Air and Space Law

P.J.Naidu
Assistant Professor
 Introduction
• Air space & International law : Conventions
and Treaties.
• Domestic Implementation of International Air
Law in India.
• Regulatory bodies of Civil Aviation in India.
• Aviation and Dispute settlement in India.
• Contemporary issues in Civil Aviation sector
in India.
• Global Air Safety Regulations.
• Global Air Security Regulations.
• Anti-Hijacking, Aviation Terrorism and Global
Regulations.
• Aviation Liability.
• Airline Management in India.
• Airline Revenue Management.
• Airline Terminal and Service quality management.
• Air Space and Air Traffic Management.
• Communications, Navigation, Surveillance/Air
Traffic Management.
 Space Law
• Historical background.
• Shift from Air law to Space law.
• Development of the space law – UN
contributions.
• Fundamental principles.
• Freedom of exploration, use and scientific
investigation.
• Jurisdiction and control.
• Co-operation between states.
• Absolute liability and fault liability.
• Registration and identification.
• Some problems of current concern – removal
of space debris and demilitarization.
• System of Financing Outer Space Activities.
• National Space Legislation.
 Air Law
• It is a series of rules governing the use of
airspace and its benefits for aviation.
• It is intertwined with other areas of laws.
• It involves Constitution Law, Administrative
law, Civil Law, Commercial Law and especially
Criminal Law.
• International Law is always paramount.
 History and Development of Air Law
• First engine powered flight had successfully
been carried out by the Brothers Wright in 1903.
• German balloons repeatedly made flights above
French territory before 1910.
• The French Government was of the opinion that
for safety reasons the codification was needed.
• As a result the Paris Conference of 1910 was
convened.
• That conference did not adopt the idea of
‘freedom of the air’ but was in favor of the
sovereignty of states in the space above their
territories.
• Following the 1st World War, the 1st scheduled air
service between Paris and London come into force
on 8th Feb 1919.
• The already existing regulations was considered
incorporated into a convention.
• A choice had to be made between a free airspace
analogous to the principle of maritime law, and an
airspace governed by the sovereignty of the states.
• The Paris Convention was concluded in 1919, the
year in which that 1st flight took place.
• Custom is not a source of law for Air Law.
• Air Law is mainly consisting of written law.
• Treaty Law encompasses all international treaties
in which multilateral conventions are the primary
source of law.
• Subject matters like the state, the owner, the
operator, the passengers, the owner of the on-
board goods, the mortgage holders, etc., their
rights are properly safeguarded by the
achievement of the most important elements of Air
Law.
• Bilateral instruments, such as national Law,
contracts between states and airline companies
or contracts between airlines companies, and
general principles of International law.
• Litigation between national and international
law, or it between private and public law is
applicable in Air law.
• Private International Law is for the series of rules
pertaining to the relations between private
persons involved in the operation and use of
aircraft.
• Public International Law is the corpus of legal norms
pertaining to the relations involving states and
international organizations in respect of those
activities in aviation among problems of political,
technical, economical, financial, social or legal
nature.
• The International Civil Aviation Organization (ICAO):
• Its set-up is starting by the Article 64 of Chicago
Convention, 1944.
• The impulse of its set-up is generated as to the field
of aviation in structural innovations and of
international co-operation and law making after the
2nd World War.
• Its daily business is run by a council, a permanent
body which performs a variety of duties in the legal,
technical and economic field.
• It has a state membership of over 150 states.
• It has a legal committee, which is taking charged with
preparing and drafting international treaties and
conventions on the Air Law prior to their submissions
to a Diplomatic Conference for final approval.
• The role of council lies to the settlement of disputes
as it is authorized to request legal opinions from the
ICJ at the Hague offering interpretation of treaties
and conventions or acting as a mediating role in
disputes.
• The International Air Transportation Association
(IATA):
• This is not an official body.
• Its aim and objective are clearly set out in its
incorporating acts for the safe, regular and economical
air transport for the benefit of the air aviation.
• It foster air commerce and to study problems
connected therewith by means of collaboration
among airlines engaged directly or indirectly in
international air transport service.
• Its job is always working with ICAO and the other
international organizations, lies in the sectors of
technical and commercial.
• IATA has another important functions, such as
handling the ticketing clearing for airlines
account under the responsibility of its financial
committee since 1947 in London, later, it moved
to Geneva.
• The other function of it is to fix tariff rates for
international air transport, its activities find their
expression in Resolutions and Recommended
Practices adopted by the Traffic Conferences
which become binding on the members when
approved by interested governments.
 The Air Sovereignty Concept and Its
International Recognition
• State sovereignty over its territorial airspace is
the basic principle underlying the whole
system of International Air Law.
• It is an extension of state’s land and maritime
territorial or its complementary element.
