Sovereignty and Jurisdiction in Airspace and Outer Space/
- New York: Routledge, 2012.
Introduction 1 1 Preliminary considerations: sovereignty, jurisdiction and control in international law 11 1.1 Territory and territorial acquisition in international law and relations 11 1.2 Delimitation and demarcation of international territories 19 1.3 The principle of territorial sovereignty 20 1.3.1 Sovereignty and property rights 26 1.3.2 Spatial dynamics of sovereign equality 29 1.4 The principles of territorial jurisdiction and territorial integrity 30 1.4.1 Quasi-territorial jurisdiction 36 1.4.2 Personal jurisdiction 37 1.5 Criminal jurisdiction of states 39 1.5.1 The territorial principle 42 1.5.2 The nationality principle 44 1.5.3 The protective (or security) principle 45 1.5.4 The passive personality or passive nationality principle 48 1.5.5 The universality principle 48 1.6 Jurisfaction and jurisaction 51 1.7 Control as a determinant of rights and liabilities 52 1.8 Summary and conclusions 54 Downloaded by [Sikkim University] at 04:48 14 September 2017 2 The legal status of the airspace 57 2.1 Nature and character of rights over airspace 57 2.2 Development of the concept of sovereignty over airspace 58 2.3 Nationality principle and control over aircraft in flight 66 2.3.1 Nationality principle and the question of what an aircraft is 71 2.3.2 Nationality of aircraft and the question of “genuine link” 75 2.4 Obligations with respect to state aircraft, civil aircraft and piloted/pilotless aircraft 80 2.5 Summary and conclusions 82 3 Jurisdiction over crimes in the airspace and on board aircraft 85 3.1 Development and patterns of national responses to crimes in airspace 85 3.2 Hierarchy of sources of jurisdiction over crimes committed in flight 91 3.3 Jurisdiction over common crimes and unruly passengers 93 3.4 Control over unlawful interference with civil aviation 102 3.5 The regime of multilateral treaties 114 3.6 The regime of bilateral treaties and other regional arrangements 121 3.7 The problem of state-sponsored crimes against the safety of aircraft 122 3.8 Summary and conclusions 128 4 Jurisdiction and control in the airspace over international spaces 132 4.1 International straits 133 4.2 Contiguous zone 134 4.3 The exclusive economic zone 135 4.3.1 Military activities over the EEZ 138 4.4 The continental shelf 141 4.5 The high seas 143 4.6 Airspace over Antarctic territories 145 4.7 Airspace over polar territories 146 4.8 Summary and conclusions 146 5 Sovereignty and trespass in territorial airspace 148 5.1 Involuntary entry of aircraft 151 5.2 Deliberate intrusion by state aircraft 152 5.3 Aerial intrusion by civil airliners 158 5.3.1 Trespass by foreign-based dissident, terrorist and activist groups 162 5.4 The controversial practice of no-fly zones and trespass over national territory 166 5.5 Summary and conclusions 171 x Contents Downloaded by [Sikkim University] at 04:48 14 September 2017 6 Jurisdiction and control in outer space 174 6.1 Exploitation and use of outer space: achievements and prospects 175 6.2 Jurisdiction and control in outer space: relevance of property and possession to the higher grounds 177 6.3 Summary and conclusions 188 7 Legality of the common heritage of mankind principle in space law 191 7.1 Outer space – res nullius or res extra commercium? 195 7.2 The scope of application of the CHM principle in space law 197 7.3 The CHM principle and the arguments for and against property rights in space 199 7.4 Summary and conclusions 205 8 Jurisprudential basis for common ownership 207 8.1 Jurisprudential basis for common ownership, possession and control over outer space 207 8.1.1 The significance of morality 215 8.2 Summary and conclusions 217 9 Jurisdiction and control rationae instrumenti and rationae personnae in outer space 220 9.1 Jurisdiction and control over national and international space stations 220 9.2 Nature of jurisdiction over space stations 222 9.3 Nationality and registration over space stations 225 9.4 Civil jurisdiction over space stations 229 9.5 Civil jurisdiction and intellectual property in the operation of space stations 232 9.6 Criminal jurisdiction over space stations 239 9.7 Jurisdiction and control rationae personae in outer space 245 9.7.1 Terminological confusion 245 9.7.2 Cases of unsettled jurisdiction 247 9.7.3 Liability over aerospace objects 250 9.7.4 The legal status of astronauts 253 9.7.5 Civil and criminal jurisdiction over envoys of mankind 257 9.7.6 Jurisdiction and control over mixed nationality crews 259 9.7.7 Socio-scientific considerations in the exercise of criminal jurisdiction in spatial territories 261 9.8 Summary and conclusions 264 Contents xi Downloaded by [Sikkim University] at 04:48 14 September 2017 10 Contemporary trends and threats to the regime of outer space law 266 10.1 Illegality of the militarisation of space 266 10.2 Jurisdiction and control over remote sensing operations: questions surrounding clandestine remote sensing from outer space 269 10.3 Liberal commercialism and entrepreneurship as driving force of international space tourism 273 10.4 Summary and conclusions 280 11 The never ending dispute: legal theories on the spatial demarcation boundary plane between airspace and outer space 282 11.1 The no-present-need theory 285 11.2 The present need school 290 11.3 The criteria of space activities or the functional approach 293 11.4 The aerodynamic lift theory 297 11.5 The Bogota Declaration view 301 11.6 The usque ad infinitum theory 305 11.7 The national security and effective control theory 306 11.8 The lowest point of orbital flight theory 306 11.9 Theories of arbitrary distances 309 11.10 Developing a conclusive theory on a legal spatial demarcation boundary plane between airspace and outer space 310 12 General conclusion 314 Appendices 322 Appendix I: Table AI.1 Chronology of notable military and diplomatic responses to aerial intrusions 1946–1999; Table AI.2 Chronology of allegations of Cuban airspace violations by aircraft of US nationality 1992–1996 322 Appendix II: Sample of letters of protest and denial between Cyprus and Turkey – (a) Letter dated 5 December 2010 from the Permanent Representative of Cyprus to the United Nations addressed to the Secretary-General; (b) Letter dated 10 January 2011 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General 342 Appendix III: Sample of letters of protest by Iraq against the USA, Britain and France. Letter dated 11 February 2002 from the Chargé d’affaires a.i. of the Permanent Mission of Iraq to the United Nations addressed to the President of the Security Council 350 xii Contents Downloaded by [Sikkim University] at 04:48 14 September 2017 Appendix IV: Diagrammatic representation of sovereignty and jurisdiction over maritime, air and outer spaces 358 Appendix V: States and their position of choice in response to the spatial demarcation boundary plane question 360