This article is written by Adithya Prasad, pursuing a Diploma in International Business Law from LawSikho.

Introduction

We live in a world where the idea of property is treated as a smart investment in most cases. They act on the primary functions of money, the accumulated personification of value in modern society. This property can be seen in many types and incarnations; however, this article will focus on real-estate and appropriation of geographical points on and beyond the earth to function as property. So, ever wondered, can we own air and space beyond?

So, what will this article cover?

1. The jurisprudence of property appropriation and general principles.
2. What does the Paris and Chicago convention say about ‘air-space’?
3. What are the general air rights and principles for real estate?
4. In conclusion, can you own airspace and what is the future?

Property, is it yours?

Throughout history, political and legal philosophers are in constant disagreement. Some believe that all property belongs to the state, whose jurisdiction it falls under while others believe in a more private version of property ownership. Ancient philosophers often tried to reason why man was so obsessed with the concept of property, people like Grotius^[1], Locke^[2] and Blackstone believed that property is something that must be worked towards.

If one were to take a piece of land and by operation, take care and use the land for its many uses whilst expanding blood and sweat, then such a piece of land belongs to the worker by default.

According to Grotius, “all things originally were without an owner and whosoever captured them or occupied them, became their owners.”^[3]

This conversation during the natural law era also sparked another question in people’s minds, on the rights of the people. The theorists of the era believed that there existed some inherited rights that always existed and will exist due to our origin from nature itself.

John Locke, “Every man has a property in his person, he has right to preserve his property, that is, his life, liberty and estate”. ^[4]

However, as time moved on, the emergence of the analytical school of thought sealed the grave of natural thought. The analytical school focused on a more logical and societal approach in defining people, property, and rights. The analytical thinkers understood all people are not equally governed by the same natural laws. These thinkers understood the need for a more concrete form of governance and administration of society.

Some notable theories are:

1. State-owned property, the origin of property is to be traced back to the origin of law and the state. The supporter of this theory observed that property and law born together and would die together.
2. In Sociological Theory, property should not be considered in terms of private rights but should be considered in terms of social functions. 
3. In psychological theory, Jeremy Bentham believed that property came into existence on account of the acquisitive tendency of human beings.^[5] Every individual desire to own things and that brings into existence property.

In summary:

• Property can be transferred between its potential owner by any operation of trade.
• This property does not need to be in actual use, it can just stand as a staple of ownership.

The law makes a clear distinction between ownership and possession. The kinds of property can be summarized as mere possession, use, alteration, etc. In our case today, A tenant has the right of possession or occupation. The right of possession leads to various rights of use, depending on the nature of the object. Thus, the borrower of a book from a public library may use the book for his study. But rights of use do not include all rights of alteration.^[6]

Where is ‘Air-space’?

In the early 20^th century, During the convention relating to the regulation of aerial navigation, 1919^[7] signed in Paris first understood the concept of airspace. In the document, the concept of airspace covered article one through four begins as follows.

“The High Contracting Parties recognise that every Power has complete and exclusive sovereignty over the air space above its territory.

For the present Convention, the territory of a State shall be understood as including the national territory, both that of the mother country and the colonies, and the territorial waters adjacent thereto.”^[8]

The principle of airspace sovereignty was affirmed by the Paris Convention through the Regulation of Aerial Navigation (1919). Subsequently via various other multilateral treaties through time. This principle was again restated in the Chicago Convention on International Civil Aviation (1944)^[9].

“Airspace is now generally accepted as an appurtenance of the subjacent territory and shares the latter’s legal status.”^[10]

The basic principle of airspace is sovereignty which every state is entitled to. This principle enables states to regulate entry and exit policies as they deem fit, which all people will be subject to across the world.

In the Numbers game, there is no exact vertical limit on sovereign airspace, many countries in their limited capacities of operation suggest a limit of approx.. 30km which is the extent of the aircraft and balloons to around 160kms that concludes short stable orbits. The United Nations see astronauts as those people who have gone beyond the 80km vertical limit despite which, there is no clear understanding as to where airspace ends, and space starts or the dissemination between sovereign air space and space itself which is a common heritage for all mankind.

Air space has three general theories^[11] that lead to its inception in international law –

1. Theory of Unlimited freedom, Absolute freedom for anyone for the usage of airspace in the international community. This also applied to our navigation and development for all nations. This theory was however met with a lot of criticism on account of the international treaties at the time and the need for sovereign airspace for most countries.
2. Theory Absolute sovereignty, Opposing the theory of unlimited freedom, this theory sought to lock in all international usage freedom under the scope of sovereignty of a state. They argued that the air that was above them belonged to them alone as they are themselves a sovereign state.
3. Theory limited Sovereignty came from the principle that the atmosphere is subject to State power. However, it also introduced some limitations in the favour of air traffic, adequate means whose airworthiness was proved by international certifications. This theory anticipated the following regime which was based upon a functional and not just the spatial idea of air navigation.

In summary, state sovereignty in territorial airspace and its legal consequences cover:

• Freedom of air navigation inside non-territorial airspace.
• Nationality of aircraft including control, responsibility.
• Right of protection assigned to a registered state.
• Moral use of airspace through lawful means to suppress unlawful use of aircraft.
• Recognition of exclusive jurisdiction of the territorial state or state of the aircraft’s nationality; and
• Concurrent jurisdictions of other nation-states for civil aviation activities.