• The legal status of airspace held effective when
threat caused to national security and public
order had been apparent by the outbreak of 1st
world war.
• The Paris Convention of 1919 emphasizes the intention
of ‘contracting states’ to recognize an existing rule rather
than to create a new one for mentioning every state,
• Thus the rule also includes ‘non-contracting states’ as an
implied recognition.
• Air sovereignty cannot be understood as being absolute
if international flight is occurred.
• The rights even if are exclusive are also subject to
limitations.
• Sovereign jurisdiction could only be concluded as high as
the airspace an aircraft in which the gaseous atmosphere
is sufficiently dense to keep it sustained.
• Therefore Sovereignty would be limited to usable or
navigable airspace.
• With advert of space flight, discussion on delimitation of
state territorial airspace and international outer space
has been re-opened.
• No matter the exact height up to which state sovereignty
extents, it undermines the emergence within the
framework of developing space law, or perhaps a new
aerospace law encompassing both airspace and out space
flight.
• There is no system of general rules of international law
for the definition of the scope of national laws and
jurisdictions.
• The states over its airspace prohibits unauthorized flights
and obligations to conform to territorial laws and
regulations by the foreign aircrafts, the implementation
of these rules by the state becomes most important.
• A state sovereignty in territorial airspace and its legal
consequences cover:
1. Freedom of air navigation in non-territorial airspace;
2. Nationality of aircraft involving control, responsibility.
3. Right of protection assigned to the registered state of
the flag;
4. Use of lawful means to suppress unlawful use of
aircraft;
5. Recognition either of exclusive jurisdiction of the
territorial state or of state of the aircraft’s nationality;
and
6. Concurrent jurisdictions in other areas of civil aviation
activities.
• Bilateral agreement, using the notion of airline
nationality associated with its ownership and
effective control,
• Recognition of transfer of responsibility from the
registration state to the state of aircraft operator,
• Refraining from interference by the territorial
state with its internal order prevailing on board
the foreign aircraft.
• The pressures of the continuing technological
revolution and expanding international and extra
terrestrial activities, there will also be a potential
conflict of states jurisdiction in the matter of
certain cases.
 Penal law and Aviation
1. The Convention on Offences and Certain Other
Acts Committed on Board Aircrafts, signed at Tokyo
on 14th September 1963 (Tokyo Convention);
2. The Convention for the Suppression of Unlawful
Seizure of Aircraft signed at the Hague on 16 th
December 1970 (Hague Convention);
3. The Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation, signed at
Montreal on 23rd September, 1971 (Montreal
Convention).
• The Tokyo Convention tried to resolve a situation
in which complication arises when a state other
than the state in which an aircraft is registered
attempts to exercise its jurisdiction with regards to
offences committed on board such aircraft,
• The offence is committed above territories not
subject to sovereignty of any particular state, like
high sea, or when the place cannot be
distinguished precisely.
• These issues were discussed and the draft was
worked out by the ICAO legal committee and was
concluded in Tokyo in 1963.
 Theories regarding Jurisdiction
1. The territorial theory – the law of the state in whose
airspace the offence has taken place will be applied by its
national courts.
clearly it is not always possible to determine the exact
position of the aircraft at the time the offence was
committed;
2. The national theory – according to this theory the law of
the state where the aircraft is registered is always applied.
3. The mixed theory – side by side with the law of aircraft’s
nationality and the law of the state over which the aircraft
passes is enforceable whenever the security or public order
of such state is threatened by offences committed on board.
4. The theory of the law of the state of departure.
5. The theory of the law of the state of landing.
• Hijacking – An International Crime:
• The eternal pursuit of man has been to lead
peaceful life.
• This is possible only if he believes and acts in the
principle of ‘live and let live’.
• This is equally good for states as they are
organizations of human being.
• Like Municipal Law, International Law also is a
body of rules followed by the states to regulate
their actions inter se.
• UN Charter recognizes the need for the rule of law
on an international plane and stipulates one of the
purposes of the organizations to preserve
‘principles of justice and International Law’.
• United Nations jointly and severally are committed
to respect justice and international law.
• But, it appears that the case of Pakistan is
deliberately violating the international law and
Charter of the U.N. although she is a member of the
U.N.
• This is manifested in her support to two
international delinquents who hijacked the Indian
aircraft to Pakistan.
 Case of Hijack
• On 30th January 1971, an Indian Airlines, Fokker
Friendship aircraft, with 28 passengers and a crew of 4
on board was hijacked.
• The plane, which was on a shuttle service from Srinagar
to Jammu took a sudden turn towards Pakistan border
just when it should have started to come into land.
• Minutes before the plane was to land, the Jammu
control Tower picked up a message from the pilot, said
he was being skyjacked.
• It landed at Lahore (West Pakistan) at 1.25 pm.
