This article is written by Nick Grief, Professor of Law, University of Kent and Shona Illingworth, Reader in Fine Art, University of Kent Republished from The Conversation under a Creative Commons license. Read the original article.The opinion of the authors does not necessarily correspond with that of the editorial team.


In little more than 100 years, humans have radically transformed the sky: chemically, territorially and militarily. In this increasingly contested space, technological developments are accelerating the transformation. New forms of military and commercial exploitation are increasing the disparity of power between those who dominate airspace and outer space, and the billions of people on the ground affected by the impacts.

People are increasingly vulnerable to being tracked, watched and targeted from above. The use of combat drones is escalating and new robotic assailants are being developed. Individuals are at growing risk of being tracked and targeted through data mining. For instance, geolocating via smartphones and mapping geotagged photographs reveal a person’s “patterns of life”.

Meanwhile, emerging developments in atmospheric geoengineering technologies designed to combat global warming raise major ethical concerns in terms of climate governance and its potential impact on people on a global scale.

The psychological impacts of unrelenting threats from the sky are debilitating and long term. And so in this rapidly changing world, human rights protection needs to evolve. It is in this context that, as argued recently in the European Human Rights Law Review, we propose the recognition of a new human right to protect the freedom to live without physical or psychological threat from above.

Airspace

The principle that every state has complete and exclusive sovereignty over the airspace above its land and sea territory, declared by the Chicago Convention on International Civil Aviation 1944, is a universally accepted principle of international law. It was first proclaimed in the Paris Convention for the Regulation of Aerial Navigation 1919, not long after the first full-scale use of airborne chemical warfare at Ypres in World War I in 1915.

Airspace traditionally signifies “the spatial dimension where states exercise their jurisdiction or control for aviation and defence”. Airspace is therefore considered to be an area-based concept. But this does not account for the complex and diverse ways in which the sky is used, impacted on or exploited, or for how it is valued, understood and experienced across different cultures. The reach and impact of activities in airspace increasingly transcend territorial boundaries.

Beyond airspace lies outer space. As declared by the Outer Space Treaty 1967, outer space is not subject to national appropriation by claim of sovereignty, by use or occupation, or by any other means. The boundary between airspace and outer space has not yet been defined but the resolution of that issue is less urgent than how we protect people from threat or harm from the space above our heads, regardless of the latter’s legal status.

Introducing human rights

Given the limited representation of airspace in international law, and in the context of accelerating geopolitical, technological and environmental change, we need to radically reassess how we perceive airspace in the legal sense.