Protection of Airspace Sovereignty under International Law

Airspace Sovereignty and International Law: an Overview

For the most part of history, nations have vowed to constrain and regulate all activities existing within their own border. The fundamental principle of border control lies within the scope of sovereignty. It is known that states are sovereign entities, which means that such states have the absolute right to protect this sovereignty across the land, the sea, and the heavens. This area of law is particularly important in an era of globalization, where commercial air travel has become increasingly prevalent yet military aerial skirmishes have drastically escalated. International airspace law plays a crucial role in ensuring the safety and security of air travel, regulating the use of airspace, and resolving disputes between states. Although the question here is, does the reality of airspace sovereignty succumb to the framework of International Law? Is there a vertical limit for such sovereignty? In this article, we shall focus on airspace sovereignty, its implementation under the framework of International Aviation and Airspace Law, its rich history and origin, and its reality in the modern era to fully answer the questions stated above.

Fundamental Principles of International Airspace Law

In a nutshell, International Airspace Law governs the state’s sovereignty above its physical land and its subsequent aquatic territories. It is vital to note that a nation’s territorial waters extend exactly 12 nautical miles from the nearest point of its coastline, which is approximately 22 kilometers from land.¹ The fundamental basis of international airspace law is to ensure the safety of commercial flights between nations and to regulate the use of military aircraft during times of war or emergency. Thus, under international law, a nation has the right to govern all activities- whether military or commercial – that occur within its vicinity.²

The major principle of International Airspace Law is the freedom of navigation between transnational commercial bodies. Such a rule is implemented to ensure the egalitarian principle of flight. All aircraft that are strictly for commercial use is to be welcome over airspace jurisdiction, regardless of their nation of origin.³ This principle plays a vital role in regulating commercial travel in our modern age, where airline activities are at an all-time high. Thanks to such a mandate, commercial airspace activity became a prominent pillar for socio-economic growth and international trade and commerce advancements.⁴

History of Airspace Jurisdiction and Legislation

“Cujus est solum, ejus est usque ad coelom et ad inferos”. The statement-which presents itself in Latin-roughly translates to “whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell”.⁵

History tells us that legislation regarding national sovereignty has been prevalent ever since the Ancient Romans ruled over the old world. This Roman text focuses more on property law, stating that a property holder has the right not only to usufruct the land but also what lies beneath it and what floats above it. Coincidentally, such scripts assert the fact that states have always vowed to exercise and govern territorial jurisdiction to make public and private laws valid in space.⁶ Such legal scriptures paved the way for modern implementations of International Airspace Law and the fundamentals of state sovereignty.

It is fairly agreed upon that the first decree governing airspace law was promulgated on April 23^rd, 1784 in Paris, prohibiting hot-air balloon flights without a state-issued permit.⁷ This would eventually lead to a series of failed conferences and statutes aimed at regulating international flight, mainly in Europe.

The first diplomatic document regulating airspace jurisdiction dates back to the Franco-German war of 1871 in which the German delegation declared aeronauts flying over German-occupied territories to be equally treated as their on-land counterparts.⁸ Eventually, the international community- consisting of 19 states- would meet for the first time in France in the year 1910 to implement proper regulations for air navigation. It was, for the most part, a diplomatic failure. But the conference agreed on certain principles which reappeared in the Paris Convention of 1919 and which influenced the Chicago Convention of 1944. Such principles can be summarized as setting up prohibited zones above state territory in which no international flight is applicable; and the establishment of international airlines after the consent of the interested state.⁹ It is believed that the conference is the first evidenced general international agreement upon the idea that usable space above the land and water of a State is part of the territory of that State.

The Chicago Convention

Up until the Second World War, most of the regulations governing airspace jurisdiction were relegated to national legislations and failed conferences; without a unified decree to uphold universal standards.¹⁰ On December 7^th, 1944 The Convention on International Civil Aviation, also known as the Chicago Convention, established a United Nations specialized agency for air travel coordination.¹¹  

In short, the most important article set out by the convention is the first article which states that every nation has complete and exclusive sovereignty over its territory.¹² As well as article three clearly states that member nations are prohibited from using any type of weaponry against commercial aircraft in flight. Such provisions are highly important, for it must be generally understood that the use of force against a foreign aircraft is equivalent to the use of force against the state where that aircraft is registered. This of course breaches article two subsection four of the United Nations charter, along with provisions of international law.¹³

The question that presents itself here is obvious, what is the vertical boundary of a nation’s airspace sovereignty? Well, the short answer is that there is no definite answer. There is no internationally recognized agreement that clearly states the exact measures of nations’ airspace limits.¹⁴ Nevertheless, there have been some attempts to set it at the Karman Line which sits about 100 kilometers above sea level, but for now, there is nothing legally binding.¹⁵

