International Airspace: Which Laws Apply?

The laws that apply to aircraft traversing international airspace are a complex and often confusing issue. While on the ground, local laws apply, and in the air, the laws of the country where the aircraft is registered govern offences committed onboard. However, the laws of the country whose airspace the aircraft is traversing may also apply in specific circumstances. This is determined by various international agreements and conventions, such as the Tokyo Convention, the Chicago Convention, and the Montreal Protocol. These agreements outline the rights and responsibilities of countries with regards to their airspace and international aviation, with the International Civil Aviation Organization (ICAO) providing general rules and mediating international concerns.

Laws for offences committed on board

The Tokyo Convention

The Convention on Offences and Certain Other Acts Committed on Board Aircraft, commonly known as the Tokyo Convention, is a pivotal international treaty in this area. It came into force in 1969 and, as of 2022, has been ratified by 187 parties. The Tokyo Convention addresses offences against penal law and any acts that jeopardise the safety of individuals or property on board civilian aircraft during international flights. It applies to acts committed on board aircraft registered in a contracting state, flying over the high seas or areas beyond the territory of any state, as well as the airspace of contracting states.

The convention recognises the authority of the aircraft commander to take necessary actions to maintain law and order on board. It empowers the commander to restrain individuals who are committing or are about to commit an offence that could compromise safety or disrupt good order. Additionally, the commander is authorised to disembark any offender in any contracting state where the aircraft lands.

Jurisdiction

The Tokyo Convention establishes the principle of jurisdiction for the state of registration of the aircraft. This means that the laws of the country where the aircraft is registered generally apply to offences committed on board during international flights. However, the convention also allows for specific conditions under which other states may exercise criminal jurisdiction. These conditions include situations where the offence:

• Has an effect on the territory of another state
• Has been committed by or against a national of another state
• Poses a threat to the national security of another state
• Involves a breach of rules and regulations related to the flight and manoeuvre of aircraft in that state
• Requires the exercise of jurisdiction to fulfil obligations under an international agreement

The Montreal Protocol

The Montreal Protocol, established in 2020, further expanded the legal framework by granting jurisdiction to the arriving country and the home country of the operator in certain cases. This protocol aims to enhance cooperation among states in prosecuting offenders and provides a more flexible approach to dealing with ambiguous jurisdictional situations.

National Laws and International Agreements

While the Tokyo Convention and the Montreal Protocol are pivotal, individual nations also have their own laws and regulations that come into play when an aircraft is within their territorial airspace. For example, laws regarding alcohol consumption or other specific regulations may apply when the aircraft is within a particular country's airspace or on the ground.

Additionally, international agreements, such as the Chicago Convention on International Civil Aviation and the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, also play a role in shaping the legal landscape for offences committed on board aircraft.

Country of aircraft registration

The laws that apply onboard an aircraft during an international flight can be a confusing issue, and this is further complicated by the fact that multiple countries can apply jurisdiction at the same time.

According to the Tokyo Convention, the laws of the country where the aircraft is registered generally apply to offences committed onboard. This is also why, in some rare cases, a baby born onboard a flight can take the nationality of the country of registration. The registration identifier, which indicates the aircraft's country of registration, must be displayed prominently on the aircraft and can be found on its Certificate of Registration, issued by the relevant civil aviation authority (CAA).

However, there are exceptions to this rule. The Montreal Protocol expanded the rules to include the arriving country and the home country of the operator (and sometimes the lessor) in certain cases. This gives authorities more flexibility when dealing with acts that fall into a legal grey area and encourages international cooperation on the prosecution of offenders.

Furthermore, in specific circumstances, the country whose airspace the aircraft is traversing can also apply its laws. The Tokyo Convention outlines the following conditions under which the criminal jurisdiction of the overflown country can be exercised:

• If the offence has an effect on the territory of such a State.
• If the offence has been committed by or against a national of such a State.
• If the offence concerns the national security of such a State.
• If the offence involves a breach of any rules and regulations relating to the flight and manoeuvre of aircraft in force in such a State.
• If the exercise of jurisdiction is necessary to ensure the observance of any obligation of such a State under an international agreement.

In summary, while the country of aircraft registration typically has jurisdiction over offences committed onboard an international flight, the laws of the arriving country, home country, and overflown country may also be applicable in certain circumstances.

Airspace country laws

By international law, each state has "complete and exclusive sovereignty" over the airspace above its territory, which extends 12 nautical miles (22.2 km) from its coastline. This corresponds with the maritime definition of territorial waters. Any airspace beyond a country's territorial limit is considered international airspace, similar to the "high seas" in maritime law.

However, through international agreements, countries can assume responsibility for regulating parts of international airspace, often over oceans. Such airspace is known as a Flight Information Region (FIR). For instance, the United States provides air traffic control services over a significant portion of the Pacific Ocean, despite the airspace being classified as international.

