On 25 July 1909, from Calais (France) to Dover (England). See:
http://blog.nasm.si.edu/2009/07/25/bleriots-cross-channel-flight/

See for instance: http://www.hobbyspace.com/Tourism/. SpaceShipOne merits special attention as it won a prize in 2004 because of its design and technical capabilities – the ‘Anzari X Prize’; see: www.xprizefoundation.com

As to which see section VI below

Seehis oration called “De vorming van het luchtrecht” [The formation of air law], delivered on 19 October 1938 at Leiden University

In his oration called “Reality and Value in Air and Space Law”, delivered on 27 January 1978 at Leiden University

In his oration called “The autonomy of and of space law, visited and revisited: The difference between theory and practice” delivered on 10 October 1997 at Leiden University

See Article 21 - Intellectual Property, and Article 22 - Criminal Jurisdiction of the Intergovernmental Agreement establishing the International Space Station. The cooperative framework agreement was signed on 29 January 1998 by 15 Governments: the USA, Canada, Japan, the Russian Federation, and eleven Member States of ESA. It entered into force on 28 March 2001. Accessible via: www.elevenpub.com/Online/SLBLD.aspx

See her Article: I.H.Ph. Diederiks-Verschoor, Similarities with and differences between air and space law, primarily in the field of private international law, 172 (III) Recueil des cours 317-423 (1981)

See Article 1 on Sovereignty of the Chicago Convention of 1944 on international civil aviation: “The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.”

See Article I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies: “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic and scientific development, and shall be the province of all mankind.”

The national law of Australia defines the demarcation between airspace and outer space – in this case at 100 kilometres above the surface of the earth, the Australian Space Activities Act No 123 of 1998, as amended by the Space Activities Act No 100 of 2002

See on this subject: UN Doc-A/AC-105-C-2/7 of 7 May 1970 and UN Doc-A/AC-105/c2/7, Add . 1 (21 January 1977); see also: A. Gorbiel, Legal Definitions of Outer Space (1980), L. Perek, Scientific Criteria for the Delimitation of Outer Space, 5 Journal of Space Law 111-124 (1977) and He Qizhi, The Problem of Definition and Delimitation in Outer Space, 10 Journal of Space Law 157-163 (1982)

As to which see for instance: http://www.hq.nasa.gov/pao/History/conghand/satobsrv.htm

To wit, the above mentioned Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; and The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968); the Convention on International Liability for Damage Caused by Space Objects (1972); the Convention on Registration of Objects Launched in Outer Space (1975), and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979).

See: Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (1963), Principles Governing the Use by States of Artificial Earth Satellites for international Direct television Broadcasting (10 December 1982); Principles on Remote Sensing (11 December 1986) and Principles Relevant to the Use of Nuclear Power in Outer Space (14 December 1992), and the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries (1996), as developed by the United Nations Committee on the Use of Outer Space (UNCOPOUS) and adopted by the General Assembly of the United Nations

Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, signed in 1972, in force until the unilateral withdrawal of the United States in 2002; accessible via: http://www.ntip.navy.mil/abm_treaty.shtml

The Comprehensive Nuclear Test-Ban Treaty, adopted in 1996 by the General Assembly of the United Nations, not yet in force and accessible via: http://www.state.gov/www/global/arms/treaties/ctb.html

See Article VII of the aforementioned Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies and the provisions of Convention on International Liability for Damage Caused by Space Objects (1972)

As to which see the next sub-section (III.3)

See Article I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies

See in particular Articles II and IV of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies:

Article III: “States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding.”

Article IV: “States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, instal such weapons on celestial bodies, or station such weapons in outer space in any other manner.

The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.”

See again, Article I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies

See: Fabio Tronchetti, The Exploitation of Natural Resources of the Moon and other Celestial Bodies: a Proposal for a Legal Regime, Doctoral thesis defended at Leiden University on 18 December 2008

See Article 11(1): “The Moon and its natural resources are the common heritage of mankind …” – (italics added). The Moon Agreement is not in force

See also: Bin Cheng, The Extra-Terrestrial Application of International Law, Current Legal Problems 132-152 (1965)

See Article 6 of the Chicago Convention: Scheduled air services “No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.”

See Article 3 of the Chicago Convention: Civil and state aircraft (c) “No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof.”

See Article 5 of the Chicago Convention: Right of non-scheduled flight

“Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing.”