The Reality of International Airspace Law

Airspace Violation 1

On September 1^st 1983, a Korean Air Lines Boeing 747 passenger jet, flying from New York City to Seoul, was shot down by a Soviet SU-15 fighter jet over the Sea of Japan hours after passing over Anchorage in Alaska, killing all 269 passengers and crew on board.¹⁶

The Soviet Union initially denied its involvement in the incident, but later claimed to have suspected that the plane had been on a spy mission and that it had violated Soviet airspace. The incident sparked international outrage, with many countries condemning the Soviet Union for its actions. The United States suspended negotiations on arms control and economic cooperation and increased military spending. The incident also led to increased tensions between the United States and the Soviet Union during the final years of the Cold War.¹⁷

The tragedy of Korean Air Lines Flight 007 remains a vital reminder of the dangers of military conflict and the importance of abiding by the framework of international law.

Airspace Violation 2

“The United States Shoots Down Chinese Spy Balloon”. This headline has been on worldwide news and on the front page of U.S. newspapers since January 28^th 2023, but what is the legality of such an event?

A Chinese Balloon entered American airspace after passing through the Canadian border on January of 2023. From an American perspective, the balloon resembles a threat to national security and a breach of airspace jurisdiction. However, the Chinese deny that the balloon was used for surveillance purposes, claiming that the flying object was used only for metrological means. Regardless, the United States intercepted the balloon after it reached the coast of South Carolina and shot it down whilst still being over American territorial waters-well over 18 kilometers-on February 8^th 2023.¹⁸

Under Annex 2 of the Chicago Convention- referred to as Rules of the Air- an untethered balloon used for purposes other than weather detection and operated in the manner prescribed by the appropriate authority, shall not be operated across the jurisdiction of another nation without the appropriate authorization from the nation concerned.¹⁹

The Chinese explicitly stated that the use of military retaliation against the balloon is uncalled for and considered to be an act of aggression against the People’s Republic of China.²⁰

However, one might argue that the United States’ actions were out of place since the American government used to carry out surveillance missions on Russia and the Russians did so as well.²¹ Then why was China’s balloon unwelcome? Well, the answer is simple. In 1992, 35 NATO countries signed and ratified the treaty of Open Skies in the Warsaw Pact, allowing unarmed aerial surveillance flights on consenting nations’ territory. However, the People’s Republic of China did not participate in the treaty, and President Trump withdrew the United States from the treaty back in 2020.²²

Conclusion

Airspace jurisdiction has always been a keen topic in international law. Although the discrepancy regarding the exact vertical measure of the territory remains unanswered, the need for a fortified statute governing all aspects of international airspace law is vital for preserving the rights of nations to protect their sovereignty in the hopes of achieving transnational order and global accord.

References

1. “Convention on International Civil Aviation – Doc 7300   // .” Convention on International Civil Aviation – Doc 7300.
2. Cenciotti, David. “Airspace Violations – Episode 7.” The Aviationist, The Aviationist, 2 Sept. 2019.
3. Cooper, John. “Roman Law and the Maxim ‘Cujus Est Solum’ in International Air Law.” Explorations in Aerospace Law, pp. 54–102.
4. Fujiyama, Emily Wang. “China Is Not Happy the U.S. Shot down Its Balloon.” Time, Time, 6 Feb. 2023.
5. Kareng, Yaya. “International Aviation/Airspace Law an Overview.” International Journal of Law Reconstruction, vol. 4, no. 1, 2020, p. 56.
6. Legal Eagle. “Chinese Spy Balloon: Legal to Shoot down?” YouTube, YouTube, 7 Feb. 2023.
7. May, Andrew, and Daisy Dobrijevic. “The Kármán Line: Where Does Space Begin?” Space.com, Space, 13 Nov. 2022.
8. Oxford University Press. “Cuius Est Solum, Eius Est Usque Ad Coelum Et Ad Inferos.” Oxford Reference.
9. Pratt , Geoffrey N. “AN HISTORICAL SURVEY OF INTERNATIONAL AIR LAW BEFORE THE SECOND WORLD WAR* Peter H. Sand (Germany) Jorge De Sousa Freitas (Brazil) Geoffrey N. Pratt (U.K.).” 5 Mar. 2016.
10. Weinstein, Allen, and Alexander Vassiliev. The Haunted Wood: Soviet Espionage in America–the Stalin Era. Modern Library, 2000.

Footnotes