Introduction Seminar Air Space Law.docx

1

INTRODUCTION

2 DEFINING BORDERS OF AIR AND SPACE LAW This introduction may also serve as a clarification of the question what air and space law comprise. Many people are not so familiar with these branches of law, and may consider them “esoteric”, “extravagant” or “ethereal”. This is also to explain that there are a lot of concrete applications and implementations of these regimes. That is increasingly true for space law and has been especially true for air law since a number of decades.

Air law is connected with a myriad of areas of law, such as civil law and private international air law in the context of the liability of the air carrier for damage sustained in the course of carriage by air; criminal law, which found its way into air law upon the occurrence of hijacking and other criminal acts committed on board aircraft; the law pertaining to the financing of aircraft, and also space craft, and related assets; tax law; competition law in the context of airline alliances; European Community law and environmental law. I will discuss the latter two areas in somewhat greater detail in the course of this article.

Space law is differently organized as compared with air law. It is basically a branch of public international law. It borrows concepts from maritime law. Increasingly so space law also involves other branches of law. For instance, on the International Space Station, the criminal law of the state of the nationality of the offender applies. As regards inventions made on board the International Space Station, an activity occurring on a flight module shall be deemed to have occurred in the territory of the State of registry of the module.

A thread running through this contribution concerns securing the rule of law in a multilevel jurisdiction while crossing borders – not only physical and geographical but also non-physical borders. Multilevel jurisdiction refers to the various levels of jurisdiction to which economic and other activities are subjected. Those levels are especially present in the European Community where national law, European Community law and public and private international law increasingly interact.

To begin with reference is made to similarities and differences between air and space law, a subject which was meticulously analyzed by Professor Direderiks-Verschoor.

3 After that a discussion comprising of various Air Space law violations in India will be done which will be displayed as a Case study to this project.

4

STATEMENT OF OBJECT The fact that Air and Space Law has been established on the international front is commendable and its development has given boost to the most difficult task in the world. Who would have thought that spending mere 300$ as expense will take us from one place to another. Or that army will not walk towards the enemy country but fly. The speed of today’s rocket and tomorrow’s superfast airplanes have defeated time and proved to be a worldly factor. But till now, it has been guided by mere UN conventions and International laws. In India, our Constitution has given Air space law an individual status by mentioning it in the schedules but there is no particular way to regulate violations except mere investigations and suspension. There have been various types and cases of violations that we will discuss in our study. We will start from introduction to Air law and will gradually come to Space law. Also we will highlight several current issues in our study dealing with the negative and positive aspect of Air and Space law.

5

Current Literature Review As a first step in this activity, a literature review was recently conducted into Air and Space laws World front, with an eye toward:  Documenting current theoretical views on the role of Air and Space laws in human development.  How human developed Air and Space laws in the light of United Nation’s Conventions.  Cataloguing and evaluating past research into the various conventions and treaties between other countries and India.  On the basis of the above, to provide a set law principle for capturing violations in the said law and solutions or action taken by the concerned authorities.

6

Issues Involved      

Questions as to development of Air Law Questions as to Space Law Issues regarding the negative and positive aspects of Air and Space Law What type of violations comprise of in matters concerning Air and Space Law What governs Air and Space Law Case study on different genres of Air and Space Violations in India

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OBJECTIVE OF STUDY Objective of this study is to ascertain true developing elements of Air and Space Law and to come to a conclusion as to how much can we rely on international treaties and also looking upon how our government has developed a system to regulate and prevent violations concerning the security of its citizens and the machinery made by humans in its territory. Also we will highlight recent violations under the Air and Space Laws concerning Indian Territory and various conventions that became part of the territory’s support in running the Air and Space objects efficiently. We will also put up various news articles which will highlight the present position of Aviation industry and working of the various authorities concerning Air and Space Law.

8

RESEARCH METHODOLOGY The Methodology used in compiling the assignment on “Air Space Violations in India” is the Doctrinal Methodology as well as empirical method of research. The method of research used by me includes in depth study from books, journals, articles and reports. I have also used reports and articles available on various websites. I have also used newspaper cuttings also.

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PROPOSED CHAPTERIZATION AIR LAW

Page no. 11

THE BEGINNING OF AIR LAW

12

AIR AND LAW BEFORE AVIATION

17

MEANING OF SOVEREIGNTY IN THE AIR

19

SOVEREIGNTY IN AIR SPACE

22

TRESPASSING IN AIR SPACE

23

SPACE LAW AND AIR LAW

26

THEORIES CONCERNING AIR SPACE

30

POSITIVE ASPECT OF THE FREEDOM OF SPACE

34

NEGATIVE ASPECT OF THE FREEDOM OF SPACE

38

SPACE LAW

42

CONCEPT OF SPACE LAW

47

DEFINITION OF SPACE LAW

51

SOURCE OF SPACE LAW

54

INTERNATIONAL LAW AND SPACE LAW

59

PLACE OF SPACE LAW IN THE LEGAL SYSTEM

64

INTERNATIONAL COOPERATIONS WITH INDIA

68

VIOLATIONS OF AIR AND SPACE LAW IN INDIA

75

CONCLUSIONS & SUGGESTIONS

84

BIBLIOGRAPHY

85

10

DEFINITIONS & CONCEPTS

11

AIR LAW

12

THE BEGINNING OF AIR LAW

Its is generally agreed that the first piece of legislation connected with aviation was the regulation made by the Paris police in 1784 prohibiting balloons fights without special permits. Other European cities followed with similar enactments. But the question of an international

air

law

does

not

seem

to

have

become

a

live

one

until

the end of the nineteenth century.

What made it so in the first instance were the military rather than the civil potentialities of aviation. It is already referred to the provisions in the Declaration of Brussels that a person was not to be considered as a spy merely because he passed over the enemy's lines in a balloon. At the first Hague Peace Conference a declaration was signed in which the contracting powers agreed to prohibit for a term of five years the discharge of projectiles and explosives from balloons or by other new methods of a similar nature. It is reasonable to that these other new methods included methods depending upon science of aeronautics, although a power driven aeroplane had not yet flown. However the declaration was only to be binding upon the contracting power in case of war between two or more of them and even than not when one of the belligerents was joined by a noncontracting power. In the declaration, which was ratified by twenty - four states (not including Great Britain) whereas the Brussels Declaration was never ratified - reference was made to the Declaration of St. Petersburg of 1868 in this instrument the contracting parties, after referring to the work of an international military commission which had fixed the technical limits at the necessities of war ought to yield to the requirements of humanities had declared as follows:

1-Considering that the progress of civilization should have the effect of alleviation as much as possible the calamities of war: 2-That the only legitimate object which states should endeavour to accomplish during war is to weaken the military force of the enemy: 3-That for this purpose it IS sufficient to disable the greatest possible number of men: 4-That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disable men or render their death inevitable;

13 The occasion of the St. Petersburg Declaration was that the Russians had developed a bullet to be used for blowing up ammunition weapons. The bullet exploded on contact with even a soft substance. The philosophy underlying the Declaration was that such explosive bullets should be banned their use would cause unnecessary suffering to individual persons whom they might hit. The Declaration however was drafted in such a way that the use of explosive shells, designed to kill large numbers of men remained legal.

Also notwithstanding the humanitarian sentiments expressed in the preamble to the St. Petersburg Declaration it would be erroneous to conclude that the use of any weapon which than or thereafter should offend against those sentiments would be illegal. Declaration could not do more than it purported to do, which was simply to ban the employment of bullets that were both of small weight and explosive or charged with fulminating or inflammable substances so far as new weapons are concerned their use in the absence of treaty provisions is governed by the following two principles of customary international law viz:

1- A weapon is not necessarily illegal just because it is new; 2-The fact that it is not possible to exploit a new weapon (be it a submarine a form of bomb or anything else) to the full without violating an existing rule of law is not a sufficient excuse for violating that rule of law.

The situation created by the second of these two principles however imposes a great stain on the law. It is best resolved by a specific agreement banning the use of the new weapon or if that is not possible by some adjustment in the rules of war rendering legitimate at any rate a restrained use of the new weapon. If agreement along either of these lines is not achieved the tension is likely to be resolved in war by the weapon being used by both sides and if existing riles are violated in the process by such use being justified as a reprisal for alleged breaches of the law by other side.

At the Hague in 1899 it was felt the use of balloons for the purpose of discharging projectiles was attended by too many uncertainties to be permitted. But the prospect that greater accuracy might soon be obtained was also the reason for limiting the Declaration to five years.

14 It would be wrong to imagine that the sole preoccupation of those interested in air law at this stage was with military questions. The fifteen years that elapsed between 1899 and the outbreak of the First World War 1914 were indeed the great creative period of air law, and the

only

real

parallels

we

have

to

it

are

the

enormous

literary

output

that there was in regard to the continental shelf just after the Second World War and that there has been in regard to space law during the last decade. Among the pioneers of air law the name of Paul Fauchille will always be remembered. This great French lawyer as the rapporteur for the institute of international law on the subject entitled regime 'juridique des aerostats submitted to the Brussels meeting of the institute in 1902 a draft code containing thirty two Articles. The first seven Articles were given over to general provisions; article 8 to 20 prescribed for peacetime and the remaining articles concerned the laws of war.

What interest us most today about Fauchilles code is some of the first articles in the draft. Article 1 for instance drew a basic distinction between public and private aircraft the former category being further divided into 'military' and 'civil'. Article 2 required all aircraft to carry the national colours in some convenient form. Article 3 forbade aircraft to wear colours other than those of the nation to which they belonged. So far as private machines were concerned aircraft would belong to a country by virtue of being entered on a register kept by that country and in order to quality for admission to the register the owner commander and three quarters of the crew of the aircraft must be nationals of the country concerned.

Only when he reached Article 7 did Fauchille broach the question of air space. Here he prescribed as follows:

Fauchille justified by somewhat theoretical reasons his doctrine of the freedom of the air. These were firstly that air because of its very nature was not capable of appropriate at all and secondly that since a state could not occupy air, it could not be sovereign over it. Similar theories had for centuries been put forward in support of the doctrine of the freedom of the seas although in fact that doctrine had came to be accepted for the essentially practical reason that it best suited the changing interests of the major maritime powers.

Fauchille was sufficient of a realist to comprehend that the states for whose benefit he was preparing a code would never accept the freedom of the air in the extreme from that his theories pushed to their logical conclusion, might demand. Even the freedom of the seas had

15 become acceptable only by conceding to states wide powers over an area of sea adjacent to their coast. And there were not lacking jurists who pointed out a state would be even more concerned about what might take place in the air above it than in the seas off its coasts. Fauchille proposed to meet this problem by conceding to the subjacent state extensive rights in the air space immediately above it. These rights would not be rights of territorial sovereignty but rights deriving ultimately from the principle of self - preservation.

Thus in article 8 to 11 of his code he would forbid navigation by foreign aircraft at heights of less than 1500 meters above national territory or at distances of less than 1500 meters from the coast. The distance was chosen for the practical reason that it was believed that 1500 meters was the maximum range at which worthwhile photographs of fortifications could be taken. In Article 15 Fauchille suggested that in general crimes committed on board foreign aircraft should be within the jurisdiction of the state of the aircraft but that the subjacent states could punish crimes such as espionage and breaches of its custom and sanitary regulation when committed in the air space above its territory. Such punishment would however be based on the protective rather than the territorial principle of jurisdiction because, according to Fauchille the superjacent air space was free and did not form part of the territory of the state.

