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Sovereignty and jurisdiction in the airspace and outer space : legal criteria for spatial delimitation

Oduntan, Olugbenga Toluwaleke (2002) Sovereignty and jurisdiction in the airspace and outer space : legal criteria for spatial delimitation. Doctor of Philosophy (PhD) thesis, University of Kent. (KAR id:94559)

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Abstract

Sovereignty and jurisdiction are legal doctrines of a complex nature, which have been subject to differing interpretations by scholars in legal literature. The relationship between the two with respect to all the manifestations of territory has also not been fully worked out by lawyers. The tridimensionality of state territory recognised under customary international law subsists till the present. The idea of sovereignty and jurisdiction over the airspace has developed over the centuries and is even older then the history of human flight. Under prevailing treaties on air law particularly the Chicago Convention (1944) the principle of complete and exclusive sovereignty over the superincumbent airspace is unassailable. Airspace sovereignty is delimited ratione loci in respect of the space above national territories and not ratione materiae in respect of the air, which may at any given time, be filling this space. Quasi-territorial jurisdiction and personal jurisdiction may, however, be exercised by other states with respect to aircraft, spacecraft and their citizens which they have granted legal personality even when found in foreign airspace. However, unsettled jurisdictional problems persist in relation to control over aircraft, criminal jurisdiction, and airspace trespass

While national sovereignty and exclusive jurisdiction can be exercised over the airspace relating to all parts of national territory, sovereignty is completely inapplicable to outer space and its celestial bodies. Certain comparable jurisdictional competencies found in air law are also exercisable in outer space in relation to spacecraft, scientific stations, instrumentalities and personnel. Central to the discussion of the application of jurisdiction and control in outer space is the concept of ‘common heritage of mankind’ -a political and legal doctrine, which reinforces outer space as the province of mankind. This creates ideological problems among lawyers and statesmen particularly across the developing and developed states divide regarding the operation of familiar notions of ownership and possession.

The legal distinction between airspace and outer space and the two bodies of law governing them is not only factual but also ultimately very necessary. In spite of the acknowledged commercial, strategic, political and environmental importance of air and space activities, the province of the applicable laws have not been determined. What remains to be done is to determine where in spatial terms exclusive sovereignty ends and where the province of all mankind begins. Indeed the determination of a demarcation line is primarily of legal significance. Views and literature on the subject abound; however, no satisfactory consensus has been reached. It is from this medley of ideas that the thesis attempts to distil and formulate legal criteria for the resolution of the spatial delimitation dispute.

Item Type: Thesis (Doctor of Philosophy (PhD))
Additional information: This thesis has been digitised by EThOS, the British Library digitisation service, for purposes of preservation and dissemination. It was uploaded to KAR on 25 April 2022 in order to hold its content and record within University of Kent systems. It is available Open Access using a Creative Commons Attribution, Non-commercial, No Derivatives (https://creativecommons.org/licenses/by-nc-nd/4.0/) licence so that the thesis and its author, can benefit from opportunities for increased readership and citation. This was done in line with University of Kent policies (https://www.kent.ac.uk/is/strategy/docs/Kent%20Open%20Access%20policy.pdf). If you feel that your rights are compromised by open access to this thesis, or if you would like more information about its availability, please contact us at ResearchSupport@kent.ac.uk and we will seriously consider your claim under the terms of our Take-Down Policy (https://www.kent.ac.uk/is/regulations/library/kar-take-down-policy.html).
Uncontrolled keywords: Law
Subjects: K Law > K Law (General)
K Law > KZ Law of Nations
Divisions: Divisions > Division for the Study of Law, Society and Social Justice > Kent Law School
SWORD Depositor: SWORD Copy
Depositing User: SWORD Copy
Date Deposited: 16 Jun 2022 15:32 UTC
Last Modified: 17 Jun 2022 08:24 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/94559 (The current URI for this page, for reference purposes)
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