Air and Space Law: International Regulations in the 21st Century

Historical Background of Air and Space Law

The fundamental principle of international air law holds that the aerial region above a state's territory is under that government's sovereign control (Cheng, 2019; Hugin, 1951). However, airspace over the open seas was considered free, and this ambiguity generated a need for formal treaties, such as the Paris Convention on the Regulation of Aerial Navigation (1919) and the Chicago Convention on International Civil Aviation (1944) (Space Legal Issues, 2022; ICAO, n.d.).

The need for clear air law grew more urgent during the First and Second World Wars. Military aircraft crossing from one state's airspace into another raised fears of enemy intrusion (Sand, Freitas, and Pratt, 1960–61). Germany's use of an air balloon over French territory caused alarm over national security and strained international relations (Kareng, 2020). Common law jurisdictions addressed related disputes throughout the 19th century. Rules had to be devised with care so that air navigation would not itself become a cause for war. Numerous decrees, doctrines, documents, court decisions, and conferences were required to define the limits of airspace and establish a framework for civil aviation (Mosteshar, 2019; Kleinberg, 2007).

Uniformity in international aviation law was lacking in the early period. The International Air Transport Association (IATA) conference of 1919 helped address this, eventually leading to the Warsaw Convention of 1929 (Saljooqi, 1967; Beumont, 1955). Progress continued with the signing of the Chicago Convention in 1944, which was deemed especially necessary in the context of the Second World War. Gradually, further international air law contributions came from the British Commonwealth, the United States, the Communist Bloc, and Japan (Kareng, 2020).

International Relations Theories

Conventionally, two major theories frame the study of international relations (IR): liberalism and realism (Gold and McGlinchey, 2017). Under the liberalism theory of IR, international affairs are viewed as capable of reaching a state of peace, in which the primary human desire for harmony between nations is not only anticipated but also achievable. Immanuel Kant argued that the more nations embrace liberal governance, the greater the prospects for global peace (Simpson, 2018).

The realism theory of IR, by contrast, is skeptical about enduring social order and peace, in part because the theory's basic ideas emerged from the devastating experience of the Second World War. Thomas Hobbes is a central figure in realist thought; he proposed a "social contract" to maintain a workable state of nature between rulers and their peoples (Gallarotti, 2013). Realism holds that conflict is inherent in human nature — differing interests and opinions inevitably create friction, and when political power is involved, such friction can escalate to war (Finucane, 2013).

Air Law and Space Law Frameworks

Air and space laws were developed to protect territories whose airspace is used by other parties. Air law is grounded in the principle that complete sovereignty over a state's airspace belongs exclusively to that government. Article 1 of the relevant framework states that international flights wishing to enter another state's airspace must first obtain permission from that government and receive authorization for their scheduled route. States typically entered formal bilateral agreements to permit one another's aircraft to pass through their airspace.

Space law emerged in the context of competition primarily between the United States and the USSR. Article 1 of the Outer Space Treaty stipulates that the exploration of outer space shall be carried out for the benefit and in the interests of all states, with the aim of serving all of humankind — not the exclusive interests of any particular nation. The precise boundaries and interpretations of this principle remain contested. Nevertheless, the Treaty is clear that space is open for exploration on an equal basis for all (University, 2012).