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THE DELIMITATION OF AIR AND SPACE IN THE CONTEXT OF AEROSPACE VEHICLES AND THE USE OF FORCE BY: PRAKASH CHAND
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THE
DELIMITATION OF AIR AND SPACE IN THE CONTEXT OF AEROSPACE VEHICLES
AND THE USE OF FORCE
SUBMITTED
BY: PRAKASH CHAND
BCOM LLB
20191BCL0012
Presidency
University
School Of
Law
Abstract
Since the beginning of the space era, there has been ongoing disagreement
on the boundaries of airspace and outer space. The boundary between their
different legal systems will be put to the test as hybrid aerospace vehicles
that can move between the two zones and operate in them are developed. And this
test might not involve a discussion of appropriate culpability regimes in a
courtroom after the fact, but rather a decision made in real time in a military
operations center on whether to shoot down an aerospace vehicle that has
violated a country’s airspace.One recent instance of the sensitivity
surrounding violations of territorial integrity is the shooting down of a
Russian bomber by Turkish fighters. In the absence of a consensus among the
states over the legal framework guiding the transfer from the atmosphere to
space, this article examines the applicable legislation. This article examines
delimitation via the prism of the potential use of force and state security
interests, whereas previous works have done so from the premise of liability,
air and space traffic management, or other views. It starts by dissecting air
and space into their fundamental, or black-and-white, components, paying close
attention to their legal frameworks and the distinction between government- and
privately-owned vehicles. It then uses a conservative (or positivist)
perspective and a commensurability analysis to look at the space between the
two regimes. These methods of analysis show that, from a use of force and
security standpoint, the lowest satellite orbit should be regarded as the legal
threshold between the airspace and outer space regimes within the current legal
framework.
Introduction
This article examines the
implications of flying vehicles operating in controlled, intentional manners in
both airspace and outer space, focusing on the potential use of force by states
against such vehicles. The author argues that the current legal structure for
such vehicles should be viewed as an airspace regime for operations below low
orbit, triggering the rules of state territorial sovereignty. Overflight by
such vehicles is considered a violation of territorial integrity, potentially
leading to actions under international law, including force. The potential for
force is even greater for overflight by state or military vehicles, which enjoy
more limited rights of passage under an airspace regime. The author argues that
the assertion that airspace is the appropriate regime is principally one by
default. The author argues that outer space law is a specific and limited
deviation from the baseline position that states can assert rights of
territorial sovereignty as high as possible. If an area cannot be considered
"outer space," it must be considered part of the default, or
baseline: sovereign airspace. The work is divided into three substantive
chapters, focusing on the baselines and defaults that should guide state
actions, with a focus on a known, primary concern for states: their sovereignty
and national security.
A Framework For
Analysis: Aerospace Vehicles And The Use Of Force
Aerospace Vehicles And Possible Applications
This chapter discusses the nature of
airspace vehicles, their use of force, and the analytical framework used to
demonstrate the central thesis that the zone encompassing the unclear upper
edge of airspace and the unclear lower edge of outer space should be considered
an airspace regime, particularly in relation to the use of force against
vehicles operating in this zone.
Aerospace vehicles have been
considered a potential reality since the 1950s, with the U.S. Space Shuttle
being the first to take flight in 1981. Spaceplanes that can execute
single-stage take-offs more like a traditional airplane are also being pursued,
though with far less success to date.[1]
The current U.S. Air Force X-37B, presently a remotely piloted vehicle,
operates in a similar fashion to the Space Shuttle, with an initial rocket
launch, independent operation, and then glide return to Earth. However, if
combined with a propulsion system such as the SABRE (Synergetic Air-Breathing
Rocket Engine), currently being designed and tested by Reaction Engines, Ltd.,
the stage could be set for a truly full-functional hybrid aerospace vehicle,
transcending the traditional definitions of airplane and space-rocket.
