The evolving role of law in aerospace activities

Dr. Ruwantissa Abeyratne

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This article contains excerpts from a legal lecture of the Royal Aeronautical Society, Montreal Branch, delivered on August 3, 2007 at ICAO Headquarters, Montreal.

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Space law: There are two main issues concerning the evolving role of air law. The first is that the distinction between air law and space law which is continuing to blur. The second is that principles of air law are getting increasingly involved in activities related to military warfare.

Air law and space law are closely inter-related in some areas and both these disciplines have to be viewed in the 21st century within the changing face of international law and politics.

Both air law and space law are disciplines that are grounded on principles of public international law, which is increasingly becoming different from what it was a few decades ago. We no longer think of this area of the law as a set of fixed rules, even if such rules have always been a snapshot of the law as it stands at a given moment.

The second issue "relating to the impact of military warfare on evolving principles of air law is not entirely new, although there has been a growing momentum in recent times.

The use of Surface to Air Missiles (SAMs) and anti-tank rockets by terrorists goes back to 1973. On September 5, 1973 Italian police arrested five Middle-Eastern terrorists armed with SA-7s.

The terrorists had rented an apartment under the flight path to Rome Fumicino Airport and were planning to shoot down an El Al airliner coming in to land at the airport. This arrest proved a considerable embarrassment to Egypt because the SA-7s were later traced back to a batch supplied to it by the Russian Union.

It was alleged that the Egyptian government was supplying some of the missiles to the Libyan army but inexplicably, the SA-7s had been directly rerouted to the terrorists.

This incident also placed the Russian Union in an awkward position because of the possibility that its new missile and its policy of the proxy use of surrogate warfare against democratic states were revealed to the West.

Space Tourism

Space tourism is the term broadly applied to the concept of paying customers travelling beyond Earth's atmosphere. It can be defined to include not only the vehicles that take public passengers into space, but also from the perspective of the "destination" paradigm.

As such, the industry can be envisioned to include not only earth based attractions that simulate the space experience such as space theme parks, space training camps, virtual reality facilities, multi-media interactive games, and telerobotic moon rovers controlled from earth, but also parabolic flight, vertical suborbital flights, orbital flights lasting up to three days, or week long stays at a floating space hotel, including participatory educational, research and entertainment experiences as well as space sports competitions (i.e. space Olympics).

To see the unseen and know the unknown has been the genesis and heritage of human aspiration from early times, resulting in human migration and travel over centuries.

Curiosity of and the arcane desire to conquer the invincible are endemic human traits. Space tourism has the added dimension of making space tourists ambassadors of planet Earth to other celestial territories while at the same time giving them the thrill of crossing the frontiers of the Earth's atmosphere into uncharted territory that is outer space.

It is believed that the sensation of weightlessness and the defeat of the force of gravity are the most alluring to the space tourist. Recent advancements in space technology have enabled the world community to develop safe, reliable and affordable transportation systems for space travel within the next decade or so.

The National Aerospace Laboratory of Japan, in a recent market survey on space tourism has revealed that the price of a return ticket to low Earth orbit should be reduced to between US $ 10,000 to US$ 20,000 per person.

A market of one million passengers per year from the world's two largest markets - North America and Europe - would, at US$ 10,000 per return ticket, yield revenues of US$ 10 billion a year.

This would make space travel by the ordinary or 'average' citizen of the world a common occurrence. It is reported that Enzo Paci, Chief Statistician of the World Tourism Organisation, has conducted a recent study in which he concludes that short pleasure voyages to outer space by tourists will become a reality soon.

Legally speaking, space tourism brings to bear unique considerations, from the status of the space tourist to the conduct expected of such a person and the various liability regimes that might be required to address the package deal concerning the contract of carriage to outer space and amenities provided by the service provider.

Additionally, real concerns of liability, insurance coverage and risk management would have to be allayed before a sustained space tourism programme takes to the heavens.

