Aeronautical law
The expression Aeronautical Law refers to the set of legal rules that regulate air navigation and the establishment and use of its infrastructures, whether for civil (commercial or not) or military purposes. Said norms can be both of national or internal origin (that is, adopted unilaterally by each State), and of international origin (that is, arising from bilateral or multilateral agreements between several States or from organizations constituted by them, such as the Aviation Organization Civil International), the latter type of aeronautical regulations being very numerous and relevant due to the frequent supranational scope of flights.
Air navigation can give rise to legal relationships of a diverse nature or specialty and, therefore, the rules that regulate them, although they can be grouped and identified by their aeronautical purpose, belong to various branches of Law, such as Administrative Law (case of the norms that regulate or authorize the opening of aerodromes, flight licenses or the imposition of sanctions), Public International Law (in the case, for example, of aeronautical regulations and organizations derived from international agreements), Commercial Law (at that are ascribed, for example, the rules that regulate the air transport contract), Labor Law (of which the rules on crew working conditions are part) or Criminal Law (from which the rules that determine and disapprove aeronautical crimes).
Although they are not legal norms in the strict sense and, therefore, cannot be considered integrated into aviation law, the self-regulatory function of the guidelines, criteria or rules adopted within the International Air Transport Association (AIA) is very relevant. IATA), to which the numerous airlines that are part of it voluntarily submit.
General Principles of Aeronautical Legislation
- States have exclusive and absolute sovereignty over the airspace over their territory. Defusing the power of Police, the power to sanction rules.
- The landowner's rights must yield to the benefit of air circulation - Faculty of establishing private domain restrictions for the benefit of air circulation.
- The aircraft should not remain inactive. A. Economic criteria. B. Materializes the reasons for general interest.
- The journey must always be done. Economic criteria: obtaining necessary resources.
- Contractual and extracontractual liability derived from the facts and acts associated with aeronautical activity is limited. It puts into effect the autonomy of this branch of law. It goes against the principle of integral repair of the damage produced.
International Treaties
Hot air balloons were used in the Franco-German War of 1870-71, and the First Hague Conference of 1899 established a five-year moratorium on the use of balloons in combat operations, which was not renewed by the Second Hague Conference (1907). Before World War I, several nations signed bilateral agreements on the legal status of international flights, and during the war, several nations took the step of banning flights over their territory. In the aftermath of the war, several competing multilateral treaty regimes were established, including the Paris Convention of 1919, the Ibero-American Convention (1926) [3] and the Havana Convention (1928) [4]. The International Air Transport Association (IATA) was founded in 1919 at a conference in The Hague, to foster cooperation between airlines in various commercial and legal areas. [2]
Lack of uniformity in international air law, particularly with regard to the liability of international airlines, led to the Warsaw Convention of 1929.
The Chicago Convention on International Civil Aviation was signed in 1944, during World War II. It established the creation of the International Civil Aviation Organization as a United Nations unit dedicated to supervising civil aviation. The Convention also established several general principles that govern international air service.
The 1963 Tokyo Convention promulgated new international standards for the treatment of crimes committed against or related to aircraft. The 1999 Montreal Convention updated the carrier liability provisions of the Warsaw Convention, while the 2001 Cape Town Treaty created an international regime for the registration of security rights in aircraft and other large movable property.
Authorization and Continued Survival
The first form of international responsibility is given by Article VI of the Outer Space Treaty. This provision establishes that States (parties) are responsible for the international perspective of their national space activities, which are carried out by their government or their individual nationals. Article VI requires States Parties to authorize and control such activities.
The wording of article VI of Espacio 1967 has given rise to much discussion and is the subject of controversy. If it is indisputable that a State can be held responsible, on this basis, for space activities by a national private operator, which is, however, does not show that the international legislator intends to create an absolute responsibility dependent on the state (the absolute nature derived on the one hand, the absence of a wrongful act and, secondly, the absence of any possibility of exemption with no limit to the amount of compensation). Said absolute responsibility resulting from the interpretation of Article VI that a State is responsible for the mere fact that national space activity has caused damage (here we speak of the "absolutist" interpretation). Therefore, it is not possible for a State to evade this responsibility by establishing and implementing a system of licensing and supervision, as required by Article VI.
