This was the core question for the Airspace Tribunal on 21 September at Doughty Street Chambers, where the case for and against the recognition of a new human right to protect the freedom to exist without physical or psychological threat from above was examined. Drawing on wide expertise and experience, it engaged the public in discussion to challenge the narrow terms by which airspace is represented and defined in law.
One of the invited expert presentations came from BU scholar Dr Melanie Klinkner. Her focus was on conceptualising the new right as an interest-based right, whereby a right is justifiable for its ability to secure the necessary conditions of human well-being. Air mass as a natural resource is necessary for the survival of human kind. She examined what a formal codification and adoption of this new right achieve that other rights are not already safeguarding.
The rationale for the Airspace tribunal is clearly articulated by the project’s initiators Nick Grief and Shona Illingworth from the University of Kent:
Over the last century, humans have radically transformed airspace: chemically, territorially, militarily and psychologically. Technological developments mean that this transformation is accelerating and growing in complexity. There is widening disparity in the global landscape of power, with civilians increasingly subject to expanding commercial and military exploitation of technology in airspace and outer space and to the consequences of environmental change. The associated threats are not adequately addressed by the contemporary legal framework. There is an urgent need for new thinking. One aspect of airspace requiring development is the human rights dimension’ (Nick Grief, Shona Illingworth, Andrew Hoskins and Martin A. Conway, Opinion, ‘The Airspace Tribunal: Towards a New Human Right to Protect the Freedom to Exist Without Physical or Psychological Threat from Above’  European Human Rights Law Review, Issue 3, 201).
The Airspace Tribunal is part of and will inform the development of Topologies of Air, a major new body of artwork by Illingworth, commissioned by The Wapping Project, that will be exhibited at The Power Plant, Toronto in 2020.