In order to address the casually construed analogies between International Space Law and the International Law in general, this paper make analysis and reference is made to the outer space treaty that comprises of fundamental principle of international space law. It is true that international space law is intricately and extensively linked to the General International Law but by its very nature is distinct, any direct borrowing and application of certain principles from the latter to international space law would lead to nothing but ambiguity and inconsistency in interpretation. This article examine description of Air and Space Law, selection of new laws, new amendment in air and space Law.
Technologies never stop challenging lawyers abilities to adapt themselves and the law to new and unforeseen situation especially so regard to activities taking place up in the sky and beyond. There are certain formulation in our country related to Air and Space Law.
First is a law for activities that take place in air is formulated.
Second is a law from outer space come into orientation.
The 100-year long history of space law is broadly international in character, where a large part of air law is either international law or international uniform law. Space (outer space) law was an idea without shape or substance for more than 20 years and it was first mentioned in a journal published in Paris in 1910.
Development of space law during the 20th century evolved through four interrelated phases:
1.) Development of concepts of space law earlier than Sputnik-1.
2.) Clarification and adoption of basic applicable laws.
3.) The increasing uses of international and national space laws. In addition, regulations to manage such uses, which has been a process starting since the late 1950s.
4.) The regulation of human activities beyond the atmosphere, including the eventual development of law to manage settlements and societies existing off the Earth Regulation of such activities in space has only recently been seriously addressed.
The law relating to air traffic has steadily developed in US and other developed countries right from the time when the first elementary aircrafts were introduced in these countries. One of the major reasons of globalization and vanishing of boundaries between distant continents has been the fact that air was developed as a medium of travel in the beginning of last century. While earlier, it was unthinkable that a person could travel from Asia to Europe in a matter of days with conventional means of transport, airplanes made it possible to navigate across high seas in a matter of few hours.
The Warsaw Convention of 1929, amended by the Hague Protocol of 1955, is widely accepted and governs the liability of air carriers with respect to the international carriage by air of passengers, baggage, and cargo. Another important aspect of air law is concerned with the suppression of unlawful seizure of aircraft (the Hague Convention of 1970) offences and certain other acts committed on board aircraft (the Tokyo Convention of 1963), and the suppression of unlawful acts against the safety of civil aviation (the Montréal
Convention of 1971). Each of these conventions has been accepted by any states, including Canada.
There are two parts of air law:
Law relating to Aerial Navigation and
Law relating to Aircraft Hijacking
LAW RELATING TO AERIAL NAVIGATION
Modern aircraft routinely traverse international boundaries for private and commercial purposes. While the safety and ease of air transportation make international travel simpler, it sometimes complicates things when it comes to legal questions. For example if an aircraft that belongs to a US carrier is involved in an accident in France, do US or French laws apply? How can an aircraft with South African registry gain access to airports in Mexico. Over time, two distinct bodies of international aviation law have developed—public and private international aviation law.
Some Important Concepts and Bodies Regarding Air Law
(a) The Right to Fly
The Chicago Conference, 1944 had intended to provide rights for aircraft of the contracting states of Chicago Convention, whether engaged in scheduled air services or in non-scheduled flights, to fly into one another‘s territories. Some compromise was reached for non- scheduled flights, 43 which in practice, however, has been honored more in its breach than its observance. This fact has been manifested in the failure to reach agreement on a multilateral exchange of rights for scheduled international air services by providing that they can be operated into a contracting State‘s territory only with the latter‘s authorization. The privilege covered by such authorization is often divided, in the jargon of the industry, into a number of so-called freedoms of the air. The first two such ―freedoms‖ consist of transit right‖, namely the right of transit without landing, and that of transit with stops only for technical purposes.
b) Airspace Sovereignty
The airspace sovereignty reaffirms the rule of general international law that every State has complete and exclusive sovereignty over the airspace above its territory. The principle of sovereignty over airspace is the point of departure for regulating most problems of international air law, for example, departure, and entry of aircraft, passengers and cargo, crew and jurisdiction over them for regulatory purposes or for the application and enforcement of both, general criminal law and special rules for the protection of international civil aviation.
