Who Owns the Sky? The Struggle to Control Airspace from the Wright Brothers On by Stuart Banner. Harvard University Press, 2008, 360 pp.
Like most lawyers, Stuart Banner writes very well. A professor of law at the University of California, Los Angeles, he previously published Possessing the Pacific and How Indians Lost Their Land. For most readers, this work goes into much more detail than needed. It will be a good refresher for judge advocate general officers, however.
For the fliers, Banner explains how new legal problems arose from flight and how they were either resolved or became irrelevant. They will recognize the origins of many of the federal aeronautical regulations and that part of aviation law emerged from maritime practices of past eras. Banner thinks technology is an important driver of the development of law, and in large part, law arises from customary practice, not the reverse.
Lawyers tried to apply the ancient laws of nuisance and trespass to new problems arising from aviation. They held that the property owner possessed the regions below his property to the center of the earth and the space above it to the outer limits of space. For aviators to ask permission from every property owner beneath their flight would have crippled the industry’s development. So ultimately, flight across those lands was to be free from trespass violations above a certain altitude (500 feet in rural areas). A good deal of angst arose from the traditional laws on nuisance, but most property owners lost out to the aviation industry—but it was enough to cause many airports to be developed far from the center of urban areas to avoid the problem. In the end, the property owners did not own the airspace above their land.
At the national level, the outcome was exactly the opposite. World War I made it clear that governments could not fulfill their most fundamental responsibility, security, without sovereign control of the airspace above their territory. In the United States the problem was complicated by the federal form of government, but it was resolved in favor of the central authority. As a result of the expansion of aviation capabilities during World War II, the rules for operation over non-national airspace (over the sea, for example) were established by international treaty.
Finally, the development of space flight determined that above a certain altitude, there would have to be a common or public domain. The Soviets helped resolve that with launching Sputnik, overflying numerous sovereign territories without permission. Both superpowers saw the advantage in the freedom of space and that attitude prevailed. Nonetheless, many arguments ensued in the legal community over defining the exact boundary between air and space, but that did not matter much to nations and other professions.
Banner’s encyclopedic knowledge of the history of aviation law and excellent writing style are most impressive. However, the detailed explanations, while interesting to lawyers, are more than what most readers need and on the tedious side.
David R. Mets, PhD
Air Force Research Institute