This theory of the "free air" died hard. It seems strange to us today it should have been so strongly held. It may help to see things in perspective if we recall that the same view was widely taken in regard to territory waters. We saw earlier that in earlier 1878, the British parliament reversing;

THE QUEEN V. KENY; asserted that British territorial waters were such part of the seas adjacent to the coast... as is deemed by international law to be within the territorial sovereignty of her majesty. Yet as last as 1921 it was held by the German Reichsgericht that German territorial waters were not, strictly speaking part of German territory" and as late as 1939 the civil tribunal of brest took the same view of French territorial waters.

In KENYON V. HART; a case concerning trespass to game Blackburn, j. referring to another case cited by counsel said that case raises the old query of Lord Ellenborough as to a man passing over the land of another in a balloon he doubt whether an action of trespass would lie for it. I understand the good sense of the doubt though not the legal reason of it.

16

In the UNITED STAES V. CAUSBY; the supreme court of the United states held that the Government by low flights of its military aircraft over a chicken farm had taken an easement of flights over the farm for which compensation must be paid. At the same time on the general issue the court was caution. The court proceeded to hold that flights over private land are not a taking unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. 8t if said the court by reason of the frequency and altitude of the flights respondent could not use this land for any

purpose

their

loss

would

be

complete.

It

would

be

as

complete as United States had entered upon the surface of the land and taken exclusive possession of it.

In GRIGGS V. COUNTY OF ALLEGHENY; the supreme of the United States carried this doctrine further holding that the operators of Greater Pittsburgh Airport had taken an air easement over the property of a residence in the neighbourhood.

In SMITH V. NEW ENGLAND AIRCRAFT CO. the supreme judicial court of Massachusetts considered more directly the question whether low flights across an owners land constituted a trespass. It held that a private ownership of airspace extends to all reasonable heights above the underlying land and therefore that after making every possible reasonable legal concession to air navigation very low flights could amount to trespass.

In SWETLAND V. CURTISS AIRPORTS CORPORATION; the United States court of appeals sixth circuit rejected the view that all decisions concerning air space must be decided upon the theory of nuisance rather than that of trespass.

17

AIR AND LAW BEFORE AVIATION

18 Prior to the invention of aviation the interest of jurisprudence in the air had been restricted almost entirely to its aspects under civil law still works on air law and space law are often willing to draw such conclusions from some of the tenets of roman law as are bearing the character of international law.

Whenever the coupus juris cinilis deals with the concept of the air and of the sky it does so in relation to rights in rem affecting the earth the air together with the running. waters equa prfluens and the sea are under natural law the common property of all communia omnium'" whosoever has a building lawfully higher the same h as the right to grant a servitude in infinitely upwards." the tomb not only comprises the place holding the ashes but also everything that lies above it up to the sky adcoelurn'". The sky above the public area shall be free. Coelum quodsupra id solum intercedit liberum esse debet accursius gloss to the latter tenect (Glossa Ordinaria 1228) laid down the thesis which was to become a disputed problem of space law theory also. Cujus est solum ejus debet esse usque ad coelum. It should be obvious in this context that this much quoted maxim _a mediaeval explanation of a classical Roman law rule bears absolutely no relation to international law or even public law i.e. the legal relation of the citizen and the state.

Grotius always speaks of the air as one of the things belonging to mankind in common. "The extent of the ocean is in fact so great that it suffices for any possible use on the part of all peoples for drawing water for fishing for sailing. The same thing would need to be said too about the air if it were capable of any use for which the use of the hand also in not required

as

...

it

is

for

the

catching

of

birds.

Fowling

therefore

and

similar pursuits are subject to the law laid down by him who has control over the land.

According to pufendorf since man has been denied the ability to be in the air to the extent that he rest in it alone and be separated from the earth he has been unable to exercise sovereignty over the air except in so far as man standing upon the earth can reach it.

Although Pufendorf speaks of imperium (in the above sense) yet the problem of airspace remained in the domain of civil law as long as the independent use of airspace precisely defined by Grotius i.e. aviation did not become a reality.

19

MEANING OF SOVEREIGNTY IN THE AIR

20

According to one of the basic tenets of present-day international law on state sovereignty, the state territory with its adjacent airspace is a delimited part of the earth under the exclusive jurisdiction of a state. The domination of a state over its territory-to the exclusion of all other states-is called territorial sovereignty. The UN Charter lists among the fundamental principles of the Organization the duty of its members to respect the territorial integrity of every state (Art. 2, Clause 4).

The recognition of the sovereignty of every state in the airspace is based on a generally accepted rule of international customary law. A historical assessment of this problem has shown that this general international rule can primarily be derived from the national laws of the states. It results from sovereignty in the air that every state is entitled to regulate the order of air-traffic above its territory, Inasmuch as it permits the transit or passage-in single cases or regularly-of foreign aircraft, such an act is also based on international agreements having their origin In national sovereignty. the particular characteristics of air sovereignty is summed up below (the enumeration is based on the Hungarian Air Code of 1964 and the Chicago Convention of 1944; the latter owing to its quasi-universal character- being the most important and constantly quoted written source of present-day international air Law).

(a) Each state may regulate the use of its airspace both in respect of its own aircraft as well as of foreign ones. (b) Each state may restrict, above its territory, the freedom of flight by designating routes, prescribing flight altitudes and fixing prohibited zones, (c) Each state may prohibit the taking of photographs or films; may restrict the use of telecommunication means on board; it may exclude any dangerous cargo (explosives, weapons) from air traffic. (d) Any aircraft penetrating into the airspace or violating the restriction command to land. (e) A previous permit is required also for pilotless (robot) plants. The restrictions listed under (a)-(e) apply to such aircraft as well. (f) Any aircraft performing an international flight shall submit to customs and other inspection at the airport designated thereto. (g) For reasons of security a foreign aircraft possessing the transit permit may be obliged to land and to submit to inspection.

21 (h) A special licence (or agreement) is required for a foreign aircraft to transport passengers or freight between two points of the state territory (cabotage). (i) Finally, it follows from territorial sovereignty that inside the state boundaries all civil aircraft is subjected to the jurisdiction of the state having sovereignty.

Both the air codes and the Chicago Convention relate to civil aviation only. Military flights are subjected to special conditions in state laws and international treaties'". As to a 'state aircraft' i.e. the military customs and police airplanes, a special agreement is required for their flying over the territory of another state also under the Chicago Convention.

22

SOVEREIGNTY IN AIR SPACE In the process of conquering of vertical space, half a century prior to the launching of the first Sputnik, the appearance of the aircraft led to the formation of a new branch of law, the national - and subsequently the international - air law. A short survey of the history of air law theory and legislation shows several striking parallel with the early views on space law. By inference it can be said that there are connection and differences existing between the questions, whether space law can be regards as an extension of air law just as space is the continuation of airspace, the province of aviation.

23

TRESPASSING IN AIR SPACE

24 A problem which has attracted much attention in recent year is that of trespassing in national air space by foreign aircraft. It is not a new problem. In 1904 Russian soldiers shot down a German balloon. The incident gave rise to considerable indignation, the more so as it was alleged that the balloon was not actually over Russia territory at the time. Four years later at least ten German balloons carrying military officers crossed into France, and to desire to avoid such incidents in future seems to have been one of the reasons why the France Government sponsored the conference of 1910.

A number of incidents occurred between the two wars. For instance, in January 1931 two polish military aeroplanes landed in Germany. The leading pilot was sentence for two weeks imprisonment but his companion was acquitted. For month later the German court had to deal with a case in which a polish military pilot after landing in German by mistake and being informed by local inhabitants that he was in Germany endeavoured to fly back to Poland but had to land in German territory again because of lack of petrol. He was sentenced to three days imprisonment for entering Germany illegally and to seven days detention for attempting to resume with out permission of the German authorities. A few cases are also reported in which intruding aircraft were confiscated but on the whole by more standards such aircraft seems to have been leniently treated in the inter- war period. Some incidents that have taken place since 1945 have been more serious .It is only possible to consider a few of them here.

1-

on 19 August 1946 an unarmed American military transport aircraft was shot down

over Yugoslavia. According to the Americans the aircraft had been forced into Yugoslavia unintentionally by bad weather and was shot down without warning. In a note to Yugoslavia the United States government described the shooting down of the aircraft as an outrageous act. A plan violation of the obligations resting upon Yugoslavia under the charter of the United Nations and an offence against the law of nations and the principles of humanity. To this strong language the Yugoslavia Government replied that it accepted no legal liability. It asserted that the aircraft had flown over Yugoslavia illegally and had refused orders to orders to and.

2-

On 13 June 1952 a Swedish military aeroplane was shot down by soviet fighters over

the Baltic. Again the facts were disputed and a further complications concerned the actual

25 extent of the soviet air space as the soviet union's clam to territorial of twelve miles and consequently the air space above those waters is not recognized by Sweden.

3-

On 7 October 1952, a United States B29 aircraft was shot down by soviet fighters

between Yuri Island and Akiyuri Island. This was an area which, in the view of United States, belonged to Japan, although the soviet Government claimed that aircraft had violated soviet air space. Again it is obvious that disputed frontiers are particularly liable to generate aerial incidents. The United States referred the case to the International Court of justice, but the latter, finding that the soviet Government had not accepted the jurisdiction of the court, ordered the case to be removed from the list.

4-

Similar incidents occurred on 4 September 1954 and on 7 November 1954. Again

the United States referred the cases to the International Court of justice, and again the court had to order them to be removed from its list.

5-

The United States also instituted proceedings before the court against both Hungary

and the soviet Union concerning an American c47 military transport aircraft forced down by soviet fighters over Hungary on 19 November 1951.The respondent states declines to accept jurisdiction and again the court had to remove the case from its list.50 The same thing happened when the United States brought suit against Czechoslovakia over an aerial incident which occurred on 10 March 195351

26

SPACE LAW AND AIR LAW

27

The problem of relationship between international law and space law involves the important practical and theoretical question whether the validity of international law means that the treaties and customary rules of air law covering the facts of space exploration, or analogues thereto, also find application in space law. The Chicago Convention - the most important written

source

of

international

air

law

-

could

be,

for example, such a special treaty. Also, there arises the possibility that the effect of regional or bilateral air law agreements and of customary law should include the space-lights as well. Some authors have recommended the complete or partial application of the said legal material, while most of the authors opted for the inapplicability of air law - owing to technical and factual differences. In this respect it is M. Smirnoff's consistent scientific activity which commands attention.

In commenting on the aerodynamic theory of the delimitation of outer space we have pointed out how difficult is to define the concept of airspace in the absence of legal definitions. We have had opportunity to point out the theoretical problems caused by the attempts to differentiate between the latest types of conventional aircraft and the spacecrafts which also use aerodynamical effects at the descending stage of their trajectory. Although the two are often overlapping, nevertheless, the international rules of aviation cannot govern space activities. The main reasons for this are as follows:

(a)

the trend of international air law has on the whole a territorial character, its

construction being based on the territorial (air) sovereignty of the states (Chicago Convention, Art I);

(b)

the Chicago Convention is unequivocally applicable only for such types of civil

aircraft as do not cover the space rockets, satellites and spaceships that are in use at present.