Aircrafts are defined in the Standards adopted by the Council of the International Civil Aviation Organization (lCAO) as any machines that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth‘s surface, air cushion vehicles, such as hovercraft and ground effect machines, are not classified as aircraft. Aircraft may be lighter- than air (balloon) and power-driven (airship) or heavier-than-air (glider). The most common aircraft is an airplane a power-driven heavier than-air aircraft, deriving its lift in flight chiefly from aerodynamic reactions on surfaces, which remain, fixed under given conditions of flight. Helicopters are heavier-than-air aircraft supported in flight chiefly by the reactions of the air on one or more power-driven rotors on vertical axes.
d) Trial Procedure
Another important question that arises in the context of international air transportation is the place for a trial. Article provides the four possible places where a plaintiff may bring an action against an air carrier are the following:
- The place where the air carrier is domiciled.
- The primary place of business for the air carrier.
- The country where the contract of travel was made (as long as the air
carrier does business in that country)
The origin of space law can be traced after the launching of Sputnik I on 4 October 1957 by USSR, it was the first artificial Earth satellite. Since that time, the legal regulation of space and outer-space activities has been largely centered in the UN Committee on the Peaceful Uses or (scientific uses) of Outer Space.
The United Nations has played commendable role in enacting space law. Presently, following five international treaties or conventions are governing outer space.
a) Outer Space Treaty, 1967
Among all UN treaties, the most important Treaty is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other celestial bodies 1967, also known as Outer Space Treaty. The commendable feature of this treaty is that it clearly provided that outer space must be used for peaceful purposes. Apart from this, it has given certain important principles for activities in space.
b) Rescue Agreement, 1967
Another important Agreement relative to Outer Space Law is the Agreement on Rescue and Return of Astronauts and Space Objects, 1968 also known as Rescue Agreement. It is mainly concerned with the safety of astronauts and other scientists. Significantly, this treaty has also given importance to keep the space free of all used space objects and waste material and to bring them back to Earth for proper disposal.
c) Liability Convention, 1971
On November 29, 1971, the United Nationss General Assembly endorsed the Convention on International Liability for Damage Caused by Space Objects. This convention has played significant role in fixing the liability of launching state for any accident of the space object incurred in the space.
d) Registration Convention, 1975
It was adopted in 1975 and it came into force in 1976 with main objective to encourage Member States conducting space launches to register the space objects to be launched.
e) The Moon Agreement, 1979
Adopted in 1979 and came into force in July 1984, the Agreement reaffirms and elaborates, on many of the provisions of the OST and states that outer space including moon and celestial bodies should be used exclusively for peaceful purposes and for science purposes. An important principle laid down in this agreement was that no state can claim sovereignty over moon.
LIBILITY UNDER AIR AND SPACE LAW
Regarding air navigation, carrier is liable for death or damage done to the passenger or his cargo. The Warsaw Convention, 1929 provides that an international air carrier will be liable for a passenger‘s death or injury. The Montreal Convention modified the Warsaw Convention by defining baggage as both checked and unchecked (carry-on) baggage and accident that takes place when a passenger is A) on an aircraft, B) boarding an aircraft, or c) disembarking an airplane. Article 18 imposes liability on an air carrier for baggage that is checked and goods that are damaged while in the care and custody of the air carrier. Exposure to liability for baggage was expanded in states that an air carrier is liable for any damages resulting from delays of passengers, cargo, or baggage. While under Warsaw convention straightforward in application, the use of the word accident‖ to trigger liability and it has sometimes spawned conflicting views. In a 1985 case, the US Supreme Court defined the term accident as an unexpected or unusual event or occurrence that is external to the passenger.
However, the Montreal Convention, 1999 provides provisions for liability of the Carrier and Extent of compensation for damage.
In case of aircraft hijacking criminal liability arises and the general principles of international criminal laws such as Nullum crime sine lege (no crime without law) and nulla poena sine praevia lege poenali are general principles of criminal law (no punishment without a pre-existing penal law) are applicable. In this regards apart form earlier Conventions, the Montreal Convention, 1999 and the Beijing Convnetion and Protocol contains significant provisions.
Considering liability under space law, important principle is that launching state is responsible for any damage caused by the launched object. Undoubtedly the five space treaties98, contain provisions regarding liability of the launching state but the Liability Convention, 1971 is very important in this regard. A detailed study of liability under air and space law.
HYPOTHESIS OF THE STUDY
Important hypotheses of the study are:
- International law does not provide immediate measure to protect
territorial airspace and to cease the violation;
- The freedom of the air‘, similar to the sovereignty cannot be considered absolute and unrestricted under international law.
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