Air and space law are two distinct areas of law, though are often confused as one. They share certain features, and the definitions of both sometimes overlap with each other, but are nonetheless separate, with different specializations and departments in law schools. Whilst air law dates back several centuries, space law is a relatively nascent field.
This article gives an overview of air and space law, delves into their scope, traces their development over the course of history, and essays an attempt at defining their boundaries with respect to each other.
The fields of air and space law share considerable overlap, given that both areas of law deal with the space above land. Nonetheless, there is a distinction between the two. Air law, also known as aviation law, is the area of law concerned with civil aviation, both directly and indirectly. Space law, on the other hand, is the body of law that governs space-related activities. It is a relatively new area of law, tracing its origins only to the early part of the twentieth century, but one that has witnessed astronomical growth in the past few decades.
Sizeable sections of these corpora of law are necessarily international in nature which leads to them being bundled under international law. However, they are still nuanced subjects that require detailed analysis. The first law related to aviation law was the 1784 Paris law related to aircraft a year after the first hot-air balloon was flown. Space law, by most accounts, was first theoretically engaged within 1932 by Czech jurist Vladimir Mandi in his Das Weltraum-Recht: Ein Problem der Raumfarht—Space Law: A Problem of Space Travel.
As mentioned above, both these areas of law are distinct and deal with different subjects. Air law deals with aircraft that are both heavier-than-air—helicopters, airplanes—and lighter-than-air, i.e., balloons, nonrigid airships, and dirigibles. Air law is mostly international in scope due to the nature of civil aviation. In particular, aviation law concerns flight, air travel, and related legal and business concerns. There is also some overlap with maritime/admiralty law.
As a consequence, air law concerns aircraft, pilots, and flight attendants, and the legal implications of international air-travel. Airports, however, are usually administered at the municipal, provincial, or federal/national level, and are thus out of the scope of air or aviation law. Space law, on the other hand, governs what is conventionally known as ‘outer space. According to the United Nations Office for Outer Space Affairs, space law addresses the preservation of space and Earth environment, liability for damages caused by space objects, the settlement of disputes, the rescue of astronauts, the sharing of information about potential dangers in outer space, the use of space-related technologies, and international co-öperation.
Space law, like air law, is necessarily international in most aspects. Outer space cannot be laid claim to by any state, as it is held as the “province of all humankind.” Thus, any appropriation of any part of outer space would raise the threat of retaliation and conflict, given its increasing importance to human affairs.
II. International Institutional Framework
Air law, where it overlaps with international law, is mediated by the International Civil Aviation Organization (ICAO), a specialized agency of the United Nations. ICAO is funded and directed by 193 member countries as signatory states to the Chicago Convention on International Civil Aviation of 1944.
ICAO’s main objective is to “maintain an administrative and expert bureaucracy” that supports international diplomacy in air law and to “research new air transport policy and standardization innovations.” However, it is important to note the limitations of ICAO: it is not a global regulator. ICAO regulations do not supersede legislation and regulations in any particular country. ICAO is restricted to providing a forum for deliberation between countries on sanctions, punitive measures, etc. on another country or countries for violating certain rules and regulations.
For air law, there also exists the International Air Transport Association (IATA). IATA is a trade association of the world’s airlines that was founded in 1945. IATA works to increase airline safety, environmental consciousness, etc. It is the successor to the International Air Traffic Association that was founded in 1919 to foster cooperation between airline companies in legal areas.
Apart from these organizations, there are certain treaties that govern laws related to aviation. One is the Chicago Convention of 1944. The others are the Warsaw Convention of 1929, the Tokyo Convention of 1963, the Montréal Convention of 1999—which amended the Warsaw Convention—and the Cape Town Treaty of 2001.
Space law, on the other hand, is regulated by the five international treaties and five sets of principles governing outer space. These treaties are:
- the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”);
- the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the “Rescue Agreement”);
- the 1972 Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention”);
- the 1975 Convention on Registration of Objects Launched into Outer Space (the “Registration Convention”); and
- the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Treaty”).
The five sets of principles governing outer space law are:
- the Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space (1963);
- the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (1982);
- the Principles Relating to Remote Sensing of the Earth from Outer Space (1986);
- the Principles Relevant to the Use of Nuclear Power Sources in Outer Space (1992); and
- the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries (1996).
With the expanding scope of air travel and space exploration—including the use of drones, both military and commercial, satellites, interplanetary travel, colonization efforts of other planets, among several other activities—the importance of air and space law is growing side by side. National governments are amending old legislation on the matter or promulgating legislation on areas where they did not have any; international treaties, too, are in urgent need of revamping to meet the challenges of the 21st century.
It is thus important to study and analyze these two corpora of law. As the importance of air and space to human activity increases so to will the possibility and potential for both conflict and cooperation. Law, notably, provides mechanisms for both of those things.