ease. At the onset of twentieth century “international flight was practically unregulated.” In1902, Paul Fauchille of France, proposed that States should only have exclusive rights in the airspace immediately over their territory up to an altitude of 1,500 meters (4,920 feet). According to him, “the air is free- states having only rights necessary for their self-preservation, such rights relating to the prevention of spying, to the customs, to the sanitary police, and to the necessities of defense; subject to certain exceptions, air navigation is prohibited in a “security” zone extending 1500 meters up from the surface territory of a State; only public aircraft of a State are permitted to fly freely in the security zone of that State; the subjacent State may also regulate landing and departure through the security zone above its territory. ” This view was opposed in 1906 by Professor John Westlake of the United Kingdom who was in favour of ‘no upward limit of State sovereignty’ concept. It was also put forward by him that in the air the higher one ascends, the more damage the fall of objects will cause on the earth. If there exists a limit as to the sovereignty of the State over the oceanic space, none exists for the sovereignty of the State over the air space. The right of the subjacent State will not change whatever may be the distance.
The first concerted attempt at codification on an international scale took place before 1910. As a result the Paris Conference of 1910 was convened to reach an agreement to resolve the problem since German balloons repeatedly was making flights above French territory. The conference did not adopt the idea of “freedom of the air” but was in favor of the sovereignty of states in the space above their territories. This was also reflected on the draft convention at the plenary session of the conference. Although the conference ended without signing a convention, it had completed most of the clauses of a draft convention.
The 1910 conference envisaged with reference to general international agreement that “usable space above the lands and waters of a State is part of the territory of that State” and that no general right of innocent passage through the usable space above a State existed for aircraft. Although the conference did not set a vertical limit on State sovereignty, many European States asserted absolute vertical sovereignty.
After First World War, the Aeronautical Commission of the Peace Conference in Paris met to examine fundamental principles for air navigation where delegates from many European States as well as Japan, Cuba, Brazil and the U.S. came. This Commission drafted the Convention Relating to the Regulation of Aerial Navigation, known as the Paris Convention. Article 1 of the Convention recognized the exclusive sovereignty of all States over the air space above their territory, including above territorial waters. It was based upon view that a boundary of state represents the line of separation between areas of state sovereignty, not only on the earth’s surface but also in the subsoil and in the superjacent column of air’. The Paris Convention did not define the term “air space.” After the Paris Convention entered into force, an annex was also adopted which defined ‘Aircraft’ as “all machines which can derive support in the atmosphere from reactions of the air.” This, however, did not act as limiting a State’s vertical sovereignty. In this convention, air space was accepted as part of State territory but no international determination was made as to the regions of space above.” The Paris Convention did not provide for a right of innocent passage, but it did encourage States to allow innocent passage, saying “each contracting State undertakes in time of peace to accord freedom of innocent passage above its territory to the aircraft of the other contracting States.”
However, the idea of innocent passage was not looked upon favourably. Article 15 which provided in part that “every aircraft of a contracting State has the right to cross the air space of another State without landing” was amended in 1929 to make this right conditional. The new paragraph 4 of article 15 said, “Every contracting State may make conditional on its prior authorization the establishment of international airways and the creation and operation of regular international air navigation lines, with or without landing on its territory.”
The right of innocent passage given by Article 2 was thus largely limited to civil aircraft used for pleasure or occasional commercial flights. The Paris Convention was ratified by most European States and idea of airspace sovereignty given by it was recognized in international law.
The 1944 Convention on International Civil Aviation also known as the Chicago Convention has also reaffirmed in its Article 1 that all States have complete and exclusive sovereignty over the air space above their territory. A State’s territorial airspace includes the area above its territorial waters, there exists no right of innocent passage and scheduled international air services are only allowed with special permission of the contracting States. Thus, the international law also applies to the airspace as they do to the land below in case of violation of state’s sovereignty. Gradually, this idea also found place in decisions given in International Court of Justice as is seen in the famous Nicaragua case where the court said that “The principle of respect for territorial sovereignty is also directly infringed by the unauthorised overflight of a state’s territory by aircraft belonging to or under the control of the government of another state.”