Convention relating to the Regulation of Aerial Navigation, signed at Paris on 13 October 1919; see also: John C. Cooper, United States Participation in Drafting Paris Convention 1919, 18(3) Journal of Air law and Commerce 266-280 (1951)

See http://www.eurocontrol.int/ses/public/subsite_homepage/homepage.html

See, for an impressive record of the state of affairs in the aftermath of those attacks:
http://www.9-11commission.gov/report/911Report_Ch10.htm

See www.eurocontrol.int/ses/public/subsite_homepage/homepage.html

See: Brian Havel, Beyond Open Skies: A New Regime For International Aviation (2009)

Pursuant to the Airline Deregulation Act of 24 October 1978, Public Law 95-504, 92 Stat. 1705

See, Pablo Mendes de Leon, Cabotage in Air Transport Regulation 140-152 (1992)

As currently laid down in EC Regulation 1008/2008 on common rules for the operation of air services in the Community

See his lecture Politiek en Recht in de Internationale Luchtvaart (Policy and Law in International Air Transport (1953)

See for instance, H.A. Wassenbergh, The Right of States to Participate in Air and Space Transportation Activities (1994)

See the Preamble of the Chicago Convention: “WHEREAS the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security;”

See the Permanent Court of International Justice, Decision of 7 September 1927, the Case of the S.S. Lotus (France v. Turkey), P.C.I.J. Ser. A. No. 10: ”International law governs relations between States. ….Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. …. In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places on its jurisdiction; within these limits, its title to exercise jurisdiction rests on its sovereignty.” See also, the International Court of Justice in the British Norwegian Fisheries case, International Court of Justice Reports 132 (1951)

See, International Court of Justice, Separate Opinion of Judge Jessup in the Case Concerning the Barcelona Traction, Light and Power Company, Limited, Reports of Judgments, Advisory Opinions and Orders 166 (1970): “There is a trend in the direction of extending the jurisdictional power of the States to deal with foreign enterprises which have contact with the State’s territorial domain;” upon which Judge Jessup refers to the decision of the Lotus case mentioned above, asking what the words “the limits placed by international law” as expressed in that case mean. As to the extra territorial enforcement of competition and anti trust law, see for instance, the well known Alcoa case (U.S. v. Aluminum Co. of America, 148 F. 2d 416 (1945), and for the EC: the judgment of the European Court of Justice of 31 March 1993 in Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] European Court Reports I-1307 (1993); see on this subject: M.J. Kerry, Extraterritorial Application of Competition Law, in: Arnold Kean, Essays in Air Law 125-146 (1982). See also: Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: the Constitution and International Law, 83(4) The American Journal of International Law 880-893 (1989)

See for instance Article 23(2) of the Convention On Damage Caused By Foreign Aircraft To Third Parties on the Surface (Rome Convention, 1952): “For the purpose of this Convention a ship or aircraft on the high seas shall be regarded as part of the territory of the State in which it is registered.”

49 U.S.C. §41311(b) (1994)

Unless such criminal acts are covered by the Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963, or The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, also referred to as the Hague Hijacking Convention of 1970.

Pursuant to EC Regulation 261/2004, creating multi-level jurisdictional questions, as to which see for instance: Jorn Wegter , The ECJ decision of 10 January 2006 on the Validity of Regulation 261/2004: Ignoring the Exclusivity of the Montreal Convention published in XXXI (2) Air and Space Law 133-148 (2006), discussing the compatibility between the aforementioned EC regulation and international law as laid down in the Montreal Convention, 1999, for the Unification of Certain Rules for International Carriage by Air, done at Montreal May 28, 1999, and extra territorial issues as EC carriers may be obliged to grant passenger protection measures abroad, that is, at airports located on on-EC states.

As this list comprises airlines which never operate to a point in the EC and are not based in the EC, such as Royal Air Swazi from Swaziland or Air Rum from Gabon; see EC Commission Regulation 619/2009 amending EC Regulation 474/2006 establishing the Community list of air carriers which are subject to an operating ban within the Community

This disagreement was provisionally solved by the conclusion of an EU-US agreement in 2003. See, EU Council Decision of 17 May 2004 on the conclusion of an Agreement between the European Community and the United States of America on the processing and transfer of PNR data by Air Carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection (Official Journal of the European Union L 183/3-85 (2004). Key undertakings under the agreements are to: restrict the use of data for combating trans-national terrorism and serious crimes; limit the retention of data to 3.5 years and to provide redress to passengers through institutionalised measures designed to protect the privacy interests of EU citizens. See, on thus subject: Pablo Mendes de Leon, The Fight Against Terrorism through Aviation: Data Protection versus Data Production XXX/I4-5 Air & Space Law 320-331 (2006)

Signed at New York on 9 May 1992; it entered into force on 21 March 1994

As established by Part II of the Chicago Convention on international civil aviation

See Article 2(2) of the Kyoto Protocol: “The Parties included in Annex I shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively.

It has been created under EC Directive 2003/87 which has been amended by EC Directive 2008/101 - hereafter referred to as the amended ETS Directive - so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community.