In our view ICAO should not have imposed on itself any restriction. On the contrary, the Convention should have had to be extended as opposed to its original intention - in order to cover the space vehicles. Since the Soviet Union and many other states are not parties to the Convention (neither is Hungary), any modification - even if commonly accepted by all statemembers - would have fallen short of the objective anyhow, and would have failed to extend

28 the validity of air law on space activities in a manner which could aspire to a universal acceptance.

Speaking of the future of the Chicago Convention, J.C. Cooper believes that it would be fateful if its rules were only restricted to civil aircraft moving in the airspace. In his opinion it is obvious that all international flights, regardless of their altitude, should be governed by uniform rules. He plans to implement his thesis through a uniform law which he calls aerospace law. The latter would embrace all types of activity by aircraft and spacecraft deployed in the airspace and above it.

It is certain that the continuity of the vertical space would be capable of creating a close logical unity between air law and space law. In the development of technical civilization the connection between the feats of aviation and the instruments of space exploration is undeniable. The intertwinement of the two legal branches is becoming still stronger with the realization of hypersonic aerospacecrafts and boost- glide vehicles'". Consequently, air law and space law cannot be conceived of as two separate, independent disciplines. Beside subjective reasons (the role of air lawyers in the science of space law) didactic reasons will also warrant a joint treatment of the two subjects. Nevertheless, at the present stage of development, the essential differences mentioned above are still dominant. They divide air activity from space activity, and the corresponding legal matters, respectively. We are bound to agree with A. Meyer, who, on the basis of the present stage of development of space law, states in contrast to J.C. Cooper's aerospace concept that: "Thus in future there will exist on the international level two kinds of rules for the traffic in the airspace, one of aircraft laid down in the Chicago Convention, and one for spacecraft passing through airspace, laid down in a new Convention ... we have a similar situation on the earth where there is not single set of rules valid for all vehicles moving on the earth.

As has been stated above, air law rules are not applicable to activities in space. Another question arises in connection with the former but on a different plane, namely, whether space law contains a customary law rule or a binding principle derived from other space law sources which would entitle the states to use foreign airspace during the passage of their space instrumentalities "at the ascending and descending stages of their trajectories. Although much room has been devoted to it in space law literature, the problem has had no great practical significance so far. In fact, the launching bases of the USSR and the USA are

29 located in such a manner that the space rockets have to pass only through their own airspace, or above the high seas, respectively. No foreign airspace was crossed either by the rockets carrying the French satellites A-1, D-1 A, D-1 C or the Italian San Macro. The problem will begin to have practical significance only when such states will engage in space activities whose geographical and territorial position or technical endowments will not allow of such a location of the launching pads. In the stated case, the interested states will be likely to cope with the questions of passage through foreign airspace by means of international agreements, like the British American Agreement of 1956 regarding the proving ground for guided missiles with trajectories passing above the Bahama Islands.

As regards the position under positive law, we agree with G.P. Zhukov who maintains that it would be premature to suppose the existence of a customary international law rule permitting the passage of foreign spacecraft through the airspace of other states'". Article 8 of the Chicago Convention also affirms that states on the basis of their sovereignty make the passage of pilotless aircraft also dependent on a permit to be obtained in advance. There is no reason to suppose at the present stage of international law that any state would regard the flights of foreign space rockets from a different aspect; in fact, there is no reason to suppose that any state would regard such flights as a right secured by international space law. In our opinion no such rule can be derived either from the customary law rule of the freedom of use of the space, or from the Space Treaty (Articles 1 and 2) confirming this freedom.

It is our belief that the guarantee of freedom to use outer space for peaceful purposes could eliminate the main difficulties of this problem, at least until such a time (not too imminent anyhow) when small states of restricted areas will have entered the ranks of space powers.

30

THEORIES CONCERNING AIR SPACE

31

When faced with the problem of the legal status of airspace at the turn of the century at an age when human activity had become extended vertically in a manner that would have been unimaginable in purendorfs period theories were forced to rely on civil law analogies. Academy member Laszlo Buza {then a lecturer at the sarospatak law school) in his pioneering hungartian work asked the question whether Territorial sovereignty extends to the a airlayer above the territorial areas of the state or else the air is free like the high seas and the Subjacent state rights in respect of the column of air are restricted at most to those rights the maintenance of which is desirable in order to protect the safety of person and property of its citizens.

The answers given by theory to this kind of questions present an obvious model when the science of space law is faced with an identical problem now in respect of the outer space. We are going to analyse these theories from the point of view whether the international practice followed in air law is applicable also in international space law.

1.THE THEORY OF FREE AIR: the international legal literature dealing with the legal status of airspace starts with fauchille work entitled ledomaine aerien et le regime juridique des aerostats.

At the early and primitive stage of aviation fauchille this outstanding French international lawyer declared the priniciple of liberty of the air patterned after Hugo Grotius mare liberum air est libre according to his argument sovereignty means a direct permanent and actual connection between the possessor of sovereignty and the subject matter there of enabling exclusive dominion sovereignty can only be the consequence of a material lawful possession or one legalized subsequently'{.Since these condition cannot be realized in the air there fore the airspace cannot pertain the theory says either to the dominion of states or of the community of states. There is an interesting argumentation here the dominion over the air space could only be realized with the help of a mass of guns placed following a chess board pattern since however sovereignty cannot rely on funs as the differences in the ranges of guns would render the exact definition of the territory dominated by a state impossible this conception does not seem workable'".

32 According to Fauchille there is no rule in international law on which the sovereign rights over the airspace could be based. Every state however is entitled to prevent any action in the air layer above it which would endanger its existence or the personal or material safety of its citizens. With the contemporary position of techniques Fauchille theory found acceptance at least with the non-inter governmental scientific bodies thus e.g. His these were accepted at the 1906 Ghent session of the institud de droit international. At the institute 1911 madrid session the principle of freedom of the air was amended as traffic in the air is free.

It was by no means difficult to line up heavy arguments against the theory of the freedom of the air. For example the theoretical weakness of the analog of the high seas repeatedly recurring was evident if the air were free in case of war military operations could be carried out also a above neutral territory no state could suffer this sovereignty need not everywhere See deserts and high mountains still the decisive doubter arguments were provided by the rapid development of aviation.

2.THE THEORY OF AIR SOVEREIGNTY as early as in 1906 at the Ghent session of the institute de droid international there were those who pleaded for the principle of air sovereignty in contrast with the air libber concept of facile there was Westlake who proposed to recognize the sovereignty of the subjacent state over the airspace.

The authors representing the various shades of the theory of sovereignty zitelmann hazeltine anzilotti meyer fleischmann etc. seemingly reached an identical conclusion as those professing the theory of free air. The latter however started from the point that the titles deriving from the right of self preservation did not create sovereign rights while the former recognized the airspace as being part of the state territory and according to them the rights due to foreign states were no more than the limitation of sovereignty. For example even Westlake would recognize the limitation of state sovereignty covering the whole air column in so far that states had to recognize the right of non-offensive passage droid de passage inoffensive for other states. The Hungarian author baszlo buza also shared this view.

As far as our own topic goes the fact is important that while according to some authors the occupation of the air ensued following the invention of flying air sovereignty is derived by the majority of the theoreticians from the logical and close relation of the earth surface and water spaces with the airspace. However without the sea life an go on while the air is an

33 indispensable condition of man existence the state sovereignty is of necessity three dimensional it must include the vertical space filled with air.

3.THE ZONE THEORY:

The being of an intermediary character and relying of the

analogy of territorial waters and the high seas. Its proponents preferred to divide the airspace into various layer of different status. The sovereignty would extend to a territorial airspace (analog of territorial sea) to be defined by various methods; above this layer the airspace would be free(analogy of the high seas).some of them set the upper limit of the state airspace at the range of a gun (Bluntschli, River) or equaled it with the height of the building (Rolland)'" still other janos csarada. Proposed that the limits should be fixed in an international convention .In the theory of Marqinal (we shall return to this question when dealing with the limits of outer space) the airspace is divided into three zones. The zone national up to an altitude of 200 m is under the exclusive sovereignty of the state and flights in this layer can be prohibited without limitation .The zone international between 200 and 400m, bears an national Character in as much as only the offensive noxious flights can be prevented; the air above this layer is free and is not covered by any state sovereignty.

The zone theory was unable to answer the fundamental questions as it recognized above a certain altitude- the freedom of the air. It inevitably shared the fate of Fauchille's theory.

34

POSITIVE ASPECT OF THE FREEDOM OF SPACE

35 The res communis omnium character involves not only the exclusion of appropriation, but also-in a positive sense - the freedom of use. In the terms of outer space this is identical with free access, free exploration and use. Space age has brought global tasks, global advantages and dangers for all mankind. It is hardly conceivable that a given state of group of states could claim exclusive rights for the exploration and exploitation of cosmic space. The fact that at present there are only a few great powers (mainly the Soviet Union and the United States) which dispose of the material and technical conditions required for space activities does not alter this principle in any way. The circle of the direct participants in space research will be continually widening and the process will be helped by regional agreements. In the meantime, the widest possible circle of states will co-operate in solving the scientific tasks connected with space exploration, and in turning them to practical uses, thanks to the test data provided by space powers.

There can be no doubt that the Space Treaty has elevated the principle of free exploration and free use to the level of positive law. When it is laid down in Article 1 of the Space Treaty that every state shall enjoy freedom of exploration and use on the basis of equality and without discrimination, this wording implies that it is the declaration of a general principle, and not of one recognized only among the States, Parties to the Treaty. The Treaty recognizes the freedom of outer space just as Art. 1 of the 1919 Paris Convention (of similar importance in the history of air law) had declared the complete and exclusive sovereignty of every state over the airspace above its territory. That the freedom of outer space had been recognized by states even prior to the Space Treaty, is proved by the General Assembly resolutions quotes in connection with the exclusion of appropriation, i.e. by No. 1721/XVI, Para A/1/b, any by Para 2 of the declaration embodied in GA Res. No. 1962/XVIII. The former unanimously gives commands to states for their guidance to follow the principle of free exploration and use of outer space open to every state, while the latter solemnly declares that states should be guided by this principle in their space activities. This crescendo of wording culminating in the said article of this Space Treaty undoubtedly corresponded to the progress of ten years' international practice of space exploration which has pointed ever more decidedly towards the recognition of freedom of space. The uniform stand taken by the science of space law and private proposals were also reflecting the recognition of the freedom of use and exploration.

36 Freedom of use and exploration of outer space is vested in states. The Space Treaty leaves no doubt that only states can be the subjects of this freedom - as a right from international law. Neither the Treaty nor the customary-law rules confirmed by it can directly empower individuals or private organizations. In one of the states carrying on space activities - in the Soviet Union - the social- economic system itself excludes the possibility of private organizations participating in space ventures. Not so is the case of other space powers. For example, in the United States, in accordance with the economic system prevailing there, private companies play an ever increasing role. Thus, for instance, the Telstar communications satellite launched July 10th 1963, was the joint venture of NASA and ATT (American Telephone and Telegraph Co.).