Analogically, when a serious commercial air transport regime took off after World War II, a dedicated international organisation - the International Civil Aviation Organisation ( ICAO) - was established through international treaty.

The purpose of ICAO was, and continues to be to implement the various provisions of the Convention and its 18 Annexes containing rules and regulations which comprehensively cover all perceivable aspects of international civil aviation.

The question which now arises is whether commercial space travel will require such an organisation driven by an international treaty. It is also pertinent to determine the extent to which the aviation process will apply to a space travel regime.

Argument has already been made to separate the launching activity from outer space activity on the basis that space activities are essentially activities taking place in outer space and that the launching activity is a transportation activity occurring in the earth's airspace.

Should the consequences of future outer space activities have a serious effect on ICAO's aeronautical activities they would have to be studied in depth and appropriate synergies between the aviation and outer space developed, as already discussed in this article.

What is immediately required is a vision both for the aviation community and outer space affairs community, for effective cooperation within their competencies, aims and objectives.

Fundamentally, and at its core, international law was considered in simple terms as the law binding upon States in their relations with one another.

The above mentioned principle was implicitly derived from the basic rule of law as it applies even today, that in the sustained evolution of humanity from troglodytes to computer wizards a central role has always been played by the idea of law the idea that in every civilized society there must be order as against chaos and anarchy which were inimical to a just and stable society.

Therefore, law is the glue which binds the members of a community, whether national or international, together in their adherence to recognised values and standards.

In international law, the principal subjects are nation States, not individual citizens. Public international law applies to relations between States in all their numerous and complex forms, from war to satellites and governs operational policy of many international institutions.

Some of the new and emergent areas of international law govern: the use of radio frequencies; communications; the availability, exploration and exploitation of resources, whether in the sea bed or in outer space; multinational corporations; trade, investment and finance; pollution, in all its forms; international crime and multinational corporations.

Aviation and Military Warfare

On July 5, 2006, nuclear missiles launched by the Democratic People's Republic of Korea (DPRK) over the Pacific Ocean crossed several international air routes over the high seas.

It was further revealed that, when extrapolating the projected paths of some of the missiles, it appeared that they could have interfered with many more air routes, both over Japan and the air space of the North Pacific Ocean.

The consequences of the nuclear missile firings of July 5, 2006 by DPRK brought to bear the hazards and grave dangers such activities pose to civil aviation. Missiles launched by DPRK crossed several international air routes over the high seas.

This was not the first instance of its kind. A similar incident took place on August 31, 1998 in the same vicinity in which North Korean missiles were fired. Where an object propelled by rockets was launched by a North Korea and a part of the object hit the sea in the Pacific Ocean off the coast of Sanriku in north-eastern Japan.

The impact area of the object was in the vicinity of the international airway A590 which is known as composing NOPAC Composite Route System, a trunk route connecting Asia and North America where some 180 flights of various countries fly every day.

From an aeronautical perspective, Annex 11 to the Chicago Convention, which deals with the subject of air traffic services, lays down requirements for coordination of activities that are potentially hazardous to civil aircraft.

Standard 2.17.1 stipulates that arrangements for activities potentially hazardous to civil aircraft, whether over the territory of a State or over the high seas, shall be coordinated with the appropriate air traffic services authorities, such coordination to be effected early enough to permit timely promulgation of information regarding the activities in accordance with the provisions of Annex 15 to the Chicago Convention.

Standard 2.17.2 of Annex 11 explains that the objective of the coordination referred to in the earlier provision shall be to achieve the best arrangements that are calculated to avoid hazards to civil aircraft and minimise interference with the normal operations of aircraft.

The potential explosion of unmanned aerial vehicles (commonly called UAVs) in airspace also brings to bear the need to have a closer look at the civil-military aviation airspace demarcation.

UAVs are commonly associated with military operations in many parts of the world. How would a State feel about sharing airspace over contiguous States with a swarm of UAVs operated by a mix of military/law enforcement and commercial enterprises?