However, the concept of International limited sovereignty only exists when the member state acknowledges the treaties signed. There still exist few nation-states that do not fully acknowledge these principles and treaties. With the emergence of space law, the boundaries will become negligible as the horizons expand for humanity.

Air rights and principles in real estate

“Cuius est solum, eius est usque and coelum et ad inferos”^[12][13] –

Latin for, “whoever’s this soil, it is theirs, all the way to heaven and hell”.

A common principle followed in the concept of property law, air rights talk about the rights of a developer and owner of a particular land to have a vertical building that occupies airspace. In a time of ancient kingdoms, this phrase held no true value as much as it does now. As developers continue to scrape the skies above, the law must take into serious account the capacity to own property in the sky as real estate.

In the United States of America, the Federal Aviation Administration has the sole authority of regulation for all navigable airspace^[14]. the boundary between airspace staying private or converting to substantial impairment^[15] is often a debated topic. Modern engineers and the rate of expansion put the law in an exceedingly difficult position across the world, we will have nowhere to expand but into the skies above marking the sustained usage of air as real estate.

This new aerial property also brings into question other fundamentals of law, laws on privacy and laws of safety for the preservation of life to name a few. The popularity and emergence of the drone market is a testament that brings the mentioned laws into question. Navigable airspace and the limitation of property rights were questioned in the case of Boggs V. Merideth^[16].

In the current day, air space as property is looked at with extreme safety regulations. When considering skyscrapers, the regulation process is exceedingly long and is often rejected at the proposal stage. However, the law here must take the eyes of the pioneer and look ahead into the future. With the current rate of advancement, property in the sky is a plausible future both for ownership and development.

Conclusion

Private property or property ownership does exist in so far safety regulations and prior certification is procured prior or if the airspace in itself is sovereign under the eyes of one jurisdiction. We must also consider the use of international airspace for commercial purposes. The international community therefore must create certain pathways that can only be used for commercial traffic, this can give rise to the opportunity for the sale of air as property. As it stands now, its treaties and small principles are based on jurisdiction that looks at the ground as a reference point.

When considering the advancements of air and space law across the board, we the members of law are tasked with a challenge. The concept of legal jurisdiction cannot be still but must evolve into a flexible concept that can apply above the ground. Space, as it stands now, is the next frontier, this includes portions of airspace that we are not currently able to pierce but will be able to in the future.

References

[1] Salter, John. “Hugo Grotius: Property and Consent.” Political Theory, vol. 29, no. 4, 2001, pp. 537–555. JSTOR, www.jstor.org/stable/3072523. Accessed 8 May 2021.

[2] Locke, John, 1632-1704. The Second Treatise of Civil Government and A Letter Concerning Toleration. Oxford:B. Blackwell, 1948.

[3] SDM LAW NOTES, Theories of Property | Property Law – SRD Law Notes, (visited on 8th May 2021 at 5:00 PM).

[4] Locke, John, 1632-1704. The Second Treatise of Civil Government and A Letter Concerning Toleration. (chapter – 5) Oxford:B. Blackwell, 1948.

[5] The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.

[6] Sonal Gauttam, Property: Definition, characteristics and aspects / sociology, SOCIAL DISCUSSION, (visited on 10^th May 2021, 9:31 PM), PROPERTY: DEFINITION, CHARACTERISTICS AND ASPECTS | SOCIOLOGY (SOCIOLOGYDISCUSSION.COM).

[7] Convention Relating to the Regulation of Aerial Navigation Signed at Paris, October 13, 1919(Paris Convention) available at: CONVENTION RELATING TO THE REGULATION OF AERIAL NAVIGATION SIGNED AT PARIS, OCTOBER 13, 1919(PARIS CONVENTION) – ARCTIC PORTAL LIBRARY [accessed 9 May 2021].

[8] Convention Relating to the Regulation of Aerial Navigation Signed at Paris, October 13, 1919(Paris Convention), Art. 1, 1919.

[9] International Civil Aviation Organization (ICAO), Convention on Civil Aviation (“Chicago Convention”), 7 December 1944, (1994) 15 U.N.T.S. 295, available at: https://www.refworld.org/docid/3ddca0dd4.html [accessed 9 May 2021].

[10] Bin Cheng, Air law, BRITANNICA, (visited on 10th May 2021, 9:31 PM), Air law | Britannica.

[11] Sandeep Rana, theories of the legal status of air law, LEGAL SERVICE INDIA (Visited on 28^th May 2021, 10:10 AM), Theories On The Legal Status Of Air Law (legalserviceindia.com).

[12] “Cuius est solum, eius est usque and coelum et ad inferos.” A Dictionary of Law. Ed. Law, Jonathan.: Oxford University Press,. Oxford Reference. Date Accessed 28 May. 2021 <https://www.oxfordreference.com/view/10.1093/acref/9780199664924.001.0001/acref-9780199664924-e-4660>.

[13] Baron Bernstein of Leigh v Skyviews and General Ltd [1978] QB 479.

[14] 49 U.S.C. 180, 49 U.S.C.A. 18, § 40103.

[15] Branning v. United States 654 F.2d 88 (Fed. Cir. 1981).

[16] John David Boggs V. William H. Merideth No. 3:2016cv00006 – Document 20 (W.D. Ky. 2017).

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