At present not even the nationals of those space powers where non socialist system prevails are in the position to launch satellites without using the facilities, carrier rockets or guiding centres owned by the armed forces, or simply without the co-operation of the military bodies. It can, however, be imagined that in the future private organizations, too, will be capable of and entitled to launch rockets. If so, opportunity will be provided for abuses both in outer space and in airspace. The community of nations, or the launching state itself, cannot remain unaffected by this possibility. In fact, the global risks and dangers which might be caused by such private ventures without proper guarantees and control must be taken into account.

In the discussions on the legal principles governing space exploration, the question of how to deal with private activities was a source of serious controversies. The Draft-declaration of the USSR wished to lay down that carry out activities destined for the exploration and use of outer space (Para 7). At the same time, according to the British Draft, all states and their citizens were meant to have equal rights to explore and utilize outer space (Para 4).

The discussions were resolved by a suitable compromise guaranteeing this aim, i.e. by incorporating Para 5 in the Declaration embodied in GA Res. No. 1962/XVIII, where the responsibility of states for every kind of space activity is pronounced. The sample principle is expressed in Art. 6 of the Space Treaty. In the context of the Treaty, the free use and exploration of space can be realized in the following manners:

(a)

through national activities carried on by governmental agencies;

37 (b)

through national activities carried on by non-governmental entities;

(c)

through activities carried on by international organizations.

As in connection with the res communis omnium character of space, also in the theoretical construction of the freedom of space we think it permissible to disregard the existence of intelligent beings inhabiting alien celestial bodies. Although man may be not the only intelligent being in the infiniteness of the cosmos, still when laying down the foundations of space law, our cosmic partners may be left out of consideration. For many generations to come the freedom of space will be practiced by astronautical exploits remaining within the solar system; such exploits will not put the future astronauts in contact with man-like or superior creature

38

NEGATIVE ASPECT OF THE FREEDOM OF SPACE

39 The right of free exploration and utilization of space also implies the obligation of states to avail themselves of this right without prejudice to other states and to the interests of mankind. Article 9 of the Space Treaty pronounces that in the exploration and use of outer space States, Parties to the Treaty, shall be guided by the principle of co- operation and mutual assistance, with due regard to the corresponding interests of all other States, Parties to the Treaty.

Although the latter provision concerns the relation among States, Parties to the Treaty, yet this obligation is the logical outcome of the customary-law rule recognizing the freedom of space. The negative aspect of the freedom of space requires the states to refrain from certain activities.

At the current technical level of space exploration some existing circumstances potentially or effectively hampering the free exploration and use of outer space already provided facts which require to be regulated de lege ferenda and other circumstances are to be consideredas forbidden acts or conduct under the existing positive space law.

1-

Space instruments out of action. Various 'hardware' can be found in space besides

the identifiable 'live and dead' space instrumentalities. As early as by the end of 1963, beside the 94 satellites then in orbit, there were 49 burnt-out carrier rockets and 268 fragments, altogether 411 objects registered as orbiting round the earth. They included satellites with an estimated life of thousands of years. Thus, e.g. Midas (launched 12th July, 1961) will remain in orbit during 10,000 years, a US military space object launched on July 19th, 1963, during an estimated 100,000 years, Unless space technology will take care of the disposal of the space objects, they will be likely to provide jobs for many future generations of space lawyers. Sooner or later the mass launchings of satellites will constitute an impediment to the freedom of exploration and use. In consequence, technological progress must be accompanied by legal regulation relating to the removal of dead objects from space.

2-

Activities hindering space exploration.

Over and beyond the legal and practical

effects of the situations listed above, various experiments capable of excluding or limiting in certain zones the space activities of other states will infringe the right of free use and exploration of outer space. The West Ford Project carried out by the United States was, e.g. such a venture. Within the framework of the latter project the USAF dispersed 350 million

40 thin needles of a total weight of 33 kg in outer dispersed 350 million thin needles of a total weight of 33 kg in outer space, with the help of the Midas-4 satellite, on October 21, 1961.

The first experiment failed because the metal needles did not form a contiguous belt but collected in seven big groups instead. According to the comments in the periodical of the British Interplanetary Society, the failure has brought a general relief in scientific circles.

3-

Upsetting the balance of nature. In addition to activities narrowing the freedom of

outer space, there are others which are capable of upsetting the balance of nature. By this we mean such human activities as may result in permanent physical or biological alterations in space or on the celestial bodies, further, which may blur their natural state and thus interfere with subsequent scientific research or free use, finally, activities capable of producing incalculable risks. Such experiments include nuclear blasts in the outer space and the contamination of space by micro-organisms.

4-

Legal limits of harmful space tests. The situations and actions dealt with in the

forgoing paragraphs are an important field in space law regulation. As regards the subjects under (b) and (c) some positive law rules limiting the freedom of space exploration in the general interest are already discernible, though for the time being they amount to no more than the declaration of programme like fundamental principles. A detailed regulation will be the outcome of a treaty-making period, and it will have to take the latest results of the physical sciences and the possibilities of space techniques into consideration.

The limitations of the freedom of outer space further follow from the universal human interests - also recognized both by UN General Assembly Resolutions and the Space Treaty - as the fundamental principle of all space law regulation.

When introducing the negative features of the freedom of space exploration we have already had occasion to quote the first thesis of Art. 9 of the Space Treaty, which makes it the duty of all State Parties to have due regard to the interests of all other States, Parties to the Treaty .Since the free exploration and use of outer space is the right (based on international customary law) of all states (Art. 1, Para 2), therefore, the prohibition of harmful tests is an international duty obliging the space powers erga omnes .Thus, the following provision of

41 Art. 9 of the Space Treaty, corresponding to Clause 6 of GA Res. No. 1962/XVIII, is merely the recognition of the said basic principle: "States, Parties to the Treaty, shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the earth resulting from the introduction of extraterrestrial matter, and, where necessary, shall adopt appropriate measures for this purpose."

Therefore, the interpretation of the quoted article allows of the following conclusions only; (i)

space activity harmfully affecting the freedom of space shall be prohibited;

(ii)

any test potentially involving such effects presupposes a preliminaryinternational consultation;

(iii)

the duty of consultation does not involve the veto of other states against any test;

(iv)

Any harmful test executed by omitting the consultation, or despite the frustration of an international consultation (protest by other states), results in an increased responsibility of the state executing or authorizing it.

The Space Treaty has done no more than laid down the fundamental principles, the interpretation of which will no doubt lead to many a sharp discussion both in theory and in practice. However, by declaring the prohibition of harmful tests, the Treaty has created the first positive law basis for a progressive development of space law.

42

43

SPACE LAW

44

HISTORY OF SPACE LAW Some of the current problems of space law had found their way even into early works on air law. The first reference to a coming cosmic law can be found in E.Laude, a Belgian lawyer. The extent of the airspace gave food for thought also to early soviet authors on the law of the air. Thus for instance, V.A. Zarzar's work on international air law dealt with the question of the upper limit of sovereignty

-

a

fundamental

problem

in

space

law.

Subsequently,

E.A.KOROVIN, later the doyen of the science of space law in the soviet union, expounded legal questions relating to the conquest of the stratosphere. The first conscious elaboration of space law as a new branch of science dates back to a time when space research itself way yet at the stage of planning. A study by Vladimir mandl, a barrister of Plzen, deserves a special place in the history of the science of space law. The arguments of the first independent work on space law are based on the conviction that laying the foundations of cosmonautics means more than a mere preparatory work:

"thinking something over means, to certain extant, to carry it out ; both are ways of ruling over nature and the difference between the two is merely a quantitative one. If we think something over thoroughly, we have taken more than the first step towards execution. When so many excellent minds devote themselves to the problem of astronautics, and when countless studies demonstrate its possibility, giving exact calculations, then the question is as much as solved, vanquished; man will indeed conquer space."

An early death prevented this courageous pioneer of space law from living to see his prophecies come true. His work was received with complete in - difference by his contemporaries.

In the pre - sputnik age it was the rocket test and the soviet and American plans to launch the first artificial satellites that direct the attentions of jurisprudence towards the legal questions concomitant with space research. In the early fifties

45 pioneer work was done mainly by authors on air law. Particular credit is due to the very effective activities of J.C.Cooper and A. Meyer, further to the contributions by J.Kroell, A.A.Cocca, A. Ambrosini to the early literature on space law.

At this heroic age of space law among the non - air - lawyer authors special mention is due to A.G.Haley who besides a wide literary activity, distinguished himself with his significant scientific organisatory activities. Important papers were contributed to the early space law literature by E.Danier, welf Heinrich, Prince of Hanover, M.Aaronson.

The launching of the first satellites in the framework of the IGY (International Geophysical Year) and the successes of the soviet sputnik and American Explorer series resulted in an enhancement of the interest in the law of space. An almost unfathomable wealth of publications dealing with space law flooded the legal periodicals, brimming over even to the columns of the daily press after an initial mistrust and lack of understanding, space law became a fashion to which an ever increasing number of international lawyers hastened to pay homage. Already at the varna colloquium (1962)H. Caplan said that the literature of this question was too voluminous for any single person to survey and analyze, unless he would devote his whole life to this task? The bibliography by K.A.Finch on the selected literature of space law contains 1,169 entries while a similar work by H.P.Kehrberger (1965) lists 30 comprehensive works and no less than 3,170 studies. In the extremely rich literature containing recent data, the availability of information is helped by several excellent bibliographies. The United States senate rendered good services to space law by publishing the two volumes of symposium, which summarize almost every important publication and other documents of the early literature on space law, thus making them available. Among the various assessments of the space law literature is the manual by W.Jenks which contains the most comprehensive and impartial analysis.

At the initial stage of development in the science of space law, various scientific

46 institute and social organization played an important role. In the first category three institutes should be named in particular: the instate for Air law and Space law

of

the

University

of

Cologne

(institutfiir

Luftrecht

und

weltraumrechtsfragen) led by professor A.Meyer.The periodical by this institute has borne since 1960 the title university of Luftrech und Weltraumrechtsfragen indicating its new scope of activity: the second institute founded in 1951 at the MC GILL university of montreal (under the leadership of the late professor J.C.Cooper the veteran of international air law) and sponsored by the ICAO which today bears the name institute of Air and space law _ made important contributions to the science of space law also organizing research work; the third the Davies Davies Memorial institute of international studies in the united kingdom excelled principally with its two, extensively quoted projects.

In many countries, scientific organizations specially devoted to research into space law have been founded. Such is the Istituto Italianio di dritto spanziale which has staged several space law seminars since 1962. certain organizations have made important contributions by putting the study of legal questions of space research on their agenda at an early date. Let us stress the role of the American society of International Law whose annual meetings held since 1956 have led to ample discussion on this topic!". Let us bring into prominence the activities of the American Bar Association which founded a committee on law of outer space in 1957. lts publications are widely quoted. The same goes to the all - embracing 1960 Report of the American Bar Foundation 11.

Socialist jurisprudence (after isolated beginnings already referred to) was becoming involved with the problems of space law from the second half of the fifties. The first impetus has been provided by the discussions following the high - altitude balloon action of the United States (operation Moby-Dick): The balloon operation and the subsequent launching of sputnik - 1 directed the writers attention to the upper limits of sovereignty.