An Unmanned Aerial Vehicle (UAV) is a self-piloted or remotely piloted aircraft that can carry cameras, sensors, communications equipment or other payloads. They have been used to conduct reconnaissance and intelligence-gathering for nearly sixty years (since the 1950s). The future role of the UAV is a more challenging one which, in addition to its current uses will include involvement in combat missions.

The issues and challenges that UAVs bring to civil aviation can be bifurcated into two main areas. The first concerns airworthiness regulations which are required to ensure that a UAV is built, maintained and operated at high standards that ensure the safety of all involved including crew and passengers of manned civilian and military aircraft with which UAVs will share de-segregated airspace as well as persons and property on the ground.

There is currently no international Standards and Recommended Practices (SARPs) adopted under the auspices of the International Civil Aviation Organisation applicable to the UAV and the Unmanned Aircraft System (UAS) although UAVs are increasingly requiring access to all categories of airspace including non segregated airspace.

The second challenge is more far reaching and concerns the possibility of the UAV encroaching on Air Traffic Control (ATC) functions in non segregated airspace.

In doing so, UAVs should not place an added burden and demands on airspace management and the flow of general air traffic within the en-route air space structure which must not be impeded by the presence of UAVs. In this context, the priority would lie in collision avoidance, primarily through effective separation of aircraft by which aircraft could be kept apart by the application of appropriate separation minima.

The two key players in this exercise would be the pilot of the manned aircraft involved and the air navigation service provider who would be jointly or severally liable if a separation minima were compromised.

Even though there are no international regulations applicable to UAVs, it is clear that there are certain rules that States are required to adhere to in order to ensure that UAVs operated under their control do not adversely affect civil air transport.

The various provisions of the Chicago Convention and its Annexes cited in this article as well as the numerous ICAO Assembly resolutions quoted leave no room for doubt that there is an existing regime that addresses the safety of de-segregated air space when it comes to the operation of civil and State aircraft.

This regime derives its legal legitimacy from the principles of State responsibility which are now accepted as binding on States. Article 1 of the Articles of Responsibility of the International Law Commission (ILC) expressly stipulates that every internationally wrongful act entails the international responsibility of a State.

Both issues that are discussed in this article - the blurring of boundaries between air and space law, and the military use of air space and its impact on civilians - bring to bear the importance of an abiding symbiosis between international law and politics.

Firstly, the increasing blend of air and space activity in space tourism and space travel makes the regulatory role of the international community through the various United Nations organs quite compelling.

The use of knowledge obtained through remote sensing and satellite technology becomes critical to aeronautical activity inasmuch as the take off of a commercial space vehicle is grounded on principles of air law. The political angle lies in the collective will of nations to use technological development and knowledge for the benefit of all mankind.

With regard to the threat envisioned in the use of military warfare on civil aviation activity, the same players, i.e., international law and politics, play the same role. Although airspace is common and States have sovereignty over the airspace above their territories, this does not enable them to use such air space arbitrarily.

There are strict principles with regard to aerial military activity and prohibition of the use of military warfare on civilian populations and properties. These must be strictly adhered to in the basis of political consensus.

International law and politics overlap in instances where international disputes may emerge between nations. International law has no legislature. Although the General Assembly of the United Nations exists and functions as a regulator of international policy, being composed of delegates from all member States of the United Nations, its resolutions are generally not binding on member States. Except in certain circumstances.

The United Nations system has no system of courts except for the International Court of Justice, based in The Hague, which can only hear cases between States if both sides to a dispute agree. Even if the parties to a dispute agree to come before the Court, it has no jurisdiction to make sure that its decision is enforced or followed.

In such an environment, an Organisation such as ICAO, with its strong mediatory history could prove to be invaluable.

(The writer is Coordinator, Air Transport Programmes International Civil Aviation Organisation Montreal, Canada.)