The potential applications of this
new technology are nearly limitless, with the focus currently on suborbital
tourism and adventure, but the opportunities for travel, scientific research,
telecommunications, or a host of other applications abound. However, this
potential is not without concerns—particularly when governments (and frequently
the military departments of governments) are executing the operations. Distrust
of other states is simply a part of world affairs. One contemporary example of
this is the X-37B experimental spaceplane discussed above. Swiss Space Systems (S3), and a number of
other companies are developing similar vehicles that can operate in both air
and space for commercial (or government) reasons. This technology is not
exclusive to the United States or to military research.
Two scenarios demonstrate the
potential points of contention for actions conducted in aerospace based on
emerging technologies. First, the armed military aircraft vehicles may conduct
provocative territory invasions on purpose. Such activities would constitute
deliberate, provocative acts, presumably as an extension of state foreign
policy goals. Such actions occur in the current state of international affairs.
For instance, the Russian military has frequently tested the boundaries of
North Atlantic Treaty Organization (NATO) member-nation airspace, seeming to
gauge the response (both tactical and political) and to make a political
statement. Counter to this, the United States has a policy to test claims of
territory beyond the perceived limits of international law. The tension between
assertions of sovereignty and those eager to test it can have dangerous
results.
In the above scenarios, if the
aerospace vehicles are state—and particularly military—craft, the key factors
in determining whether the use of force may be acceptable are the questions of
where the vehicles are operating and whether the vehicles are encroaching on
sovereign territory.[2] If
aerospace vehicles are operating in a state’s sovereign territory, force may be
an option to remedy the violation. Second, whether the craft in question is a
civil or state vehicle will also affect the use of force analysis.[3]
This argument analyzes the potential
for force using a rubric. It’s not a study of the law of war or armed conflict,
but rather uses existing law of war principles to develop the delimitation
issue. However, some important comments on the use of force under international
law are provided.
The law of war can be divided into
two disciplines: jus ad bellum, the law of going to war, and jus in bello, the
law applied during the conflict.[4]
These subfields are distinct and independent, and even if a prospective target
meets all jus in bello criteria, it does not justify the use of force without
an existing conflict or a recognized jus ad bellum mechanism.
The primary legal triggers for conflict
under jus ad bellum are self-defense and collective action through the United
Nations (U.N.) Security Council, under Chapter VII of the U.N. Charter.
Self-defense is the most likely jus ad bellum issue, and can be invoked either
in the event of an “armed attack” pursuant to Article 51 of the U.N. Charter or
as a matter of customary international law where a “‘necessity of self-defense
is instant, overwhelming, leaving no choice of means, and no moment for
deliberation.”
The scope of a state's right to self-defense
in response to an attack varies in the assertions of legal scholars and state
practitioners. Murphy identifies three main self-defense constructs: “self-defense”
refers to the use of armed coercion by a state against another state in
response to a prior use of armed coercion by the other state or by a non-state
actor operating from that other state; “[Anticipatory self-defense” refers to
the use of armed coercion by a state to halt an imminent act of armed coercion
by another state; and “reemptive self-defense” refers to the use of armed
coercion by a state to prevent another state from pursuing a particular course
of action that is not yet directly threatening but could result at some future
point in an act of armed coercion against the first state.[5]
A Broad Notion of Force
This work explores the use of force
as an impetus to action and in response to offensive overflight. Force lies at
the intersection of politics and belligerent actions, with varying degrees of
action, including force or the threat thereof. As politics change, non-lethal
technologies emerge, and state practice develops, the spectrum of force is
ever-changing. Force can include kinetic actions with missiles, bombs, or
sophisticated antisatellite weapons, but in the modern technological era, responsive
actions may include cyber attacks, jamming, and other acts designed to
counteract offensive incursions or overflights.[6]
Force may be directed at aerospace vehicles, but it doesn’t necessarily amount
to an “armed attack.” Brierly noted that war is only the most extreme form of
appeal to force, and certain measures of coercion by violent means, not
amounting to war, must also be fitted into the international system. The
general guiding principles are jus ad bellum-appropriate uses of force, but the
threat of force broadly and contemplation of what may trigger a forceful
response from one state should also be considered.