47 In the jurisprudence of the socialist states - besides the soviet legal science mainly the space law literature of Czechoslovakia, Poland, Yugoslavia and Hungary can boast of considerable importance. In these countries many leading scientific bodies such as the institute for Legal and Administrative Sciences of the Hungarian Academy of sciences, the similar institutes in Czechoslovakia and Poland, and the department of Air Law at the institute for International Lawof the Warsaw university are engaged in studies relating to space law and the law new discipline has also found in universities education. After the first summarizing publications (v. Cebis, .LMachowskl) mostly of popular scientific character time has matured larger scientific syntheses as well as (J. Sztuckil; G.P.zhukov)

48

CONCEPT OF SPACE LAW

49 The term space law indicates that the legal material covered by it relates to space, to such activities as relate to space. The term space in natural science generally denotes 'the entire universe beyond the atmospheric envelope of the earth; the near-vacuum in which the solar system, stars, nebulae, galaxies exist. This concept includes all the space which are usually demarcated by the function of their relation to the earth or to other celestial bodies and thus called circumterrestrial ,cislunar, translunar, interplanetary, interstellar and intergalactic space, respectively.

The English speaking literature employs the synonymic terms of cosmic space or - more frequently - outer space, but in compounds (like spacecraft, space exploration, etc.) it is usually present without an adjective. In the soviet scientific terminology - probably under the influence of Tsiolkovsky's Raketa I kosmicheskoye prostranstvo (1942) - the term kosmicheskoye prostranstvo (cosmic space) is dominant, but sometimes one meet the expression mezhplanetnoye prostranstvo (interplanetary space). In the French literature, besides the simple termespace corresponding to space we find the following ters: espace exterieur (outer space), espace cosmique (cosmic space), espace interplanetaire (interplanetary space), but the term space extra - atmospherique (space outside the atmosphere) is also frequently encountered; so much so that this was chosen as the official name of the UN Space Committee (Comite special de 1 'utilisation pacifique de 1 'espace extra-atmosphere). The German literature almost exclusively uses the term Weltraum. The Hungarian authors have adopted the expression vilagur which, if literally translated, would mean 'the world-void'. Both etymologically and from the aspect of the exact science this term seems incorrect because it refers to the emptiness of the more correct vilagter (weltraum) but these have found no echo. Sometimes we encounter the expression kozmikus terseg (cosmic space) (used synonymously with vilagur) in Hungarian writings. E. korovin would discard as "sterile scholasticism ..... semantic debate reflected in particular in the discussions of The Hague space law colloquium"!". Indeed, the task of language reform is not incumbent on lawyers. The space lawyer will freely choose among the terms borrowed from natural science, his choice depending on the particular domain of this new legal branch he wishes to emphasize. As regards now the denomination of the legal

50 material dealing with questions of space exploration, the writings present a similar variety as is the case with the natural science terminology of space. The denominations found in the scientific and the official language can be classified into the following basic types: (a)

cosmic law,

(b)

interplanetary law,

(c)

law of astronautics,

(d)

space law.

(A)

The term cosmic law is dominant in the Soviet literature (kosmicheskoye pravo and generally accepted in the Slavonic languages (pravo kosmicke, prawo kosmiczne, etc.). The French droit cosmique 9used by Danier), the Italian diritto cosmico (used by Quadri) are also widespread, and so is the Spanish version derecho cosmico (used by Seara vaquez). In the English publications only few authors have chosen it (Grove).

(B)

The term interplanetary law is mostly used by South- American authors to designate the relevant legal material: derecho interplanetario 9cocca), direito

interplanetrio

(valladao).

The

French

version,

i.e.

droit

interplanetaire (Jacob), and the German one, i.e. interplanetares Recht (bueckling), are also encountered. The corresponding expression mezhplanetnoe pravo emerged also in early Soviet writings, as e.g. in Osnitskaya (Galina), but failed to find followers.

(C)

Less widespread is the expression astronautical law. Sometimes we find it in the English literature (MenterO, and further we meet it in the French droit astronautique (Oanier), the Spanish derecho astronautico( BauzaAraujo), and in its Slavonic versios i.e. prawo astronauticzne ; astronauticko pravo, etc.

(D)

The most broadly used term is the version space law, the law of outer space. Its use is overwhelming not only in the English, but also in the

51 German, French, Italian and Spanish languages: Weltraumrecht,droit deI'espace, droit spatial, dritto spaziale, derecho especial. The Hungariaan vilagurjog also belongs to this category.

Every new branch of science sooner or later faces the problem of creating its correct terminology and not everyone of them is able to do it. There are sciences boasting of noble traditions and flourishing without having solved this problem and without having created a uniform terminology. Take the science of international law which has survived the fact that its name differs from its subject inasmuch as it ought to be called inter- state law.

When it early age of the Hungarian space law science some of us opted for the space law (weltraumrecht) version, we were prompted more by linguistic analogies then by epistemological considerations (space-space explorationspace science-space law). We might offer as a belated explanation that we feel the expressions astronautical law and interplanetary law would put the emphasis on that field of this branch of legal science which deals with interplanetary traffic, and cosmic law has a tinge as if it did not represent a terrestrial law dealing with space, space activity, but rather a set of norms standing above that - a cosmic one (metalaw). In our view, therefore, space law corresponds best not only to linguistic considerations, but also to the taxonomic category of the legal subject embraced by it.

52

DEFINITION OF SPACE LAW

53 Osnitskaya (Galina) wrote in 1960 that "although it (space law) does not in fact yet exist, attempts have already been made to define it. As opposed to this, we think it surprising that in space law literature, where detailed analyses of Utopian hypotheses are so often met, for a long time so few of the authors have attempted to define the term space law. Though we regard part of this branch of law as noch zu schaffendes Recht, this does not absolve us from the task of clarifying its basic concepts .Particularly today, when the 1967 Space Treaty has laid down the foundations of its development into positive law.

According to a practical and elastic version of definition, space law is the body of the norms governing the legal relations arising in connection with space exploration (S.Gorove, V. cebis, Fasan, Zhukov).

The closer definitions mostly reflect the views of their authors concerning the delimitation of outer space (kroell, Munch); or, they consider space law the law of astronautics, according to the element regarded as most important by them (Homburg). Similar principles have given rise to definition distinguishing between space law and interplanetary law (Cocca).

In our opinion, at the present stage of progress only a frame -like definitions has any purpose, a definition which will not lose its meaning in the course of technical progress in space exploration. Moreover such definition should preferably abstain from referring to such factors as the -still unresolved problem of demarcation between airspace and outer space. Thus, in our view, space law is the body of legal norms governing national and international law relations arising from the exploration and use of outer space and of the celestial bodies, the motion of such objects and instrumentalities along such orbits or their return there from. The permanent frame of these definitions allows of the following conclusions.

54 Space law in a wider sense covers also all the national (constitutional law, state administrative law, civil, criminal and private international law) rules which relate to space activity of its effects. These rules have still a very important role in the legal assessment of nay set of facts connected with space activity. Space law in a narrower sense regulates the international relations connected with space exploration, and the use of outer space (meteorology and telecommunications, etc,)As expressed by the Space Treaty- the most important legal source in this field-space activity is carried out under the international responsibility for national activities of states and its rules shall apply to the activities of states, The legal material which might be called international space law as opposed to space law in the wider sense, forms part of international public law. The conclusion of international agreements governing space activity, and the evolution of customary- law rules will increase the scope of international space law as against the internal, national laws.

It follows from the former definition that-insofar as its part of international law is concerned - the subjects of space law can be only states and international organizations, while inasmuch as its parts of national law is concerned its subjects can also be citizens(natural or juridical entities ). International space law will never directly confer rights or obligations on citizens, while space law rules in the wider sense may do that. A given set of facts, e.g. damages, may contain such elements under space law, as results in becoming subjects at law of both the states and the natural or juridical entities-the latter through national law.

The subject-matter of this volume is space law in the narrower sense, i.e. international space law. The internal, national legal effects of some of the problems will be dealt with only inasmuch as required by their complexity.

55

SOURCE OF SPACE LAW

56 From the fact of that law ( in its narrower sense) will be regarded as part of international law, it follows that its sources - like those of other parts of international law - can be: (a)

international treaties,

(b)

customary law

(c)

general principals of law.

Space law in its wider sense, regards as part of the national laws has the same sources as the law of the respective state.

(A) International treats: today the most important source of space law is the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer space, including the Moon and Other Celestial Bodies, accepted by UN GA Res No. 2222/XXI, December 19th 1996.

Maritime Law- as M. Cohen writes - may have afforded itself the luxury to let its main principles slowly evolve during many centuries". Not so space law. In contrast with the former (but also with air law whose initial steps were made within the limits of national law) the global character of space activity required an early international regulation by treaty. This had been recognized as a primary, de lege frenda task right from the outset. It was further generally recognized both in science and in practice that the preliminaries of a detailed codifications were lacking as yet, thus the treaty to be concluded would have to be restricted to the main principles. The space Treaty elevated the principles accepted in various General Assembly resolutions to the rank of Treaty law.

Particular

provisions

affecting

space

activity

are

contained

in

furtherinternational agreements. Such a source is, for example, the Nuclear Test

57 Ban Treaty of Moscow (August 5th, 1963f2, and the ITU Radio Regulations (completed in 1963). Similar source of space law can be found in forms of international co-operation in the field of space exploration .At the present stage of development other, non- intergovernmental, agreements may also play a role, such as the bilateral agreement between the USSR Academy of Sciences and NASA (June 8th 1962). These, however, regarding their form, are not sources of law. Nevertheless, there are agreements of analogous contents and concluded on an inter- governmental level, such as e.g. the French -Soviet ten year cooperation agreement signed on June 30th 1966.

(B)

International customary law- Opinions differ whether space law has

already evolved its customary law rules to be regarded as lex specialis the question has arisen in particular in connection with the passage of satellites in his comments on F .B. schick' paper E.A. Korovin pointed out two difficulties. In order that we may speak of valid international customary law two conditions must be fulfilled: long-lasting practice and general application. In case of a new emerging legal a field these conditions cannot be satisfied, particularly if we consider that for the time being, we can speak of the practice of only two states though Korovin's skepticism can be shared, still, we do not admit that these rules can only come about through the mutual practice of the two space powers (and those associating later). The states which are not active participants by launching spaceships are more than just onlookers or, possibly, victims of space activity- as Chaumont would have us believe. The latter states too are participants in international practice by their conduct in given cases, by protesting or to protest.

As in other fields of international law so also in space law we have to examine under various aspects whether, in the absence of treaty regulations, the development of a customary law can be confirmed. In determining this, however, only the conduct of states and not that of private organizations or individual persons, and the opinio iuris expressed there in can be taken into consideration. The 'teachings of the most highly qualified publicists' on space law

58 (Statute of the International Court, Art. 38d) can be at most subsidiary means for the determination of rules of law.

The arguments expounded above merely relate to the evolution of the suigeneris customary law rules of space law the general priniciples of international customary law rules regulating relationships among states such as the prohibition of aggression the respect for sovereignty the state liability rules etc. will of course remain binding upson the states also in the field of space activity.

(C) General principles of law the general priniciples of law which may be derived from valid international treaties or customary law rules are also sources of the international space law such experts as G. Tunkin and M. Lachs called in the course of the discussions of the UN s pace Law committee the tenet on the applicability of international law in space a legal priniciple they affirmed that this was the first general principle of international space law a direct consequence of the priniciple pacta sunt servanda. It cannot be disputed that the legal principles valid in international law being quasi logical premises of the latter must be applicable also for such inter state relations as govern space activities the position is however different as regards UN resolutions declaring certain fundamental principles of space activity. They provide the most controversial problem in the discipline of the legal sources of space law.

