And Now, For Aviation in Outerspace?

It could be a matter of time (a few decades at the most, but possibly sooner) that other space-faring nations send their own “aircraft” to the Red Planet.

by Dr. Ruwantissa Abeyratne

Writing from Montreal

“The sky is the limit only for those who aren't afraid to fly!”

― Bob Bello, Sci-Fi Almanac, 2010

Perseverance -a rover meant to traverse a 45-kilometer-wide crater on Mars - is a six wheeled rover launched by the National Aeronautics and Space Administration (NASA) on 30 July 2020, under the Perseverance Robotic Space Mission. The rover is expected to begin its extra-terrestrial journey on the surface of Mars on 18 February 2021. The Perseverance mission also carried a helicopter called Ingenuity – an aerial vehicle weighing just 1.8 kilograms which will record the first controlled flight of an aircraft (in the most general of definitive terms) extra terrestrially. The Economist reports that on the success of the helicopter’s flight would depend the introduction of drones to be included in Mars missions, designed to traverse the atmosphere of the planet. Notably, Mars has an atmosphere of one tenth of the atmosphere at the surface of the Earth.

It could be a matter of time (a few decades at the most, but possibly sooner) that other space-faring nations send their own “aircraft” to the Red Planet.

Cambridge Dictionary defines an “aircraft” as any vehicle, with or without an engine, that can fly, such as a plane or helicopter. This generic definition has been expanded with infused technical credibility by the identification of an ”aircraft” as "any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth's surface”. The generic definition seems to accord with the characteristics and function of Ingenuity on Mars.

It would seem that the space faring community may have to give serious thought to addressing issues of flight by aircraft on extra terrestrial atmosphere. The starting point would be the fact that there is no sovereignty in outer space and no country can claim ownership and governance over outer space and celestial bodies. In a sense, this would be analogous to flights over the high seas on Earth, which is considered no man’s land. From a maritime perspective, high seas, are all parts of the mass of saltwater surrounding the globe that are not part of the territorial sea or internal waters of a State. The United Nations Convention on the Law of the Sea (UNCLOS) stipulates that the sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

From an aviation point of view, the Chicago Convention prescribes that every State has complete and exclusive sovereignty over the airspace above its territory and that the territory of a State is deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State. This clearly excludes sovereignty of any kind over the high seas leading to the fact that no State can claim sovereignty over the high seas. However, The Convention goes on to say that over the high seas, the rules in force will be those established under the Convention and that each State undertakes to ensure the prosecution of all persons violating the applicable regulations promulgated in the context of conduct aerial transport over the high seas. For this purpose, the Council of the International Civil Aviation Organization (ICAO) has adopted Annex 2 (Rules of the Air) to the Chicago Convention which contains mandatory rules of conduct of each State.

The Outer Space Treaty of 1967, the seminal multilateral accord governing activities in outer space starts off by saying that outer space, including the Moon and other celestial bodies, will be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and every State is entitled to free access to all areas of celestial bodies.

Additionally, The Moon Treaty (Treaty on Principles Governing The Activities of States in the Exploration and Use of Outer Space, Including The Moon and Other Celestial Bodies) requires that the exploration and use of outer space, including the moon and other celestial bodies, Exploration and use should be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and will be the province of all mankind. The Moon Treaty also stipulates that outer space, including the moon and other celestial bodies, will be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and every State will have free access to all areas of celestial bodies, which includes freedom for scientific investigation in outer space, including the moon and other celestial bodies, and States are required to facilitate and encourage international co-operation in such investigation. Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

Current laws and rules of conduct are seemingly laid wide when it comes to addressing future activities of space faring nations in the atmosphere of celestial bodies. The key considerations in this regard would be competition, particularly in the absence of the right to sovereignty in outer space, and the demarcation of aerial space between aircraft of different States. In this context, a good analogy attenuate would be the fundamental theme of aerial coexistence here on earth, as enunciated by the Preamble to the Chicago Convention – that certain principles and arrangements should be in place so that “international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically”.

When these three fundamental concepts – of sound and economic aerial transport on celestial terrain; being conducted in a safe and orderly manner; with equality of opportunity, one could have a starting point for deliberations on further details. The “equality of opportunity” clause in the aviation context would embellish and add to the general reference to ”equality” in the Outer Space Treaty and the Moon Treaty.

Dr. Abeyratne is the author of numerous books on aerospace law among which are Frontiers of Aerospace Law (Ashgate) and Regulation of Commercial Space Transport (Springer).