Suggestions on the amendment to the Regulations of the People's Republic of China on Airspace Management (Draft for Comments).

After reading the Notice on Soliciting Opinions on the Regulations of the People's Republic of China on Airspace Management (Draft for Comments) on the Internet, the author studied the Draft for Comments, and suggested that the first paragraph of Article 3 (the first paragraph of Article 3 of the Regulations of the People's Republic of China on Airspace Management (Draft for Comments) stipulates: "Airspace is an important strategic resource of the country and belongs to the state. Ownership of airspace resources is exercised on behalf of the State by the National Air Traffic Management Authority. ) to national sovereignty and to modify the expression. The specific reasons and proposed amendments are as follows:

1. The law does not provide for the ownership of national airspace

The content of the Property Law is basically all included in the Civil Code, and there are very few changes. The legislative materials of the Property Law can be used as a reference for the interpretation of the Civil Code, which is the basic application of the legislative interpretation method. The following uses a variety of legal interpretation methods to argue that mainland law does not provide for the state's ownership of airspace.

Article 45 of the Property Law stipulates that "property that belongs to the State as prescribed by law belongs to the State, that is, to the whole people." "This provision is interpreted to mean that property that belongs to the State by law belongs to the State;

After article 45, articles 46 to 55 of the Property Law enumerate property belonging to the State, which does not stipulate that the airspace belongs to the State. From the point of view of literal interpretation and system interpretation, airspace does not belong to the state.

Article 48 of the Property Law stipulates that: "Natural resources such as forests, mountains, grasslands, wastelands, and tidal flats shall be owned by the State, except for those that are collectively owned by law." "It has been argued that airspace is part of natural resources and that according to this article, ownership of airspace belongs to the State. From the literal interpretation, the natural resource items that are not explicitly listed in the "other natural resources" stipulated in Article 48 should be similar to the natural resources listed above, such as forests, mountains, grasslands, wastelands, and tidal flats, and belong to the concept of "things" and are tangible; In addition, the word "etc" here may only be for the sake of flow of the sentence and has no practical meaning. For example, in Chinese, it is often said that "Zhang San, Li Si, Wang Wu and others participated in some activities", and the word "etc" here does not mean that there are other people. In addition, in the process of formulating the Property Law, it was suggested that the word "etc." be deleted, because it was easy to be ambiguous, and the legislator retained the word "etc." in order to maintain consistency with the first paragraph of Article 9 of the Constitution. From the perspective of this legislative process, it is also not possible to interpret the airspace as belonging to the State on the basis of article 48 of the Property Law.

The Interpretation of the Property Law, compiled by the Legislative Affairs Committee of the National People's Congress, points out in the interpretation of Article 45: "Some believe that the state-owned property specifically listed in this Law is not comprehensive enough, and it should be added that the airspace, waterways, channels, uninhabited islands, and germplasm resources belong to the state." Considering that the scope of state-owned property is very broad and it is difficult to list them all, there is also controversy as to whether some of the contents of the proposed additional provisions are things under the property law. Therefore, this article provides a general definition of the scope of State property: 'The law provides for property that belongs to the State, and belongs to the State, that is, to the whole people. and on the basis of the provisions of the law in force, the property owned by the State is enumerated. Where there are no provisions in existing laws or administrative regulations, specific provisions may be made when formulating or revising laws on the basis of this article. From this narrative, it can be seen that articles 46 to 55 of the Property Law have completely enumerated the state property in the current law. If the current law considers the airspace to be owned by the State, it is entirely possible to add "airspace" after the words "mineral deposits, currents, and sea areas" in Article 46, which is not provided for in the Property Law, and it can be interpreted that the airspace does not belong to the State under the current law.