Why Territorial
Sovereignty Matters
Territorial sovereignty is a crucial
aspect of international relations, as stated in Article 2(4) of the U.N.
Charter. States are bound by their borders, and threats to territory are not
taken lightly. In the modern world, sovereignty and territory are permanently
linked, with sovereign equality being a cornerstone of international relations.
The degree to which states are inclined to protect territory also demonstrates
its importance.[7] More
than half of the nine contentious cases that culminated at the ICJ in 2013 and
2014 involved delimitation of boundaries and access to the sea. States also
protect sovereign territory in the overflight context through the shoot-down of
encroaching craft.
Article 2(4) does not provide a clear
remedy for a violation of territorial integrity, but a violation of sovereignty
may open the door to force. In some states’ analyses, the violation of
territorial sovereignty is a potential indicator of a threat tantamount to an
armed attack, warranting the use of force in self-defense. In assessing the
propriety of use of force or the likelihood of the use of force in the event of
an overflight by an aircraft or space craft, whether the craft is in sovereign
territory is an essential factor.
Why State Versus Civilian
Vehicles Matters
The status of a craft, whether
civilian or state, can significantly influence its use of force. The Chicago
Convention, Article 3bis, prohibits the use of force against civilian aircraft
for territorial incursions, but this only applies in times of peace and does
not prejudice states in self-defense. Three of the four core principles of the
LOAC ensure the protection of civilians and civilian objects, including
civilian aircraft or spacecraft.[8] If
an object is civilian, it should not be targeted except in unique
circumstances. Military and state objects do not enjoy such protections, and
their destruction is permissible once the legal analysis reaches the jus in
bello stage. The distinction between a craft as a state vehicle or civilian one
can also impact its perceived threat under jus ad bellum. A civilian craft
operating for its own interests is typically less threatening than a state
vehicle, particularly military, which may be armed and executing the will of
another state. Therefore, the status of a craft significantly impacts its use
of force, both in terms of jus ad bellum and jus in bello.
This article proposes a
sovereignty-based airspace legal regime for various scenarios and activities
below orbit. The analysis is divided into two parts: first, examining the
physical, geographic, and legal distinctions between airspace and outer space,
and second, introducing the less settled zone between the two domains. The
author argues that there are settled minimum standards for each domain, with
sovereignty and state versus civil craft being the primary factors for the use
of force.[9]
The article also Introduces the less
settled zone between the two domains, referred to as “gray space,” reflecting
the perceived murkiness of its borders. The delimitation problem should be
resolved in the context of this lack of consensus. The argument takes a
30,000-kilometer view to examine both the settled zones of airspace and outer
space in their entirety.
The author uses a positivists
approach, arguing that the default position for states is an assertion of
sovereignty to its greatest limits of reason. Outer space is an exception to
the rule, but it must be narrowly construed. The article also discusses the
potential commensurability of the airspace and outer space regimes, stating
that they fall on a consistent continuum designed to maximize state power and
avoid a third world war. This supports the finding that airspace (and
sovereignty) is the baseline or default regime and should be applied to
emerging activities that do not clearly fall under an outer space regime.
The debate over the boundaries of
airspace and outer space is a longstanding issue, predating the majority of
international outer space law. The Paris Convention and Chicago Convention, two
public international air law documents, did not define the vertical limit of
airspace. Instead, the International Civil Aviation Organization (ICAO) and the
Outer Space Treaty focus on managing international civil aviation within
airspace. The general rules for operating in airspace and outer space are
black-and-white, but the scope of these legal regimes is more gray. [10]This
chapter discusses the fundamental aspects of space and air domains, focusing on
state sovereignty and the distinction between state and civilian craft. The
goal is to establish accepted definitions for both airspace and outer space
law, with clear legal rules relevant to force application. Airspace is
addressed first, followed by outer space.[11]
The third section briefly addresses the legal gray area between the
well-defined portions of these two regimes, demonstrating a degree of possible
legal uncertainty. However, this discussion highlights the fact that there are
settled areas of law from which the discussion of using force against vehicles
operating between the zones will proceed.