The sources of space law in its wider sense include the domestic internal rules of law which contain special provisions in connection with space activity or are applicable to the latter under certain aspects (e.g the 1958 US National aeronautics and space act) here too evolution will lead to the development of iura specialia within the state administrative civil and criminal law the same as was the case with air law. G.P Zhukov who otherwise excludes the internal law rules from the scope of space law rightly points out that space law through its being part and parcel of international law is in close contact with the domestic legal systems of the states particularly with the legal institutions that deal with

59 the protection of sovereignty as well as national legislation dealing with space flights space ship and their crew international space law and internal space law regulations are interdependent the state authorization of space flights the state authority over space instruments provide a link between the two.

60

INTERNATIONAL LAW AND SPACE LAW

61 The literature of space law offers various solutions to the. The practical successes of space exploration have produced situation which affect therelations of states and the provisions of international law governing them. Thus, in addition to the legal regime of outer space, another aspect, the applicability of international law in space has become one of the fundamental questions of space law theory.

Problem whether space activity is so to speak legibus soluta or whether there are norms which accompany artificial satellites and celestial bodies on their cosmic way. According to one opinion, a legal vacuum reigns in outer space until special norms regulating the space activities shall be created. Among the Soviet authors this view has been endorsed by F.N. Kovalev and I.I. Cheprov. They maintain that the states, when elaborating the rules of international law, only had in mind a given type of human activity - one that had been possible at certain stages of development the orbit of the first Sputniks passed across a legal vacuum, beyond the zone of any legal regulation, therefore the question whether their launching had required the consent of other states was meaningless. During the 1958 discussions of the First (political) Committee of the UN General Assembly several delegates also pointed out the want of valid legal rules. However, as whilst years were passing by and science and techniques were leaving behind important milestones in the conquest of space without any sui gereris regulation being reached by agreement, it became obvious that the legal vacuum supposed by the advocates of this theory had to be filled with precepts derived from the valid rules of international law. Horror vacui is characteristic not only of nature. Lawyers are driven by the desire to fill in legal lacunae. The seemed particularly important in the case .Of space law, because (as admitted by most authors) the lack of norms was threatening the peace and security of all mankind. The rule of law in outer space could not depend on a detailed codification. This conviction led to the early recognition that international law, or at least its fundamental principles, were governing also the international relations relating to space activities, although there were some authors who only conceded the validity of certain moral norms until such time as the jus speciale of space would be enacted.

62 Finally, Art. 3 of the Space Treaty using essentially the same wording made it the duty of the States, Parties to the Treaty, to carry on their activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with this the validity of international law in outer space has been confirmed by an- up to this day- most important written source of space law. Still, the binding force of international law in outer space does not derive from this Treaty alone, and even the states which do not adhere to it are also bound to observe their international legal commitments in the course of their space activities.

Both the UN GA resolutions cited above and the Space Treaty have a mere declarative character in this respect. The emergence of a new area of human activity does not absolve the states from their duties arising under international law. It would be an absurd idea to conclude that the state of weightlessness will amount to shaking off not only the terrestrial gravitation but also the legal rules of enter- state relations. The precept of pacta sunt servanda and the theses of modern international law fixed in the UN Charter and aiming at the protection of peaceful co-existence are binding upon the state carrying on space activitieseven without special contractual agreement. Such main precepts are;

(a)

The principle of the sovereign equality of states, also applying to the international relations of space activity. States directly or indirectly partaking in such activities are not allowed to carry out ventures, which would be contrary to the principle of sovereign equality;

(b)

States shall abstain from the threat of forces, or effective use of force, against each other's territorial integrity. or political independence (Art. 2, Para 4)

63 (c)

Against a state violating this duty and using its space activity for aggression, every state is entitled to the rith of individual or collective self-defence (Art. 51);

(d)

Also in the domain of space activities states are not allowed to interfere in affairs belonging to the internal jurisdiction of another state (Art. 2, Para)

(e)

States shall comply with their duties deriving from the Space Treaty and other source of space law in good faith (Art.2 Para 2);

(f)

Finally they are required to arrange their disputes arising from space activities by peaceful means and in a manner not endangering international peace and security (Art. 2 Para 3).

The above principles are not only obligations deranging from the Charter but are also part of general international law. The Brussels resolution of September 11th, 1963, of the Institute of International Law is therefore right in declaring that States- in their activities - "are bound by general international law, including the principles of the Charter of the United Nations". (Art. 14.3°)

The application of the said fundamental principles on space activities can be construed without any theoretical difficulty. Yet one would be faced with difficulties if one wanted to extend the validity of international as a whole to outer space. The literature finds the following major controversies: (i) space law regards outer space and the celestial bodies as a zone outside sovereignty, whereas international law is built up on the principle of sovereignty; (ii) the rules relating to armed conflicts form part of international law, whereas space law postulates the peaceful use and exploration of outer space and the celestial

64 bodies; (iii) an anthropocentric international law cannot be extended to the extraterrestrial spaces of an infinite universe.

These contradictions, however, are only apparent ones. As seen previously, the rules of international space law are necessarily functional. Although state sovereignty does not extend to outer space and to celestial bodies, yet space activity is realized under the control of states. As state carrying out or authorizing such ventures can and must see, following from its very sovereignty, whether the said activity affects its obligations under international law.

The rules of international maritime law do exist although states do not possess jurisdiction over the high seas, but only over their 'floating state territories' - i.e. ships. It is rightly pointed out by D. Goedhujs that the sovereignty of the state is manifest, in this form, also in space, as the launching state exercises jurisdiction over its spaceships.

65

PLACE OF SPACE LAW IN THE LEGAL SYSTEM

66 Learned opinions differ on the question whether space law can be regarded as a new branch of law. Many writers have stressed that the regulation of space research makes the law face special tasks which can no longer be solved with traditional methods. This is true. Still. Those who deduce from this the separateness of space law can not be agreed with. J.G.Verplaetse- who has otherwise closely correlated in his system maritime law, air law and space lawexpressed the opinion that

"The step into space takes us outside humanity and legal regulation will be so different from anything seen heretofore, inclusive that the law of the air, as the mystery laws that govern the fish in the ocean are distinguished from human behavior on earth"."

Of particular interest are A.Bueckling's conclusions, doubting whether there canat all be social contacts (soziale Verbundenheit) in space. In his opinion every thing points to the fact that, as regards the sociological aspect, space will remain an empty space in which spaceships will fight for their existence as a social expeditionary unit, regardless of any binding authority. Until today - he writes - law had followed the gravitational law of the earth. Now it would impossible

to

simply

extend

the

scope

of

International

law

over

phenomenalying beyond the scope of earthly empirical laws .At another place he writes that any attempts by the human intellect to project the international legal titles into outer space is a hybrid against the Creative Will (schopfungswidriges rnenscliches unterfanqenr).

Other western writers deduce the separateness of space law from its connections with natural law. Even with divine law as e.g., A.G. Haley who affirms that positive law cannot be the basis of space law and, as in the period of the great discoveries of the is" and 16th centuries, it is ones more the natural law concept which should provide the juri dico-philosophican background to the new human relations arising in outer space.

67 Others, starting from the same preliminaries, arrive at just the opposite conclusions, namely that the terrestrial positive law must, of necessity, be projected into space. The final solution, Rauchhaupt writes "will probably be based on natural law or divine law, and inevitably governed by the logic of law. This will mean the extension of the international public law in the highest moral sense and in the hope that it will meet with God's satisfaction.

In the view of socialist jurisprudence, space law presents such consensual (contractual and customary) rules as are based on the confirmable wills of the ruling classes of states having different social and economic systems. This is even more so in the case of national. Domestic rules belonging to the category of space law (space law in a wider sense), which are part of the respective legal superstructure. Obsolete as it may be in the field of natural science, the geocentric out look is absolutely correct in space law. As long as it wishes to remain on the firm ground of reality, the science of space law should not look else where for its foundations and try to find legal norms for analysis and classification in some 'extraterrestrial legal systems.

The same goes for metalaw, the concept introduced by A.G. Haley. His starting point is that like all laws of the human community, so also space law can only apply to human communities. Astronautics, however, may lead to contacts should not be regulated by an anthropocentric space law. That is why it is necessary to elaborate a 'Iaw-beyond-Iaw' or metalaw which would govern relations among sapient beings of different principles of natures, living in indefinable numbers, under different principles of natural law.

Though it may seem controversial, in laying down the foundations of space law the anthropocentric characters of law must still be maintained. For our generation the contacts with intelligent beings supposedly living on other celestial bodies will present no legal problem waiting for regulation, so there is no

need

for

the

concept

of

the

space

law

and

its

classification

being influenced by Utopian speculations belonging to the world of science

68 fiction This kind of hypothetical matter does not pertain to the conceptual scope of space law. Until coming centuries fail to create factual bases, the problem may be just as untimely as nuclear law could have been at the age of Grotius.

It follows that the law of space is a system of rules not fundamentally differing from that of other branches of law, and further, since it would be too early to consider it as a separate branch of law as distinct from the national law, and international law, if this discipline is still dealt with apart, it is rather for the sake of expediency or for didactic reasons only. Its relationship to international law or to the corresponding domains of national law will be not differ from the similar relationship of air law or maritime law.

The outlook concerning the concept and systematization of the law of space dominant in socialist jurisprudence - differs sharply from the Utopian trends sometimes evoking a justified mistrust of space law, i.e. it will help scientific research focus on the legal forms of an international co-operation capable of promoting the realistic aims of space exploration.

69

INTERNATIONAL COOPERATIONS OF INDIA WITH OTHER COUNTRIES:

70 The International Cooperation Group (ICG) in DGCA handles all the international programs with international organizations on matters relating to policy, technical, and safety matters with the main aim of enhancement of aviation safety in India. International Organizations participating in the international programmes underline their willingness to maintain and enhance a high level of aviation safety in India through joint cooperation. The first component of the ICG is a voluntary partnership between international bodies, non-governmental organizations, national aviation authorities, operators, research organizations, as well as aircraft and equipment manufacturers aiming at enhancing aviation safety through safety analysis, implementation of cost effective action plans, and coordination to promote safety initiatives. DGCA has ensured that through ICG there exists a global mechanism for information exchange for timely communication among the aviation community at national and international levels. The ICG ensures: · Cooperation on regulatory matters. · Information for sharing arrangements. · Exchange of technical information. · Convergence in regulatory practices and harmonization of regulations. · BASA and Technical Arrangements. The ICG intends to promote information sharing at the national or international levels. This enhances global recognition of participating countries, larger market acceptance and increased potential for business.

Cooperation with Brazil and South Africa India, Brazil and South Africa have entered into an agreement on cooperation in key areas. The three countries, though geographically located far apart, have similar aviation scenario and can help each other in development with cooperation and sharing of resources. The programme is managed by a Steering Committee. Talks with the authorities are being held for cooperation in issues of accident and incident investigation, certification of aeronautical products and environment. Under the aegis of Trilateral Joint Commission of India-Brazil-South Africa (IBSA) Forum, a cooperation programme between India and Brazil was initiated. The purpose of the programme was to have a ‘Memorandum of Understanding (MoU)’ and

71 ‘Implementation Procedures (IP)’ signed between the two countries on airworthiness certification and in general promotion of aviation safety. Subsequent to concurrence of both the Governments of India and Brazil, the MoU and IP have been signed between ANAC and DGCA.

