We Need a New Human Right – To Protect Our Freedom to Live Without Threat from the Skies

Nick Grief explores the limited representation of airspace in international law and technological change.

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 Treaty1967, 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.

A key aspect of the legal framework of airspace in need of further development is the human rights dimension. Some might argue that the freedom to live without physical or psychological threat from above is already covered by existing rights, such as the right to life or the right to freedom from inhuman or degrading treatment.

But there is precedent for human rights which were once subsumed within broader rights or freedoms becoming specifically identified and explicitly protected as thinking and needs evolve. For example, freedom of the arts and sciences as proclaimed in the Charter of Fundamental Rights of the EU has been carved out of the freedom of thought and expression.

Similarly specific and explicit human rights protection is required in the face of the rapidly changing nature and use of airspace. We need to anticipate future developments and interrogate and challenge the narrow terms by which airspace is defined and represented in law.

The Airspace Tribunal

Our hypothesis is being tested at a people’s tribunal in a series of hearings around the world. This “Airspace Tribunal” has begun to do this by engaging experts, audiences and the wider public in dialogue and debate about the rapidly changing use of airspace.

The inaugural hearing, held in London in September 2018, involved representations on a range of key issues, including those detailed above. Further hearings will take place around the world to ensure that thinking is shaped by a rich and vital diversity of expertise, experience and perspective. As befits a people’s tribunal, the public audience at our hearings are the judges, challenging the traditional state-centric view of how international law is created.

The hearings are being recorded and transcribed to document the drafting history of the proposed new human right. Ultimately, our intention is to present states and international organisations with a compelling people-focused proposal.

As we approach the 70th anniversary of the Universal Declaration of Human Rights and the centenary of the Paris Convention, the combined physical and psychological impacts of these growing threats from the air require a correspondingly radical response. Human rights as a tool for ensuring human dignity and peaceful existence must be dynamically engaged with the fast evolving threats and conditions of our time.

Nick Grief practises at the Bar from Doughty Street Chambers which hosted the London hearing of the Airspace Tribunal. The London hearing of the Airspace Tribunal was supported by The Wapping Project, Doughty Street Chambers and the University of Kent. The hearings are also contributing key research and discussion towards Shona Illingworth’s new body of work commissioned by The Wapping Project, Topologies of Air, which will be exhibited at The Power Plant in Toronto in 2020 and then tour internationally.

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Image credit: Flight paths. jal33/flickr, CC BY