The physical and geographical
characteristics of the area known as airspace, as well as the activities of
airplanes, define it. The outcome is a generally acknowledged region that is at
least 21 kilometers in size.
70,500 feet, or ters. States are able
to exert exclusive authority over the airspace within their borders. This claim
of con-However, control is constrained by a number of agreements, chief among
them the Chicago Convention, which makes a distinction between private
airplanes. The characteristics of the airspace, the function of sovereignty
throughout, as well as the significance of the difference between In this part,
the differences betpween state and civil aircraft are covered.
The Physical Nature of Airspace:
Airspace is the space where air is
normally found and is identical with atmospheric space. The legal regime for
airspace is primarily designed for the flight of aircraft, which include
airplanes, gliders, balloons, helicopters, and other lighter- and
heavier-than-air vehicles.[12]
The definition of aircraft is not entirely static, and ICAO can modify the
Annexs to clarify the vehicles that do and do not fall under its purview.
The required "reactions of the air
for aircraft have a vertical limit, as the static air pressure above the wing
decreases while it remains substantially stable below it due to the shape of
the wing. This lift effect requires adequate density of the air, which
decreases as altitude rises. As altitude rises, the air thins and engines
cannot produce adequate momentum, making it unlikely that an aircraft will ever
fly above 60 kilometers with an air-breathing engine.
The effective vertical geo-graphic
range of current aircraft must be discussed. At the dawn of aviation, planes
such as those operated by the Wright Brothers or Alberto Santos-Dumont flew
only a few feet off the ground but are considered aircraft. On the upper tier
of aircraft operation are specialized military aircraft such as the U-2 and
SR-71 that fly at altitudes up to 85,000 feet. Civilian aircraft typically
operate with a ceiling of approximately 40,000 feet but a high end of 51,000
feet.
The
Legal Nature of Airspace: Sovereign Territory
The legal nature of airspace has a
long history, with states asserting sovereignty over their airspace since 1919.
The Chicago Convention, for example, recognizes that every state has complete
and exclusive sovereignty over the airspace above its territory. This
sovereignty extends to land areas and territorial waters adjacent to the state,
which is inherited from Roman law. The 1982 United Nations Convention on the
Law of the Sea (UNCLOS) further defines and limits the horizontal extent of
sovereignty by way of rights of passage for aircraft. Littoral states cannot
assert full air sovereignty over international straits or archipelagic sea
lanes, and the broader exception of innocent passage through territorial seas
does not apply to aircraft. Airspace sovereignty can be limited under unique
circumstances such as distress. While China, India, Japan, Russia, and other
space-faring states have ratified UNCLOS, the United States and Kazakhstan have
not. The exclusive sovereignty of states over their airspace is endorsed
throughout the Chicago Convention, with Articles 6 (Scheduled air services) and
7 (Cabotage) confirming that international carriers may not operate in or over
a state without that state’s permission.
The
Legal Nature of Airspace: Civil and State Aircraft
The Chicago Convention recognizes
sovereignty over airspace, but it has exceptions for non-scheduled aircraft and
non-traffic purposes. Article 5 allows non-scheduled aircraft to make non-stop
flights across a state’s territory without prior permission. Article 6
establishes bilateral and multilateral agreements for entry, stoppage, and
international air services.[13]
However, the convention’s exemptions and exclusions apply only to civil
aircraft, not state craft. Article 3 distinguishes between civil and state
aircraft, stating that the convention applies only to civil aircraft and not
state craft.[14] This
departure from the Paris Convention further subdivided state craft into
military and aircraft exclusively employed in state service.[15]
State vehicles enjoy less freedom of movement over territorial airspace, with
specific rights requiring explicit negotiation.[16]
Airspace:
In conclusion, there is a
fundamental, binary understanding of airspace that consists of the range of
operation, at the very least Of airplanes to a minimum of 21,500 feet (70,500
feet). In the air, States that are adjacent to one another may claim
territorial sovereignty and Ought to be acknowledged by other states. Although
overflight by civilian aircraft is permitted by the Chicago Convention, the
airspace regime Demonstrates no such regard for statecraft—they are different
from Private airplanes. This implies that there are few alternatives for
overflight if A region is considered to be airspace, and aircraft (or other)
that fly overhead face the risk of invading another person’s territory and
inciting hostility.