Israel Israel’s CAA, after a study of India regulatory system and production oversight, has signed an agreement of Implementation Procedure with India on cooperation in aviation and acceptance of aeronautical products. Under this procedure, aircraft parts and airframe structures are manufactured by HAL under DGCA’s regulatory oversight. Such cooperation programs are expected to rise as our manufacturing industry becomes more competitive.

New Zealand New Zealand’s CAA and its aviation industry has had dialogue of cooperation in various areas of aviation activity, particularly in engineers and pilot training.

Australia Australian aviation authority have shown interest in having an MOU with India on the acceptance of aeronautical products. Presently many MROs in Australia are approved by DGCA and hundreds of young Indians are receiving pilot training at Australian flying training institutes. India made Hansa aircraft has been taken up for certification in Australia. Likewise, Australian products have also been accepted for operation in India.

Cooperation with Russia

India signed an Implementation Procedure (IP) with Russia in 2005, on certification of each other’s aeronautical products which conform to specific Certification Standards. Russian helicopters certified by DGCA India have been in operation in India for some time and many Indian aircraft mechanics and crew have received training in Russia. Recently Russia has shown keen interest in new products for certification and manufacture in India. An MRO for helicopters is also being planned.

72 Cooperation with France France has been a partner in Indian aviation activities for a very long time. It has offered several cooperation programs in the past, individually and also under the EU umbrella. Activities included operational areas, airworthiness, licensing, special operations like RVSM, ETOPS, Low Visibility Operations, Lease & interchange of aircraft, accident and incident investigation and certification of large aircraft and rotorcraft etc. A cooperation programme was signed between the Governments of India and France in Paris recently. French DGAC is also assisting DGCA in the establishment of its Training Academy in collaboration with AAI, where DGAC will provide cooperation with their National School of Aviation (ENAC), located at Toulouse. A steering Committee has been formalized to establish long term technical co-operation.

Cooperation Programs with European Union An European Union-India Civil Aviation Cooperation Programme (till November 2007) was accomplished with over a hundred activities for the aviation personnel in India. The training and technical assistance programs included airworthiness, operations, aerodromes, licensing and CNS/ATM and air transport subjects, including On the job training on audit procedures. The programs involved activities in both India and Europe. After the completion of the programme, European industry sponsored programs have helped in continuation of the activities. Several activities on operational and airworthiness issues have been undertaken with the help of aircraft manufacturers. Presently the programme is active in the form of South Asia Regional Initiative (SARI), which is helping implement international regulations in South Asia. India has taken a lead in this regard and has already implemented CAR 145 on maintenance organizations. EASA Regulations on Continuing Airworthiness have been adopted in India in the form of CAR M. A project for Institutional Capacity Building for the Civil Aviation Sector in India (ICCA) has recently commenced with the kick-off meeting in March 2010. The project is funded by EU and is for a duration of 34 months with the Inception Phase (2 March -1 June 2010), Execution Phase (Month 4-33) and the completion phase (month 34). The project will be monitored by Project Steering Committee (SC), which

73 will endorse and steer the implementation process at the completion of the Inception phase in June 2010.

USA Cooperation Programme (ACP) with USA Prior to November 2006, the working relationship was limited mostly to technical discussions on GNSS. Today, the FAA is working with the Indian government on a wide range of technical activities, and establishment of an FAA field office in India has greatly helped cooperation with FAA on a day-to-day basis. Joint Aviation Steering Committee (JASC) Cooperation work between the FAA and the India is coordinated through a Joint Aviation Steering Committee (JASC). These cooperative efforts take place under five working groups, which include air traffic, aircraft certification, flight standards, airports and environment. The FAA, U.S. Trade and Development Agency (USTDA) and the Indian government held a very successful U.S.-India Aviation Partnership Summit in December 2009. In February 2010, USTDA has approved a $370,000 grant to support a program designed to provide guidance to foreign aviation authorities on requirements for direct commercial air carrier operations to the United States. The program is planned for late June 2010 in San Francisco and Seattle. India is one of eight countries invited. In March 2010, JASC met at Hyderabad during the India Aviation 2010 and the two sides conducted an appraisal of the cooperation programs underway. Activities completed till date include air traffic flow management procedures including signing of two agreements of cooperation with FAA for support by US Trade and Development Agency (USTDA) for assistance on helicopter operations (Bell Helicopters) and training on certification of aeronautical products (HAECO Parts Group USA). Airworthiness Joint Working Group The U.S. and India committed to work together toward a Bilateral Aviation Safety Agreement (BASA) in November 2006 with the signing of a Memorandum of Consultation. Since then, the DGCA and the FAA’s Aircraft Certification Service have been discussing a path toward a BASA, including a long-term training plan for DGCA personnel. The DGCA has sent 19 DGCA officers for training in the United States in the last three years and the FAA has trained 25 more in India. FAA’s

74 Certification assessment visit for shadow certification of Indian aeronautical products is expected to take place in June/ July, 2010. Air Traffic Joint Working Group Indian experts attended an ADS-B and GBAS seminar in New Delhi on January 2829, 2010. Four representatives from the WAAS Program Office, including Ms. Deborah Lawrence, traveled to India for a GPS Aided Geo Augmented Navigation (GAGAN) Roundtable meeting during the week of February 22. These discussions will lead to future technical assistance agreements to support efforts to certify the GAGAN system. In addition, the Indian government plans to send experts to the FAA Technical Center in the summer of 2010 to gain more knowledge on RVSM implementation. Airports Joint Working Group Representatives from DGCA & AAI had a productive JASC Working Group meeting with the FAA Airports organization in December 2009. They discussed a wide range of topics, including wildlife mitigation, airport lighting, pavement, airport safety certification, runway status lights and Engineered Materials Arresting System (EMAS). They also agreed to follow up on a potential Airport Safety Workshop in New Delhi later this year. Environment Joint Working Group DGCA had discussions with the Office of Environment and Energy (AEE) in December 2009 to the discuss the outcomes of the ICAO High-level Meeting on International Aviation & Climate Change as well as future work plan for environmental cooperation. Presently we have planned to work on the measures to reduce emissions, development and use of alternate fuels, and means to mitigate noise at the airports. A seminar on this subject will be held this year. Aviation Cooperation Programme (ACP) The ACP has completed its first two programs, an ATFM seminar in October 2008 and the Air Traffic Management Training Program (ATMTP) in March 2009. The ACP recently finalized projects in aerospace manufacturing standards and helicopter operations and has submitted four more, including a follow-on project to the ATMTP; a Next Gen/SESAR assessment; a ground-based GPS augmentation system assessment; and a continuing training program for inspectors. The ACP had an exhibit at the India Aviation 2010 air show. Under a rotorcraft operations programme under ACP of US$ 500,000 funded by USTDA, a Bell helicopter expert has been

75 provided to DGCA for providing expert advice on helicopter operations. Another programme on training on specialized training on manufacturing techniques has been finalized and is about to start.

Cooperative Development of Operational Safety and Continued Airworthiness Programme – South Asia (COSCAP-SA) The Co-operative Development of Operational Safety and Continuing Airworthiness – South Asia under the aegis of ICAO, is a joint programme of seven SAARC countries, namely India, Pakistan, Nepal, Bhutan Bangladesh, Sri Lanka and Maldives. The programme is aimed in assisting the participant States in developing their air regulations and standards and to improve their independent oversight capabilities. The programme is managed by a Steering Committee consisting of the Directors General of the seven States. ICAO Headquarters and Regional Office Bangkok carry out overall supervision and provide guidance to the programme. The seven participating States contribute finances to the programme in accordance with the services rendered to the individual State and as determined by ICAO, Headquarters. The project also enhances the individual oversight capability of the each participant State by providing on-site training of national inspectors and conducting systematic assessments of States’ flight safety organizations. The project started in the year 1997 and is presently into its Phase III is upto year 2012. Supplementary programs like South Asia Regional Aviation Safety Team (SARAST) and other initiatives have greatly helped the knowledge of the SA Region in aviation matters and will manifest itself in improvement in the safety record of the region.

International Civil Aviation Organisation (ICAO ) As a contracting State, India has played a very proactive role in initiatives of ICAO. India has participates in environment related endeavors and supports the view that any such global initiatives should be under the aegis of ICAO. India is a member of Group on International Aviation Climate Change (GIACC), which deals with issues of standards and measures to reduce the emissions and is also a member of Committee on Aviation Environment Programme (CAEP). India has implemented the Standards and Recommended Practices (SARPs) adopted by ICAO and actively participates in the formulation of regulations based on these standards.

76

VIOLATIONS REGARDING AIR SPACE LAWS:

77 1. Brief Location: Charkhi Dadri, India
Fatalities: 349
Survivors: 0

In November, 1996, a Kazakhstan Airlines modified military plane flying flight KZK 1907, carrying 27 passengers and 10 crew, was descending to land at a Delhi airport. The cockpit crew had limited English, and they relied upon a radio operator to speak to Air Traffic Control, creating a greater risk for mistakes. The plane was cleared to descend to 4600 feet, but the Kazakhstan’s radio operator had failed to inform the crew that they had to stay at that altitude, and they continued descending.

Meanwhile, a Saudi Arabian Airlines Boeing 747 carrying 312 people, SVA 763, took off from Delhi flying directly towards them and was cleared to 4300 feet. The Kazakhstani flight was descending through 4300 feet, and it would actually have passed under the Saudi Arabian jet, but just then the radio operator remembered to convey the message that they should remain at 4600 feet. They began to climb again, and the planes saw each other too late. The tail of the Kazakhstani plane cut through the Boeing’s wing. The Boeing lost control, broke up, and crashed, killing everyone onboard. The Kazakhstani plane soon crash-landed. Four people were rescued, but all were critically injured and died soon later.

The Delhi airport used a radar system that showed only approximate locations of each plane, which was outdated long before the ’90s. They also only had one air corridor open for civilian traffic, meaning that takeoffs and landings use the same airspace. Investigators recommended several changes to the airport, and the national aviation authorities made it mandatory for all flights in and out of India to be equipped with a Traffic Collision Avoidance System.

2. Brief Location: Aurtangabad, India Fatalities: 55

Indian Airlines Flight 491 was on its connecting route from Delhi to Bombay with en route stops at Jaipur, Udaipur and Aurangabad on 26 April, 1993. The heavily laden aircraft started its takeoff from Aurangabad's runway 09 in hot and humid

78 temperatures.
After lifting off almost at the end of the runway, it impacted heavily with a lorry on a highway at the end of runway. The left main landing gear, left engine bottom cowling and thrust reverser impacted the left side of the truck at a height of nearly seven feet from the level of the road. Thereafter the aircraft hit the high tension electric wires nearly 3 km North-East of the runway and hit the ground. The probable cause of the crash was the 'Pilots' error in initiating late rotation and following wrong rotation technique' and 'failure of the NAA to regulate the mobile traffic on the highway during the flight hours'.
Fifty five passengers were killed while 63 were injured in the crash.