In many ways, this interpretation clashes with the general theory of the international responsibility of States. First, because a State is not responsible, from an international point of view, because of its nationals. It is another way only if it is derived or is in itself constitutes a violation by the State of its international obligations. So, unlike civil law civil liability, damage is not a constitutive element of international liability. It is considered that in view of the repair. The interpretation of Article VI amounts to "absolutist" to a direct link between the fact (activities in space) and the damage, since it is not required to objectively demonstrate an illegal act (violation of an international obligation).
In this controversy adds uncertainty to the notion of appropriate national and state space activities. Article VI does not define what effect(s) is or are the applicable rule(s) to determine the nationality of activities (as opposed to goods or persons that may be physically located). Some states consider the activities carried out under their jurisdiction to be the activities of their nationals. Other states (Belgium, the Netherlands) instead consider only the place where the activities are carried out as a relevant criterion. The question of its importance when one examines the scope of the authorization and supervision requirement imposed on the State. Taking into account that activities subject to authorization and supervision may be carried out outside the jurisdiction of the appropriate state, including the territory of a third State, it must be accepted that the effective application of authorization and supervision is subject to the authorization of the State. where the activities take place. Therefore, this interpretation is to make the State responsible for activities carried out outside its jurisdiction.
Damage caused by space objects
The second form of international liability for space activities is liability for damages under Article VII of the Outer Space Treaty.
In English, the distinction is facilitated by the use of different terms depending on whether one is talking about international liability under Article VI of the Outer Space Treaty ("liability") or liability for the damages referred to in article VII ("passive"). Although there is talk of liability for damages, it is in fact an international liability, since it is conceived and exercised between States.
Principle of non-pollution
This is to ensure that the activities of States do not cause harmful effects or adverse changes in the space environment or the terrestrial environment. The application of this principle is mainly based on international consultations before any potentially harmful activity. This particular provision may justify preventive action against states whose activities are likely to generate space debris. However, such action remains strong theoretical: the example of the destruction by firing a degraded satellite by the Chinese military in January 2007 shows that while these consultations could have been useful, they were not taken into account as part of the Treaty of Outer space and that, for strategic reasons related to defense interests. It was even the shooting destruction of a drifting spy satellite by US troops in February 2008. Unlike the Chinese shooting, however, the destruction of the US satellite has limited the number of debris created in well-orbit.
Another application of this principle is the importation of biological material on other planets that can interfere with the search for life forms. This hypothesis was raised in the exploration of Mars.
Principle of free access to facilities and equipment
A special role is reserved for the Secretary General of the United Nations to collect information submitted by States on their space activities and to provide this information to other States and the scientific community.
In addition, the model offered by the 1959 Antarctic Treaty, a system of mutual control through visits to its facilities and United teams is applicable to activities on celestial bodies.
Consensus
The United Nations Committee for the Peaceful Uses of Outer Space and its scientific and technical and Legal subcommittees function on the basis of consensus, that is, all the delegations of the Member States must agree on any matter, version of a treaty or new items on the agendas of the Commission / Sub-Commission. One reason the US space treaties lack definitions and are otherwise unclear is that it is easier to reach consensus when the language and terms are vague. In recent years, the Legal Subcommittee has not been able to reach a consensus on the discussion of a new comprehensive space agreement (the idea of which, however, was proposed by a few Member States). It is also unlikely that the Subcommittee will be able to agree to amend the Outer Space Treaty in the foreseeable future. Many nations operating in space seem to believe that discussing a new space agreement or an amendment to the Outer Space Treaty would be futile and time-consuming, because entrenched differences over resource appropriation, property rights, and other space-related issues commercial activity make consensus unlikely.
1998 International Space Station Agreement
In addition to the international treaties that have been negotiated at the United Nations, the nations involved in the International Space Station have signed the 1998 agreement between the governments of Canada, member states of the European Space Agency, Japan, and the Russian Federation. United States concerning cooperation on the Civilian International Space Station (the "Space Station Agreement"). This agreement establishes, among other things, that NASA is the lead agency in coordinating the contributions and activities of member states on the space station and that each nation has jurisdiction over its own module. The Agreement also provides for the protection of intellectual property and criminal prosecution procedures. This agreement may very well serve as a model for future agreements on international cooperation on facilities on the Moon and Mars, where the first off-world colonies and scientific/industrial bases are likely to be established.