As to which see sub-section 5.4 above

See also: Ultich Steppler and Angela Klingmüller, EU Emissions Trading Scheme and Aviation: Quo Vadis? 4/5 Air and Space Law 253-260 (2009)

See, ICAO’s Resolution A36-7, Appendix L addressing Market based measures including emissions in order to combat climate changes pursuant to which ICAO states are “urged” not to implement an Emissions trade scheme on airlines of other ICAO states except on the basis of mutual agreement between those States. Portugal, speaking on behalf of the EC states, the EC and ECAC (European Civil Aviation Conference) states has made a reservation to this part of the ICAO Resolution so as to pave the way for the introduction of EC based measures for the establishment of an ETS. See also on this, Carl Burleson, The EU Emissions Trading Proposal: History Often Rhymes, American Bar Association, 21(3) The Air and Space Lawyer, 1 and 23-27 (2007); See also: the letter dated 6 April 2007 and signed by the Ambassadors to the EC of a number of important third states, including Australia, the PR of China, Korea, Canada, the US and Japan addressed to the German Ambassador to the EC as Germany held the Presidency of the EC in that period of time (not published) See, on this subject, Ulrich Steppler and Angela Klingmüller, EU Emissions Trading Scheme and Aviation (2009)

Judgment of the European Court of Justice (Grand Chamber) of 10 January 2006 in Case C-344/04: Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division The Queen on the application of International Air Transport Association, European Low Fares Airline Association v Department for Transport, as discussed by Jorn Wegter, The ECJ decision of 10 January 2006 on the Validity of Regulation 261/2004: Ignoring the Exclusivity of the Montreal Convention, XXXI (2) Air and Space Law 133-148 (2006) and John Balfour, European Court Flies Solo on Passenger Rights 5(4) Shipping & Transport Lawyer 19-21 (2006)

Following the procedure of Article 84 Settlement of disputes of the Chicago Convention: “If any disagreement between two or more contracting States relating to the interpretation or application of this Convention and its Annexes cannot be settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by the Council.”

See an article edited by Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, which appeared in Vol. 95(2) American Journal of International Law (April 2001), accessible via: http://www.abanet.org/adminlaw/fall02/aijl_intl_artical.pdf

See the procedure laid down in the clause quoted in the next footnote, with the understanding that the words “by a meeting of the Joint Committee” must be placed by “consultations and negotiations” or words having a similar meaning.

See, Air Transport Agreement of 18 April 2007 (entry into force: 31 March 2008), between the United States of America, the EC Member States and the European Community, available at: http://ec.europa.eu/world/agreements/prepareCreateTreatiesWorkspace/treatiesGeneralData.do?step=0&redirect=true&treatyId=4701 :
Article 19 Arbitration

“1. Any dispute relating to the application or interpretation of this Agreement, other than issues arising under Article 20 or under Annex 2, that is not resolved by a meeting of the Joint Committee may be referred to a person or body for decision by agreement of the Parties. If the Parties do not so agree, the dispute shall, at the request of either Party, be submitted to arbitration in accordance with the procedures set forth below.

2. Unless the Parties otherwise agree, arbitration shall be by a tribunal of three arbitrators to be constituted as follows: (a) Within 20 days after the receipt of a request for arbitration, each Party shall name one arbitrator. Within 45 days after these two arbitrators have been named, they shall by agreement appoint a third arbitrator, who shall act as President of the tribunal.”

See, Gilbert Guillaume, Les affaires touchant au droit aérien devant la Cour intrenationale de justice (Air law cases before the International Court of Justice), Mariette Benkö and Walter Kröll, Liber Amicorum Karl-Heinz Böckstiegel, 75-87 (2001)

Pursuant to Chapter IV – Advisory Opinions - of the Statute of the International Court of Justice

See, Dieter Lange and Gary Born, International Chamber of Commerce, The Extraterritorial Application of National Laws 46-50 (1987)

See again, the Preamble of the Chicago Convention: “THEREFORE, the undersigned governments having agreed on certain principles and arrangements in order 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;”

Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999; see:
www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/doc.html

See, Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment and Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Spacecraft Equipment, accessible via:

http://www.jus.uio.no/lm/unidroit.mobile.equipment.international.interests.on.
matters.specific.to.aircraft.equipment.protocol.2001/landscape.pdf

See: www.icao.int/icao/en/leb/mtgs/2009/DCCD/docs/DCCD_doc_42_six_lang.pdf

See: www.icao.int/icao/en/leb/mtgs/2009/DCCD/docs/DCCD_doc_43_six_lang.pdf

See: www.icao.int/icao/en/leb/rome1952.pdf; this convention establishes liability of the aircraft operator – mostly the airline – for damage caused by the operation of that aircraft to third parties on the ground. It only applies if both the concerned aircraft is registered in a contracting state (of the Rome Convention, 1952) and the place where the damage has occurred is located in the territory of a contracting state. Many states did not ratify this convention as the liability of the operator of the aircraft is limited – with low liability limits.

See also: Bin Cheng, The Extra-Terrestrial Application of International Law, Current Legal Problems 132-152 (165)

See I, the Introduction

The emergence of commercial suborbital flights: public international law and liability issues, Published in: Estudios de derecho aeronautico y especial, Mario Folchi and Maria Jesus Guerrero Lebrón (Ed.s), Proceedings of the XXXI Jornadas Latinoamericas de Derecho aeronáutico y espacial, Seville, Spain, 20-23 March 2007 (published in 2008)

See: Darcy Beamer-Downie, lawyer at Beaumont and Son aviation at Clyde and Co, London, UK: A Brief Introduction to Space Tourism, paper presented at the 25th annual Aviation Law Association of Australia and New Zealand (2006)