According to Articles 70 and 71 of the Civil Aviation Law of 1995 and Article 3 of the Measures for the Use of Airspace by Civil Aviation in 2004, some people have inferred that flight schedules are also national resources. This point of view can be explained from the following perspectives. First, Article 71 of the Civil Aviation Law stipulates that "the division of airspace shall take into account the needs of civil aviation and national defense security as well as the interests of the public, so that the airspace can be used reasonably, fully and effectively", and Article 72 stipulates that "the specific measures for the management of airspace shall be formulated by the State Council and the Central Military Commission". These two provisions clearly do not stipulate that airspace belongs to the State. According to Article 45 of the Property Law, only the law has the power to stipulate whether a property is owned by the state, and the Measures for the Use of Airspace by Civil Aviation issued by the Civil Aviation Administration of China in 2004 are departmental rules and have lower effect than the law, and have no right to stipulate the ownership of property. In addition, the "Property Law" is later than the 1995 "Civil Aviation Law" and the 2004 "Measures for the Use of Airspace by Civil Aviation", if these legal documents have already stipulated that the airspace belongs to the state, the "Property Law" will naturally clearly stipulate that the airspace belongs to the state, but the "Property Law" does not provide for the ownership of airspace. Therefore, these two legal documents cannot be relied upon to interpret airspace and time as belonging to the State.

It has also been argued that the state has sovereignty over the airspace and therefore the state has ownership of the airspace. This viewpoint is also difficult to justify from the perspective of legal theory and the current legal system. Article 1 of the Convention on International Civil Aviation (also known as the Chicago Convention of 1944) clearly stipulates that "the Contracting States recognize the complete and exclusive sovereignty of each State over the airspace above its territory". This article is a confirmation of customary international law that states have sovereignty over airspace (see Zhao Weitian, International Air Law, Social Sciences Academic Press, 2000, p. 22). ）。 Article 2 of the Civil Aviation Law of the People's Republic of China stipulates that the People's Republic of China enjoys complete and exclusive sovereignty over its territorial airspace. Internally, it is the supreme power of the state, that is, the state enjoys the right of territorial superiority and personal superiority over all people, things and things within its territory and its own people outside the territory, and externally it refers to the independent right of the state, that is, the right to participate in international relations independently and on an equal footing.

State sovereignty is essentially a right of management, not ownership. Judging from the current legal system, although the People's Republic of China has national sovereignty over its territory, not all land on the mainland is owned by the state. According to Article 10 of the current Constitution, land in urban areas is owned by the State, and land in rural areas and suburban areas is collectively owned, except as provided by law. This provision makes it clear that the subject of land ownership on the mainland includes the State and several collectives. Before the promulgation of the 1982 Constitution, the land in the cities was not owned by the State. State sovereignty and ownership are different levels of legal concepts, with sovereignty falling under the category of public law and ownership falling under the category of private law. Therefore, the state does not directly have ownership of the territory or airspace because of its sovereignty over the territory and airspace. Whether or not the state has ownership of territory and airspace depends on the specific laws and regulations. Currently, continental law does not provide for state ownership of airspace.

In short, according to the current legal provisions, none of the airspace belongs to the state and is not a state-owned asset.

2. Airspace is a public resource

Public resources have different criteria for judging in economics and law. In economics, a public resource is a resource that is competitive but not exclusive in consumption, and one person's use of a public resource reduces the use of it by others, but one cannot prevent others from using that resource. There are also economists who refer to public resources as shared resources. To refer to public resources as shared resources is to link law and economics. According to the subject, the property right can be divided into the property right of a single subject and the property right of a large number of subjects. The property right of a single subject is the property right owned by a single subject. State ownership is the property right of a single subject. The real right of the majority of subjects is the real right jointly owned by two or more subjects in the subject matter, which is also called joint real right in law. In the history of the development of law, there are multiple forms of common relations, including co-ownership, co-ownership, general ownership, and joint ownership (Sun Xianzhong, Principles of China's Property Law, Law Press, 2004, p. 44). ）。 At present, the Property Law of the People's Republic of China stipulates that there are two types of common property rights according to shares and joint ownership, and there are no other common property rights. It should be noted that the fact that the Property Law does not provide for other joint property rights does not mean that there are no other joint property rights. People's right to walk on the road, the right to breathe air, etc., are all common property rights, and these rights are not legally stipulated, but are de facto property rights. The right of airlines to use airspace and flight schedules is also a de facto form of joint property right.