While there is no international agreement on the vertical boundaries of a country's airspace, most states use the Kármán Line, approximately 100 kilometres above sea level, as the threshold between airspace and outer space. This line is not legally binding, however, and countries define their own boundaries.

When an aircraft is on the ground, the laws of that country apply, regardless of the aircraft's country of registration or the nationality of its passengers or crew. In the context of international flights, the laws that apply once the aircraft is in the air are more complex and depend on various factors.

According to the Tokyo Convention, the country where the aircraft is registered generally has jurisdiction over offences committed onboard. However, multiple countries can have concurrent jurisdiction. The specific nature of an offence may also determine whether local jurisdiction applies, such as in cases involving national security or affecting a country's citizens.

The Montreal Protocol expanded these rules, allowing the arriving country and the home country of the operator to also exercise jurisdiction in certain cases, promoting cooperation among states in prosecuting offenders.

Additionally, under specific conditions outlined in the Tokyo Convention, the country whose airspace the aircraft is traversing can also apply its laws if the act committed involves that country. These conditions include:

• The offence has an effect on the territory or citizens of that country.
• The offence concerns the national security of that country.
• The offence involves a breach of rules and regulations related to flight and aircraft manoeuvre in that country.
• The exercise of jurisdiction is necessary for that country to fulfil its obligations under an international agreement.

International agreements

The International Civil Aviation Organization (ICAO), a specialized agency of the United Nations, plays a pivotal role in mediating international concerns and providing general rules for aviation law. The ICAO's standards and recommended practices serve as guidelines for member states to adopt and implement their own aviation regulations. Deviations from these standards require notification to the ICAO.

The Chicago Convention, signed by 52 countries, established a unified framework for international aviation regulations, encompassing safety, environmental considerations, and the rights and obligations of nations regarding international air operations. This convention applies only to international commercial air travel and does not cover military operations, domestic flights, or private aircraft.

The Tokyo Convention (1963) and the Montreal Protocol (2020) address the legal jurisdiction for criminal offenses committed on or involving aircraft. The Tokyo Convention stipulates that the laws of the country where the aircraft is registered govern offenses committed onboard. The Montreal Protocol expands on this by granting jurisdiction to the arriving country and the operator's home country in certain circumstances.

The Montreal Protocol also enhances cooperation between countries and empowers airlines to take preventive measures against unruly passengers. Additionally, specific conditions outlined in the Tokyo Convention allow the country whose airspace is traversed to apply its laws if the offense impacts its territory, involves its citizens, or pertains to its national security.

The development of international air law has been influenced by historical events, technological advancements, and the need for a uniform regulatory framework. The Second World War, for instance, played a pivotal role in breaking down geographic and political barriers, paving the way for a new era of international aviation agreements and technological innovations in civilian aviation.

Aviation law organisations

Aviation law is a branch of law that concerns flight, air travel, and associated legal and business concerns. In the international realm, the International Civil Aviation Organization (ICAO) provides general rules and mediates international concerns to an extent regarding aviation law. The ICAO is a specialized agency of the United Nations.

In the United States and most European nations, aviation law is considered a federal or state-level concern and is regulated at that level. In the U.S., states cannot govern aviation matters in most cases directly but look to federal laws and case law for this function instead. For example, in 2008, the United States Court of Appeals for the Second Circuit struck down New York's Passenger Bill of Rights law because the regulation of aviation is traditionally a federal concern.

Aviation law is considered a matter of international law due to the nature of air travel. However, the business aspects of airlines and their regulation also fall under aviation law. The earliest legislation in air law was a 1784 decree of the Paris police, forbidding balloon flights without a special permit.

The International Air Transport Association (IATA) was founded in 1919 in a conference at The Hague to foster cooperation between airlines in various commercial and legal areas. The IATA is also an organ for consultations between airlines operating the same routes.

The Chicago Convention on International Civil Aviation, signed in 1944, provided for the establishment of the ICAO as a unit of the United Nations devoted to overseeing civil aviation. The convention also provided various general principles governing international air service.

The Tokyo Convention of 1963 enacted new international standards for the treatment of criminal offenses on or involving aircraft. The laws that apply on board an aircraft bound for an international destination are defined by the Tokyo Convention.

The Montreal Convention of 1999 updated the carrier liability provisions of the Warsaw Convention, while the Cape Town Treaty of 2001 created an international regime for the registration of security interests in aircraft and certain other large movable assets.

Aviation Legal Group, P.A. is a leading transactional and commercial litigation practice for general and commercial aviation. The group has been providing personal attention to its clients since 1997. The group's attorneys are frequent speakers and presenters at aviation conferences.

Aviation Law is a boutique law and consultancy firm dedicated to aviation. The firm's founder, Michael Scheurich, is an attorney at law with the High Courts and Courts of Appeal of the Federal Republic of Germany. He has worked in private practice in Germany and for one of the most successful airlines in the world, Emirates Airline & Group.

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