A legal precedent for airspace

A few days ago, a woman went into labour and gave birth on a scheduled airline flight from Amsterdam to Boston [story]. At the time of the birth, the airliner was in Canadian airspace. The flight crew had considered diverting, but the doctors who were assisting (passengers called in to help) said there was no point, because the labour was happening so quickly. When the flight landed in Boston, U.S. immigration admitted the mother as a Ugandan citizen, but the baby as a Canadian citizen. Now the Government of Canada has agreed, and granted Baby Sasha Canadian citizenship [story].

Canadian soil

Anyone born on Canadian soil (other than a child of diplomats) is automatically a Canadian citizen, but what about someone born in Canadian airspace?

Here’s the problem: there are no customs requirements for entering Canadian or American airspace, when the final destination is not in that country — the pilot only has to be in contact with an air traffic control unit. Sometimes the controllers aren’t even from the same country: Canadian controllers in Toronto, for example, handle some U.S. airspace in Upper Michigan, while American controllers handle some Canadian airspace around Windsor, ON.

A new business opportunity?

That means that I could take off from the U.S. in a medevac-equipped Cessna Caravan with a woman about to give birth, get permission from American controllers to enter Canadian airspace, then circle over Windsor until the baby is born. Voilà! A new Canadian citizen!

To be honest, that sounds a little far-fetched as an immigration scam or as a grey-marked business model: it would be easier for the pregnant woman just to come into Canada as a tourist and give birth more comfortably on the ground. Besides, I’m hugely pro-immigration — I think Canada’s new immigrant communities are among its greatest strengths, and I welcome Baby Sasha as a fellow citizen.

Whose laws?

Still, it’s an interesting precedent that someone who was never vetted by immigration officials can still be considered to be “in Canada”. My concern is that it might lead to both Canada and the U.S. imposing new restrictions on foreign planes using their airspace.

In 10 years, will Canadian G.A. pilots still be able to take the shortcut across Maine to Nova Scotia, for example, just by making a quick radio call to Boston Center and getting a squawk code, or will we have to file paperwork five days in advance and wait for approval from Washington? Does that mean that Canadian law now applies to passengers while they’re in Canadian airspace (not just aviation regulations, but other laws)? Will Saudi laws about alcohol and women’s clothing apply to passengers in an airliner while it’s passing over Saudi Arabia?

Stay tuned.

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About David Megginson

Scholar, tech guy, Canuck, open-source/data/information zealot, urban pedestrian, language geek, tea drinker, pater familias, red tory, amateur musician, private pilot.
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5 Responses to A legal precedent for airspace

  1. Blake says:

    Re: Laws.

    I was always under the impression that the laws of the country who’s airspace you are over apply to you. However, in international airspace, the laws of the country from which the aircraft is registered in applies.

    Similar to how marine laws are applied.

  2. david says:

    Certainly, that’s how the air regulations apply to the pilot — I have to follow U.S. air regulations when I’m PIC in the U.S. airspace — but I don’t know if it’s clear how regular law applies to passengers.

    Does an airliner flying from London to Beijing stop serving alcohol and ask women to cover their faces when they’re flying over Saudi Arabia, for example? (Or does Saudi law have a special exemption for foreign airline passengers?) Could someone with a nude picture of a 19-year-old model stored on his/her laptop be charged with possession of child pornography if the airliner overflies a country where the age of consent is 21? What if you’re having a casual conversation about abortion with the 17-year-old in the seat beside you, and your airliner overflies a U.S. state where it’s illegal to counsel minors about abortion?

  3. Blake says:

    I wasn’t clear in my original comment. I meant, it applied to passengers as well as pilots.

    Whenever I was on over seas flights (to the UK, Australia, Singapore) I’ve always heard the f/a’s speak over the PA saying that drink service has been terminated because we’re entering so-and-so’s airspace and their laws prohibit serving alcohol or something.

    I’m being extremely vague here as my memory about the particular incidents is fuzzy.

  4. Aluwings says:

    How interesting!

    In a related story … A few years ago, a flight from the Caribbean heading to Toronto, Canada needed to make an unscheduled stop in Buffalo. Upon arrival the US officials ran through the passenger manifesto and discovered someone on board who was wanted on a tax-evasion charge.

    Mr. X was deplaned to face charges. Surprise! While his Canadian wife was forced to stay on board and continue to Toronto. I can imagine the look on this guy’s face when the Captain made that PA announcement that the flight was diverting to a US destination.

    Now, in an extension of this, could US sky marshalls track wanted criminals who are booked on over-flights? Then arrange to be on the same aircraft and make the arrest as soon as it enters US airspace? The mind boggles.

  5. Bianca says:

    On what we have studied, the citizeship should be pattern on the exact location where the baby was born including the whole territory.

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