Public resources are resources that do not belong to any single social subject, but belong to resources owned by several subjects. If a resource belongs to a subject, it is not a public resource, but a resource in which a single subject has ownership. Therefore, a resource cannot be both a public resource and a resource owned by a single subject, i.e., if the airspace is owned by the state and is a state-owned resource, then it will not be a public resource, and if the airspace is a public resource, then it will not be a state-owned resource. On the mainland, airspace is a resource shared by various social subjects, and the law does not stipulate that it belongs to the state, that is, public resources.

3. The object of airspace ownership conflicts with the object of land ownership

(1) The object of airspace ownership

Paragraph 1 of Article 3 of the Draft for Comments stipulates that "airspace is an important national strategic resource and belongs to the state. Ownership of airspace resources is exercised by the national air traffic management authority on behalf of the state". This article stipulates the ownership of airspace resources by the state, but the Consultation Paper does not clearly stipulate the object of national ownership of airspace resources.

From the perspective of legal theory, in order to establish the ownership of national airspace resources, it is necessary to clearly stipulate the object of the ownership of national airspace resources, that is, the scope of airspace that the state has ownership of, and to stipulate the scope boundary of airspace, including the boundary of horizontal range and vertical range. From the point of view of domestic legislation, the boundary of the vertical scope is more critical, as it directly relates to the delimitation of the boundary of the object scope of airspace ownership and land ownership.

Chapter 3 of the Draft for Comments, "Airspace Classification and Classification", can provide a reference basis for determining the scope of the subject matter of airspace resource ownership.

Article 12 [Airspace Level] Taking into account factors such as flight rules, airspace environment, aircraft performance, and air traffic services, airspace is divided into controlled airspace (categories A, B, C, D, E) and unregulated airspace (categories G and W).

Class A airspace is usually a space with a standard air pressure altitude of 6,000 meters or more and a standard air pressure altitude of 20,000 meters (inclusive).

Category B airspace is usually located over civil transport airports.

Class C airspace is usually located over civilian general airports with towers.

Category G airspace is usually the airspace below 300 meters above true altitude outside of Class B and C airspace (except for Class W airspace), and the airspace with an average sea level altitude of less than 6,000 meters and no impact on military flights and civil aviation public transport flights.

Class W airspace is usually part of the airspace below 120 meters above true height in Class G airspace.

Class D or E airspace is a space other than Class A, B, C, G, and W airspace, which can be selected according to operational and safety needs. Among them, the standard air pressure altitude above 20,000 meters is uniformly classified as Class D airspace.

The specific methods and access conditions for airspace classification shall be formulated and issued by the office of the national air traffic management leading institution.

If the author's understanding is correct, according to the above provisions, the entire airspace of the mainland is divided into two categories and seven subcategories, controlled airspace (A, B, C, D, E) and unregulated airspace (G, W), and these seven sub-categories constitute the object of national airspace ownership. Airspace other than this is not the subject of national airspace ownership, such as space above 20,000 meters in the standard air pressure of continental airspace.

Category W airspace is the airspace with the lowest degree of control, which is part of the airspace below 120 meters above true height in Category G airspace. The upper limit of its vertical range is 120 meters above true height, and there is no indication of what the lower limit of the vertical range is. According to the general understanding, the vertical range of Class W airspace is 0 meters to 120 meters above true height, and the range of Class W airspace is up to 120 meters above the land surface. If this is the case, the object of airspace ownership overlaps with the object of land ownership.

(2) The object of land ownership

The object of ancient land ownership includes the land itself and the space above the land, up to the sky, down to the Yellow Spring, and the space where there is no space right. With the development of modern society, space and underground have new uses, and the scope of the object of land ownership has also become smaller.

According to the current theory of property law in mainland China, the object scope of land ownership extends to a certain range of space above and below the land in addition to the ground (Liang Huixing, Property Law, Law Press, 7th Edition, 2020, p. 41). ）。 It includes the land itself, as well as the spatial extent of a certain height above ground and the extent of land at a certain depth underground. This is because the use of land to grow crops and trees, and to construct buildings and structures, requires a certain range of space, and if the object of land rights does not include space above the ground, then planting crops, trees, and building buildings will infringe on the right to airspace, which is not feasible.