• The first official message from the civil aviation of West
Pakistan was received by the Director-General at about
6 pm.
• It said that all are safe and but ‘the hijackers are still in
the aircraft and refuse to come out.
• No sooner the hijackers leave the aircraft, the crew
and passengers will leave back for destination to India.
• However, in spite of eagerness of the GOI for sending
another aircraft to fetch the passengers and crew, the
Pakistan government denied the permission and sent
them by road.
• The aircraft, 2 hijackers and cargo were not returned.
• Meanwhile, political asylum was granted to these
hijackers and certain conditions were purported to,
have been put by the hijackers were also conveyed to
India.
• The conditions were:-
1. The relatives of the hijackers should not be harassed.
2. 36 Al-Fatah men arrested in Kashmir during law few
days be released.
• Non-acceptance of these conditions was threatened
with the warning of blowing up the aircraft.
• It may be pertinent that 1st condition have been put
by the hijackers was not at all material.
• So far as the 2nd condition is concerned, it appears
that Pakistan who is instigating subversive activities in
India was behind this move.
• This amounts to intervention in the affairs of India.
• Pakistan being a member of the UN cannot interfere
in the domestic affairs of India without violating the
Art. 2 (7) of charter of the UN.
• Again, if there are any differences and disputes,
they are to be settled in accordance with the Art
1(1), 2(3) (4), 33(1) of the UN Charter.
• Hijacking and Spying are not recognized means,
both being against the rules of international law.
• This is more so in view of the Tashkent Declaration
under which both states had agreed to all efforts to
create friendly relations as envisaged in the
U.N.Charter.
• This incident cannot be categorized as a friendly act.
• The hijacked aircraft was blown up by the 2 hijackers at
Lahore airport at 8.35 pm.
• The same evening the Indian government handed over
the aide memoire to the Pakistan High Commissioner in
India and Foreign Ministry at Islamabad.
• VIOLATION OF INTERNATIONAL LAW:
• Law of Nations of international law includes treaties.
• Treaty includes convention.
• In regard to the matters of international criminal law, in
1963, the Tokyo Convention on offences and other Acts
committed on Board Aircraft was signed dealing with
the questions of jurisdiction, in which Art 11 is majored
to deal with hijacking.
• It declares actual or attempted hijacking of aircraft as
an act of quasi-piracy committed against the
community of nations.
• The states parties are obliged to take measures for the
restoration of control to the lawful owner.
• Air navigation is of vital importance, freedom and
security in this already risky transport is of prime
importance for the states.
• The necessity for an international agency to deal with
the important development was felt and the 1919
convention established an international commission
for Air Navigation.
• This was taken over by the ICAO created by the
International Civil Aviation Convention of 1944.
• The ICAO is working along with U.N when airlines
and private owners of aircraft in the western
Hemisphere began to be plagued by an increasing
incidence of hijacking of planes.
• The Tokyo Convention of 14th September 1963 is
the 1st attempt to check the problem of increasing
incidence of hijacking inter alia in the Middle East
with a comprehensive international action.
• Concentrated Efforts:-
• The legal committee of ICAO prepared the draft
treaties, The Hague Convention and the Montreal
Convention seeking Panel aspects of aviation to
deal with hijacking.
• The General Assembly of U.N. also referred to the
matter of the draft resolution recommended by the 6th
committee regarding aerial hijacking with the votes in
favor to none against.
• Gist of the resolution:
• The General Assembly condemns without exception all
acts of aerial hijacking or interferences with civil air
travel.
• States to take measures to deter, prevent and suppress
such acts within their jurisdiction and for the extradition
of such persons for their prosecution and punishment.
• The state in whose territory the hijacked aircraft is
landed is obliged to look after the passengers and crew
and provide for their continuous journey.
• The state is also under an obligation to return
the aircraft and its cargo to the lawful owner.
• The states to take collective and severe action
in conformity with the U.N. Charter and in co-
operation with the U.N. and ICAO.
• Pakistan is a party to the resolution and has
voted for it in the legal committee as well as in
the General Assembly.
• Pakistan cannot shirk the responsibility from it.
• Pakistan therefore should pay the adequate
compensation to India as demanded along
with a formal apology.
• The Scope and Purpose of the Tokyo Convention:-
• U/A 1(1), the scope of Convention, it applies to:-
• Offences against penal law,
• Acts which, whether or not they are offences, may
or do jeopardize the safety of the aircraft or of
persons or property therein or which jeopardize
good order and discipline on board.
• The exceptional domain contained in (4) indicating
that aircraft used in military, customs or police are
departed from the general scope.
• The objective of the convention is described as:-
1. To determine the penal law applicable when an
offence committed above territories not belonging
to any particular state, such as the high seas or
place cannot be precisely located.
