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

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.