Conclusion
The delimitation debate in the lex
lata suggests that sovereignty extends as high as possible until it is clearly
capped, with the lowest definitive reach of the outer space regime being orbit.
In cases of doubt about state sovereignty, it should be assumed that such
sovereignty exists. This work has pulled airspace and outer space apart to
assess them independently, including their nature and accompanying legal
regimes. It then attempted to put them back together to demonstrate how the
regimes fit together. The logical conclusion is that the boundary between air
and space is at orbit.
This is not a normative prescription
for what regime is best for aerospace; it is merely an argument for what is. It
does not prejudice any arguments for creating a different line or even a unique
sui generis aerospace zone. It is also not meant to suggest that there are not
difficulties with the present regulation of the zone, particularly the
potential inapplicability of ICAO rules to aerospace vehicles (particularly
state vehicles).
The conclusion should generally be
regarded as a spatialist position on delimitation. However, spatial and
functional lines are blurred in both orbit and in aerospace, so this is not a
distinction dealt with in great detail here. In this author's view, a line in
space provides the greatest degree of clarity.[17]
If an operator deciding whether to
fire on an aerospace vehicle has to guess whether sovereignty applies, the
craft is operating in an area of no consensus. If a mission planner is
contemplating a flight path through an area that may (legitimately) be
considered sovereign, this similarly is an area of no consensus. If in genuine
doubt, the craft should be construed as being in sovereign territory.
Satellite vehicles present a unique
new problem for the assertion of sovereignty. Just because there is a new
threat to territorial integrity does not mean that such sovereignty is
diminished. Certainly, a convention or treaty could resolve the issue, and
perhaps a formal passage regime for aerospace vehicles could be created by
states[18].
However, it is also possible that states will favor their sovereignty over free
use of a new application.
Until that happens, states must
operate under the extant law and its present line, created by the disposition
of states towards sovereignty and checked only by their interest in allowing
freedom of motion in orbit and beyond.
[1]
Section II.D.2 infra for more discussion of this term.
[2] Roy Houchin, Us Hypersonic
Research And Development
[3] SPACE SECURITY INDEX 2011
[4] Protocol Additional to the Geneva
Conventions Of 12 August 1949
[5] U.N. Charter arts. 41–42 (allowing
the Security Council to act, with force if Necessary, to maintain or secure
international peace and security)
[6] U.N. Charter Article 2(4) Ruys
also notes the differences in positon among some states as to whether all force
constitutes an “armed Attack” triggering Article 51 of the U.N. Charter:
[7] U.N. Charter art. 2(1)(“The
Organization is based on the principle of the Sovereign equality of all its
Members.”)
[8] Protocol Relating to an Amendment
to the Convention on International Civil Aviation art. May 10, 1984, ICAO Doc.
9436
[9] Article 51 of the U.N. Charter as
A deviation from Article 2(4), the general rule
[10] Convention on International Civil
Aviation, , art. 44 (listing the Objectives of ICAO, which generally focus on safety
and development of civil Aviation)
[11] Outer Space Treaty
[12] Convention on International Civil
Aviation,annex 7. ThisDefinition has been in effect since 1968
[13] Convention on International Civil
Aviation, art. 25 (aircraft In distress).
[14] Convention on International Civil
Aviation, art. 1
[15] Convention on International Civil
Aviation, art. 3
[16] Paris Convention, art. 30 and, 32
[17] THE NEED FOR AN INTEGRATED
REGULATORY REGIME FOR AVIATION AND SPACE.
[18] Echoing the Convention on the Territorial
Sea and the Contiguous Zone’s Article 14(6)
Article Information
THE DELIMITATION OF AIR AND SPACE IN THE CONTEXT OF AEROSPACE VEHICLES AND THE USE OF FORCE BY: PRAKASH CHAND
Authors: PRAKASH CHAND
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/16
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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