(3) The objects of airspace ownership and land ownership conflict with each other

Based on the above analysis, it can be seen that the scope of Class W airspace is the space above the ground to a height of 120 meters, and the object of land ownership includes the space at a certain height above the ground, which is not stipulated by law. Obviously, the space within a certain height on the ground belongs to both the object of land ownership and the object of national airspace ownership, which constitutes one thing and two rights, which should not appear in property law.

In order to regulate national airspace ownership, it is necessary to clearly define the lower vertical range of the airspace ownership object to avoid conflict with land ownership, which is technically and legislatively difficult to achieve.

In fact, Class B airspace is usually located over civil transport airports, and Class C airspace is usually located above civil general airports with towers, and land use within a certain range below these two types of airspace is restricted. However, this restriction is not achieved through ownership, but through administrative power.

Fourth, it is difficult to construct airspace usufruct rights and security rights

If the national airspace ownership is established, but the state does not directly use the airspace, other entities need to create usufruct rights when using the airspace. The most typical is the use of airspace for passenger and cargo flights.

Referring to the land usufruct right, the airspace usufruct right needs to set the physical scope and time range of the object of the right, including the up, down, left, right, front and back range boundaries and time range of the airspace, that is, which airspace is used in which period of time.

Since the establishment of the usufruct right in airspace is to use the airspace to operate the aircraft, it is necessary to clearly set these elements before use, establish the registration of the usufruct right, and use the usufruct right in accordance with the scope of the right to use the airspace to fly flights. However, there are many uncertainties in the operation of flights, such as flight delays, flight altitude decisions based on controllers' instructions during flights, flight diversions, etc. The occurrence of these situations will make the aircraft operation unable to use the airspace according to the scope and time of the airspace set by the usufruct right, and may even infringe on the usufruct right of others.

Therefore, it is difficult to set up airspace usufruct rights in national airspace ownership.

A comprehensive study of the Consultation Paper shows that the Consultation Paper does not contain any provisions on the usufruct rights of airspace, nor does it have any provisions on the exercise of national airspace ownership by the national air traffic management leading authority, which is inconsistent with the establishment of national airspace ownership, or even contradictory.

5. The air traffic control agency exercises the right to manage airspace

Looking at the Consultation Paper, the national air traffic management authority exercises the right to manage airspace and sets rules on how to use airspace safely and efficiently, but does not set rules for national ownership.

For a long time, our understanding of the identity and functions of the state was vague. Since the reform and opening up, with the deepening of theoretical research and legislation, the identity and functions of the state have gradually become clear. From the point of view of different identities, the state has different functions and powers (rights).

In terms of domestic law, the state has two identities, one is the manager of public affairs, and the other is the owner of state-owned assets. As a manager of public affairs, the function of the state is to use the collected taxes and other revenues to manage social and public affairs and serve the society, and in the process of service, it cannot seek its own interests. As the manager of state-owned assets, the state should manage the property owned by the state for the purpose of seeking economic interests and maximizing interests. The two functions of the government cannot be exercised at the same time, that is, it manages both social and public affairs and state-owned assets, and seeks benefits in the process of serving society. This division is clearly defined in the Regulations on the Supervision and Administration of State-owned Assets of Enterprises in 2003 and the Law on State-owned Assets of Enterprises in 2008.

Article 7 of the Regulations on the Supervision and Administration of State-owned Assets of Enterprises stipulates: "The people's governments at all levels shall strictly implement the laws and regulations on the management of state-owned assets, adhere to the separation of the government's social and public affairs management functions from the functions of the investors of state-owned assets, adhere to the separation of government and enterprises, and implement the separation of ownership and management rights." State-owned assets supervision and administration institutions do not exercise the government's social and public affairs management functions, and other government agencies and departments do not perform the duties of investors of state-owned assets of enterprises". In 2003, the State Council established the State-owned Assets Supervision and Administration Commission (SASAC), an ad hoc agency directly under the State Council, which marked the beginning of a clear separation between the functions of the mainland government's management of social and public affairs and the functions of owners of state-owned assets. Article 6 of the 2008 Law on State-owned Assets of Enterprises also clarifies the principle of separating the government's functions of managing social and public affairs from those of investors of state-owned assets.