2. To define the rights and obligations of the aircraft
commander in respect of offences and acts
committed on board which jeopardize the safety of
the aircraft.
3. To define the rights and obligations of the
authorities of the place where the aircraft lands
after an offence or an act which jeopardizes the
safety of an aircraft has been committed.
• Jurisdiction:
• Under the wording of Art 3 dealing in which sub-item
(3) is stating ‘the convention does not exclude any
criminal jurisdiction exercised in accordance with the
national law’.
• There are also cases in which states other than the
state of registration have jurisdiction over such
offences, as is apparent from Art 4 of the convention.
The cases are as follows:-
1. The offence has effect on the territory of such state;
2. The offence has been committed by or against a
national or permanent resident of such state;
3. The offence is against the security of such state;
4. The offence consists of a breach of any rules or
regulations relating to the flight or manoeuvre of
aircraft in such state;
5. The exercise of jurisdiction is necessary to ensure the
observance of any obligation of such state under a
multilateral international agreement.
• Under Art 2 of the Tokyo Convention, it is mentioned
that ‘without prejudice to the provision of Art 4 and
except when the safety of the aircraft or of persons or
property on board so requires,
• no provision of this convention shall be interpreted
as authorizing or requiring any action in respect of
offences against penal laws of a political nature or
those based on racial or religious discrimination.
• Unlawful seizure:
• Under Art 11 of the Tokyo Convention, 1963,
there is a special offence to the Chapter of
unlawful seizure of aircraft since the phenomenal
increasing from the late 1940.
• The obligation on contracting states ‘to take all
appropriate measures to restore control of the
aircraft to its lawful commander or to preserve his
control of the aircraft’.
• This Convention has not adequately covered all
the instances in regard to Hijacking, then the
Hague Convention of 1970 is established to
conclude more specific.
• Extradition:
• U/Art 16(1) of the Tokyo Convention states ‘Offences
committed on aircraft registered in contracting state
shall be treated, for the purpose of extradition,
• as if they had been committed not only in the place in
which they have occurred but also in the territory of
the state of registration of the aircraft’.
• U/Art 16(2) states ‘without prejudice to the provision
of preceding paragraph, nothing in this convention
shall be deemed to create an obligation to grant
extradition’.
• In the absence of restrictive approach to extradition is
required to be elaborated by the Hague Convention of
1970 as following.
• The Hague Convention:
• Hijacking is in fact difficult to overcome because it is
vulnerable, the criminal acts involved are also manifold and
unpredictable.
• The summarization of the criminal acts by the IFALP
(International Federation of Air Line Pilots Associations) as :-
1. A fight between the crew and the hijackers may cause a
complete loss of control of the aircraft.
2. Essential damage may be caused if weapons are used in the
cockpit.
3. Collissions may result from an aircraft being unable to
observe traffic regulations.
4. Fuel Shortage may occur.
5. The crew may be unfamiliar with a particular airport and its
approach procedures.
• U/Art 1 of the Hague Convention, the offences
must have been committed on board an aircraft in
flight, it means there is only one aircraft to be
involved in the matter of hijacking.
• The Hague Convention also contributes more
definitions to the offences like:-
1. The act must be unlawful;
2. There must be some use of force or threat of
force;
3. The act must consist in seizure of an aircraft and
exercise of unlawful control over it or attempt
the threat.
• Either the flight is domestic or international is
applicable to this convention.
• It also provides on the pursuit and punishment of
hijackers, applicable only to persons on board the
aircraft in flight, but is concluded that hijacking as
offences.
• The definition of the flight is that ‘the moment
when all its external doors are closed following
embarkation until the moment when any such
door is opened for disembarkation’.
• Jurisdiction: According to Art 4 of the Hague
Convention, jurisdiction is assigned to the following
contracting states:-
1. The state of registration, when the offence has been
committed on board an aircraft registered in that
state;
2. The state of landing, when the alleged offender is
still on board;
3. The state where the lessee of an aircraft without his
principal place of business or his permanent
residence;
4. The state where the alleged offender is found and
apprehended, and which does not extradite him to
any of the states previously mentioned;
5. Not only hijacking, but also the offender’s use of
force in connection with the seizure is covered by
the jurisdiction.
• According to Art 5 of this Convention, it deals with
aircrafts operate under joint operating
organizations and international operating agencies
may be established by the contracting states.
• According to Art 6 (1) (2) of the Hague Convention,
in order to ensure the offender’s presence, taking
into custody or
• taking other measures have been made obligatory
for the state where he is present, as well as
making a preliminary enquiry into the fact.
• This convention introduces the principle of
universality of jurisdiction, it implies an offender is
liable to prosecution anywhere in the world,
• but with a restriction made subject to the actual
presence of the offender in the particular state
instead of fully honoring this principle.