3. Brief Loacation : Patna, India Fatalities: 39

Allince Air Boeing 737 passenger plane, a Boeing 737 passenger plane with 58 people on board crashed in flames into a housing complex near the eastern Indian city of Patna on July 17, 2000. The plane, which was exactly 20 years old, was scheduled to be taken out of service by the end of the year. 
Thirty-nine bodies, most of them burned beyond recognition, were pulled from wreckage after the Boeing 737-200 crashed into two brick houses about a mile from its destination.

4. On June, 2009 The cargo plane with Russian markings has been cleared to take off from the Mumbai International Airport. The plane with 18 passengers including two crewmembers had intruded into Indian airspace and landed at the Mumbai airport on Friday night. It is likely to take off at any time now from the main runway.

Government sources have told NDTV that they didn't find anything wrong as of now and the incident appears to be a 'procedural error'.

The AN-124 aircraft of Russian origin carrying ammunition and eight persons on board entered into Indian airspace without the right code and ATC clearance, following which it was escorted to Mumbai airport by Indian Air Force planes.

5. Air India plane lands in Mumbai without ATC clearance

79 Saurabh Sinha, TNN Apr 13, 2013, 02.52AM IST

NEW DELHI: Mumbai came close to an aviation disaster on Friday morning when an Air India aircraft landed at the busy cross-runway airport without clearance. Luckily, there was no other aircraft movement on the runway or approach funnel at the time. Flight AI 944 was coming from Abu Dhabi with 81 passengers and took air traffic controllers by surprise when it landed there around 7am. Director general of civil aviation (DGCA) Arun Mishra confirmed the incident and said both the pilot and copilot have been de-rostered.

6. Records from the airline show that on March 20, a pilot operating a flight from Shillong to Kolkata decided at the last minute to change the runway he would use to take-off. Close to 30 passengers were on board. Records show there were strong winds near the airport. So the pilot decided to abandon Runway 04, used for virtually every plane taking off from Shillong. That's because the other runway -22 - is very short and faces a range of hills, factors that could lead to a crash. Alliance Air in fact forbids its pilots from using Runway 22 - a diktat the pilot ignored at the last minute.

The safety violation was noted by the Air Traffic Control (ATC) at the Shillong Airport but it did not file a complaint with the Directorate General of Civil Aviation (DGCA), the regulatory body for all airlines.

7. DGCA grounds erring pilot, but Air India lets him fly NEW DELHI: Shockers from the Mumbai landing-sans-ATC-nod incident don't seem to end. It has now emerged that the captain — who was grounded by the directorate general of civil aviation (DGCA) on Friday afternoon for the unauthorized landing in Mumbai earlier that morning — operated yet another return flight from Mumbai a day later!

The blatant disregard of DGCA's grounding order happened when the captain operated a Mumbai-Bangalore-Mumbai (AI 603) flight on Saturday morning. The airline took him off flying duty only after he returned to Mumbai, when TOI had frontpaged the story on the incident and the fact that the pilots involved in that had been de-rostered.

80

A senior DGCA official said: "This is unacceptable and we will probe how did the airline let a grounded captain operate flights."

An AI spokesman said: "The DGCA communication had not reached us till the time the captain operated the Mumbai-Bangalore-Mumbai flight on Saturday. After returning to Mumbai, the captain met DGCA officials and we got to know of his grounding order. He was then de-rostered (taken off flying duty)." Interestingly the airline let the grounded captain to operate the return Bangalore-Mumbai flight also, by when the news of his de-rostering order had become public. Airline sources indicated how DGCA directives for de-rostering licenced staffers — pilots, engineers and cabin crew — are taken lightly. "This incident of pilots landing without ATC clearance happened on Friday morning and the DGCA action came happened by late afternoon. But till we get the grounding order in writing, why should we act just on hearsay?" said an official.

CVR may hold key The real reason for delayed response by airlines, however, may be completely different. Cockpit voice recorders (CVR) have a recording loop of three hours. Which means, they retain only last three flying hours' conversation in the cockpit by recording over previous statements in a loop.

"CVRs contain exactly what was happening inside cockpits when any incident happens. Not reporting an incident on time means the plane's CVR will not be seized and the plane will go for other flights, erasing the conversation inside the cockpit at the time when the incident happened. That's why all airlines delay reporting incidents and taking action against their pilots," said an industry veteran who has taken part in many investigations.

8. A senior airport official and a helpful fireman at the Tirupati airport guided a Jet Airways flight carrying around 60 passengers to land on the morning of January 9 as the two air traffic controllers were not available at the time.

81 It might sound straight from a Hollywood movie, but the Airports Authority of India (AAI) is not amused and is mulling disciplinary action against officials for the major lapse.

On January 9, a Jet Airways flight from Hyderabad was readying to land in Tirupati airport in Renuguntta. However, the two (Air Traffic Control) ATC officials were not present at that point of time.

According to officials, V Janarthanan, deputy general manager at the airport panicked, and asked a fireman at the airport to relay to the pilot what he would tell him on the phone.

The Jet Airways plane made a smooth landing with the passengers unaware that a fireman had helped the pilot to land.

When asked about the incident D Devaraj, regional executive director at AAI told IANS: "We are taking action against the concerned officials."

An AAI team conducted an enquiry into the episode and has submitted its report.

As to the reason for the absence of two ATCs - "What will you do when you fall sick and not able to go to office? You will inform office that you won't be coming in. That is what happened at Tirupati," said Mr Devaraj.

He said the fireman happened to be at the ATC tower at that point of time and was not deputed to guide the incoming flight.

A Tirupati airport official told IANS that there are set procedures to be followed during such times.

"The landing of the aircraft could have been delayed. Planes normally have sufficient fuel to circle (the airport) till the clearance for landing is given," he said.

The plane could have also been redirected to Chennai which is just 15 minutes away.

82

Despite several attempts V Janarthanan was not available for comments or clarification.

9. A kingfisher ATR 72-500 aircraft going to Jamnagar in Gujarat with 30 passengers was given clearance to take off by Air Traffic Controllers (ATC) around 1:30 pm, when it was ready to take off, it was asked to abort.

There was another aircraft GO Air which had just landed was also asked to vacate a runway but instead of exiting from there, it exited from another taxiway.

This meant that both aircraft at some point were on the same runway, but sources say they were not on collision course.

The Kingfisher plane was ordered to move from the main runway to the taxiway 300 metres away for another Kingfisher flight from Delhi to land. The sudden maneuver required of the pilot went off smoothly.

Meanwhile another Kingfisher aircraft was coming in to land from Delhi, at that point the runway was still occupied by two aircraft - Kingfisher ATR and Go Air.

Ideally ATC should have asked the incoming Kingfisher airline to go circling since there were two planes on the ground.

But airport officials stress there was no danger of a collision. They say that while there was enough time for the Kingfisher flight to move safely off the runway, this is a case of bad traffic planning by Air Traffic Controllers.

There are reports that there was less than ideal separation between two Kingfisher aircraft and it could have been dangerous.

However, Kingfisher sources say, there was separation of 8 nautical miles and it was safe distance.

83 All this happened in a span of 3-4 minutes.

In keeping with Kingfisher airlines policy of safety and guest comfort above everything else and in accordance with established procedure, the commander decided to return to bay and get the aircraft checked after seeking the concurrence of Mumbai ATC. The aircraft an ATR 72-500 was checked by an engineering team and took off at 14:50 with all 30 guests and crew on board.

Statement from Kingfisher Airlines:

Shortly after Kingfisher Airlines fight IT 4123 operating Mumbai to Bhavnagar had been cleared for takeoff by the ATC Mumbai at 13:36. The commander of this flight was directed by ATC to reject take off immediately.

The Aircraft which was on its initial take off roll immediately aborted takeoff at low speed in compliance with instructions of ATC.

In keeping with Kingfisher airlines policy of safety and guest comfort above everything else and in accordance with established procedure, the commander decided to return to bay and get the aircraft checked after seeking the concurrence of Mumbai ATC.

The aircraft an ATR 72-500 was checked by an engineering team and took off at 14:50 with all 30 guests and crew on board.

10. Scare at Delhi airport after plane goes off radar Press Trust of India | Updated: January 28, 2010 23:38 IST Absence of communication between a Kingfisher Airlines flight carrying 50 people from Amritsar to Delhi and the Air Traffic Control (ATC) in New Delhi for about five to seven minutes led to a 'hijak' alert at the Indira Gandhi International Airport on Thursday evening.

84 The ATC sources said that turbo-propped ATR aircraft, during its 40-minute flight, was not in communication with the ATC for about seven minutes, triggering the alert issued by Indian Air Force (IAF) communication wing.

Security personnel at the airport were in a tizzy for a while following the alert, they said adding the picture became clear soon after the contact resumed between the plane and the ATC.

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CONCLUSIONS & SUGGESTIONS In my opinion and as a student I would like to share that it always fascinated me about how a plane so efficiently carries passengers and what makes an aeroplane. After the incident of 9/11 we all have been concerned about our safety and what the government as an entity to protect our being is doing. In this study I got to know about how exactly theory and practical are way different in reality and what makes a theory to constitute something so practical as a code to protect and regulate violations on the government’s front. Also I would like to suggest that we need to reconsider our laws which are very narrow in nature and to also look at the recent violations which are taking place inspite of so much prevention. These small violations can one day lead us to a bigger disaster which we all will regret.

Ateepriya Bhatia

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BIBLIOGRAPHY PRIMARY SOURCES: CONVENTIONS REFERRED: TABLE OF CONTENTS The Chicago Convention, 1944 The International Air Services Transit Agreement, 1944 The International Air Transport Agreement, 1944 Protocol on the Authentic Trilingual Text of the Convention on International Civil Aviation, 1944 The Protocol on the Authentic Quadrilingual Text of the Convention on International Civil Aviation, 1944 The Warsaw Convention, 1929 The Hague Protocol, 1955 The Guatimala City Protocol, 1971 The Additional Protocol No. 1, 1975 The Additional Protocol No. 2, 1975 The Additional Protocol No. 3, 1975 The Montreal Protocol No. 4, 1975 The Guadalajara Convention, 1961 The Geneva Convention, 1948 The Rome Convention, 1952 The Tokyo Convention, 1963 The Hague Convention, 1970 The Montreal Convention, 1971 The Montreal Protocol, 1988 The Montreal Convention, 1991 The Montreal Convention, 1999 The Cape Town Convention, 2001 The Cape Town Protocol, 2001

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AGREEMENT BETWEEN PAKISTAN AND INDIA ON PREVENTION OF AIR SPACE VIOLATION

STATUTES REFERRED: 1. The Aircraft Act, 1934 2. The Aircraft Rules, 1937 3.The Aircraft Rules, 1994 (Demolition Of Obstructions Caused By Buildings And Trees Etc.) 4.The Aircraft (Carriage of Dangerous Goods) Rules, 2003

SECONDARY SOURCES: 1- SPACE LAW - GYULA GAL 2- SPACE LAW - C.WILFRED JENKS 3- RIGHTS IN AIR SPACE

- D.H.N.JOHSON

4- PUBLIC INTERRNATIONAL LAW

- TANDON & TANDON

NEWSPAPER AND NEWS CHANNEL REFERRED: Ndtv Times Of India Hindustan Times Deccan Chronicle Zee News Aajtak

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REMARKS

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THANK YOU