National laws
Space law also encompasses national laws, and many countries have passed national space legislation in recent years. The Outer Space Treaty requires the parties to authorize and supervise national space activities, including the activities of non-governmental entities, such as commercial and non-profit organizations. The outer space treaty also incorporates the Charter of the United Nations by reference and obliges Parties to ensure that activities are carried out in accordance with other forms of international law, such as customary international law (custom and practice of the States).
The increase in commercial space activities beyond the purview of the satellite communications industry and the development of many commercial space airports is leading many countries to consider how to regulate private space activities. The challenge is to regulate these activities in a way that does not hinder or impede investment, while ensuring that commercial activities comply with international law. Developing nations are concerned that space nations will monopolize space resources. [Citation needed] However, this can be solved simply by extending the United Nations Convention on the Law of the Sea to outer space.
In May 2015, the United States Congress was considering the Space Resources Exploration and Utilization Act of 2015.
Geostationary orbit
Satellites in geostationary orbit must occupy a single ring above the equator, approximately 35,800 km in space. The requirement to space these satellites means that there are a limited number of "slots" orbitals available, so only a limited number of satellites can be placed in geostationary orbit. This has led to conflicts between different countries that want access to the same orbital slots (countries of the same longitude but different latitudes). These disputes are addressed through the ITU allocation mechanism. Countries located on Earth's equator have also asserted their legal demand to control the use of space above their territory, especially in 1976, when many countries located on Earth's equator created the Bogota Declaration, Controlling the use of space above its territory.
Development in the future
Exploitation of resources
While this field of law is still in its infancy, it is in a time of rapid change and development. Possibly the resources of space are infinite. If commercial space transportation becomes widely available, with substantially lower launch costs, then all countries will be able to reap the benefits of space resources. In that situation, it seems likely that consensus will be much easier to achieve regarding the commercial development and human settlement of outer space. High costs are not the only factor that prevents the economic exploitation of space: it is argued that space must be considered as a pristine environment worthy of protection and conservation and that the legal regime of space must further protect it from being used as a resource for The needs of the Earth. The debate also centers on whether space should continue to be legally defined as part of the "common heritage of man" and is therefore not available for national claims, or if its legal definition needs to be changed to allow for private ownership in space.
As of 2013, NASA's plans to capture an asteroid by 2021 have raised questions about how space law would apply in practice.
In 2016, the nation of Luxembourg established a formal legal framework that ensures that private companies engaged in mining resources in space have rights to those resources.
Legal Profession
Michael Dodge, of Long Beach, Mississippi, was the first law graduate to receive a space law certificate in the United States. [27] [28] Dodge graduated from the National Center for Remote Sensing, Air and Space Law at the University of Mississippi School of Law in 2008. [29] [30] He is now an assistant professor in the Department of Space Studies at the University of North Dakota.
The University of Sunderland is the first UK university to offer a space law module as part of its LLB programme.
The University of Nebraska School of Law offers the first and only LL.M. from United States. And Doctor of Science of Law (J.S.D.) in space, cyber and telecommunications law. Professor Frans von der Dunk, former director of space law research at Leiden University, joined the program in 2007. In addition to the LL.M., students can earn a J.D. in Nebraska Law with an emphasis in space and telecommunications law. The program also hosts three space and telecommunications conferences each year.
For more than 10 years, the University of Paris-South with the Institute of Space Law and Telecommunications has offered a Master's Degree in Law of Space Activities and Telecommunications. This Master has the support of numerous companies in the space and telecommunications sector.
In August 2012, students at the University of the Pacific, McGeorge School of Law in Sacramento, California created the McGeorge Society for Space Law and Policy.
In September 2012, the Space Law Society (SLS) was established at the University of Maryland Francis King Carey College of Law. [36] A legal resources team united in Maryland, a "Space Science State," with Jorge Rodríguez, Lee Sampson, Patrick Gardiner, Lyra Correa and Juliana Neelbauer as founding members of SLS.
In August 2014, Northeastern University School of Law students founded the school's Space Law Society.
Since 1951, McGill Law School in Montreal, Canada, has been home to the Institute of Air and Space Law and offers an LL.M in Air and Space Law. The University of Leiden, the Netherlands, houses an International Institute of Air and Space Law and offers an LL.M. degree.
In 2014, students at the American University of Washington College of Law founded the school's Space Law Society, with the help of Pamela L. Meredith, a space attorney and assistant professor of satellite communications and of space law.