Air Law and Space Law

Air law and space law are separate and distinct branches of law, although they are occasionally treated as one ("Aerospace Law"). Air law, the older of the 2, is the body of public and private law, both national and international, that regulates aeronautical activities and other uses of airspace. Space law, on the other hand, regulates activities of states and private entities in outer space, primarily the use of satellites. The essential difference between air law and space law stems from the legal status of airspace and of outer space. Whereas airspace, except over the high seas and Antarctica, is under the sovereignty of subjacent states, outer space is governed by the regime of freedom. The question of boundaries between outer space and airspace is awaiting international agreement; it is virtually certain, however, that the boundary will not be placed higher than 100 km above sea level.

Space Law
The origin of space law can be traced to the launching on 4 October 1957 of Sputnik I, the first artificial Earth satellite. Since that time the legal regulation of outer-space activities has been largely centered in the UN Committee on the Peaceful Uses of Outer Space. The bulk of space law consists of norms incorporated in 5 multilateral treaties. The most important is 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 (also known as the Outer Space Treaty). The major principles of the treaty are freedom of access to, and use of, outer space; prohibition against national claims to sovereignty in any part of outer space; and a ban on the placing of weapons of mass destruction anywhere in outer space.

Air Law
In Canada legal regulation of air navigation is the exclusive competence of Parliament. The major, relevant legislation includes the Aeronautics Act (the cornerstone of the Canadian civil aviation regulatory system); the National Transportation Act (setting up the Canadian Transport Commission as the principal organ for the economic regulation of air transport); the Carriage by Air Act (governing the liability of air carriers relating to international carriage by air).

Because much air navigation takes place internationally, many legal norms governing the technical aspects of air navigation have been developed internationally and are implemented by national legislation. The International Civil Aviation Organization (ICAO), headquartered in Montréal, was established pursuant to the Convention on International Civil Aviation (Chicago, Ill, 1944). ICAO has a membership of 184 states. The exchange of commercial rights in international air transport is regulated mainly by hundreds of bilateral agreements, along with the multilateral International Air Services Transit Agreement of 1944 and certain provisions of the Chicago Convention.

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. Canada is a party to the amended convention and has implemented it through the Carriage by Air Act. The rules of Canadian domestic law govern air carriers' liability relating to carriage by air in Canada not covered by the Carriage by Air Act and claims for damage to third parties caused, for example, through aerial collisions, excessive noise and aerial spraying.

Another important aspect of air law is concerned with offences and certain other acts committed on board aircraft (the Tokyo Convention of 1963), the suppression of unlawful seizure of aircraft (the Hague Convention of 1970) 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 many states, including Canada.

The 1 September 1983 destruction, off the Sea of Japan, by a Soviet military aircraft of a Korean civil airliner, with heavy loss of life, led to the adoption in May 1984 by ICAO member states of an amendment to the Chicago Convention (Art. 3-bis) designed to prevent similar attacks on civil aircraft straying into foreign airspace without authorization. In Canada, McGill University in Montréal operates the Institute of Air and Space Law, a unique academic institution for advanced research and study in air and space law.

Author IVAN A. VLASIC

Suggested Reading
John Holding, Canadian Guide to International Air Carriage (2005).