Article 3 of the Civil Aviation Law of 1995 stipulates that: "The competent civil aviation department of the State Council shall exercise unified supervision and management over civil aviation activities throughout the country, and shall issue regulations and decisions on civil aviation activities within the authority of this department in accordance with the law and the decisions of the State Council." Article 70 stipulates: "The State shall exercise unified management of airspace". From these two provisions, it can be seen that the Civil Aviation Administration of China (CAAC) manages civil aviation activities and airspace as a subject of public law, and performs the management function of social and public affairs.

Comprehensive analysis shows that the national airspace management authority manages the airspace to exercise the management function of social and public affairs, and it is sufficient to have administrative power, and there is no need to stipulate the ownership of national airspace.

The sub-provisions of the Draft for Comments stipulate the administrative powers of the national airspace management agency, and do not stipulate any right to exercise property rights. Professor Sun Xianzhong, a well-known expert in civil law, pointed out in his monograph "Research on State Ownership" that in the legislation of the mainland, the ownership of many countries actually stipulates state sovereignty, or administrative power based on state sovereignty. Looking at the Consultation Paper, which only stipulates the national ownership of airspace, but does not stipulate the corresponding usufructuary rights and security rights, nor does it stipulate the method of exercising the ownership of national airspace, it can be determined that the national ownership of airspace in the first paragraph of Article 3 actually means national sovereignty.

Therefore, the non-regulation of national airspace ownership will not affect the airspace management order in the slightest.

6. Administrative regulations do not have the right to set the ownership of national airspace

Article 116 of the Civil Code stipulates that "the type and content of property rights shall be prescribed by law. This is the legal principle of property rights, and the types and contents of property rights can only be prescribed by law. The law here is a law in the narrow sense, which only refers to the laws enacted by the National People's Congress and its Standing Committee, and does not include administrative regulations formulated by the State Council. According to the legal principle of property rights, administrative regulations do not have the right to create property rights, and can only be refined within the types and contents of property rights prescribed by law.

The Regulations of the People's Republic of China on Airspace Management will be promulgated and implemented as administrative regulations and military regulations of the State Council. In the absence of national airspace ownership in mainland law, there is no legal basis for the Regulations of the People's Republic of China on Airspace Management (Draft for Comments) to establish national airspace ownership.

Taking a step back, if there is a dispute as to whether mainland law provides for the ownership of national airspace, the Regulations may also not provide for the ownership of national airspace. If the higher-level law does stipulate the ownership of national airspace, the "Regulations of the People's Republic of China on Airspace Management" can be implemented directly and in detail, and there is no need to establish national airspace ownership.

7. Suggestions for amendments

Article 2 of the Civil Aviation Law stipulates that "the airspace above the territorial land and territorial waters of the People's Republic of China shall be the territorial airspace of the People's Republic of China. The People's Republic of China enjoys complete and exclusive sovereignty over its airspace. Article 70 stipulates: "The State shall exercise unified management of airspace. Article 72 stipulates: "Specific measures for airspace management shall be formulated by the State Council and the Central Military Commission."

According to the above provisions, it can be determined that the national airspace management authority implements the management of airspace on the basis of the administrative power based on national sovereignty. It is suggested that the first paragraph of Article 3 be amended with reference to the Civil Aviation Law to read:

Option 1:

Airspace is an important strategic resource of the country, and the country enjoys complete and exclusive sovereignty. The national leading body for air traffic management implements unified management of airspace on behalf of the state.

Option 2:

The People's Republic of China enjoys complete and exclusive sovereignty over its airspace. The national leading air traffic management agency implements unified management of airspace.

Option 3:

The state implements unified management of airspace.

Option 4:

Delete article 3, paragraph 1

The above suggestions are for reference only.

(This article is a legislative proposal submitted to the Office of the National Air Traffic Management Commission, published in Civil Aviation of China [2024] No. 2)