by Shakhriyor Abdubakiyev and Nilufarkhon Mahkmudova
Image source: www.bbc.com
November 20, 2021

Introduction

While it has been decades since states started using the space for scientific, civil, and military purposes, private actors are also coming into the game nowadays.  It’s no secret that Tesla and SpaceX co-founder Elon Musk and Amazon co-founder Jeff Bezos are also launching into space.  What about us?  With the help of young Ziyadulla Butakhanov’s NazarX project, Uzbek technicians could also launch a mini-satellite into space and photograph the Earth at an altitude of 42,671 meters above the stratosphere.  This was, of course, one of the first space projects in the history of Uzbekistan.

Let’s think about the legal aspects of this event.  What rights did Butakhonov have regarding the airspace of Uzbekistan?  More specifically: How is the right of citizens to use the airspace for commercial purposes regulated in Uzbekistan?  Or to what extent are space zones being liberalized for commercial purposes in Uzbekistan while the number of commercial projects in this field in the world is growing and competition is intensifying?  This blog post examines answers to such kinds of legal questions.

Regulation of space activities in the Republic of Uzbekistan

Uzbekistan has a number of space laws.  First of all, according to Article 42 of the Constitution, everyone is guaranteed the freedom of scientific and technological creativity, the right to enjoy cultural achievements. The state, in turn, cares for the cultural, scientific, and technical development of society. In addition, certain articles of the Air Code regulate the participation of non-governmental organizations and citizens in the development and implementation of measures for the use of airspace.  According to Article 7 of the Air Code, the users of the airspace of the Republic of Uzbekistan are enterprises, institutions, organizations, and citizens of the Republic of Uzbekistan.

Moreover, Article 5 stipulates that commercial, public, and other non-governmental organizations and citizens have the right to develop and implement measures for the rational, efficient, and safe use of airspace and aviation activities.  Government agencies will consider the suggestions of commercial, public, and other non-governmental organizations and citizens in developing and implementing the above measures.  It turns out that not only has Butakhanov the right to use airspace but also the government shall consider the proposals by Butakhanov and other young people and other organizations.

However, under Article 11 of the Code right to use airspace is subject to compliance with the necessary security measures, and the usage of airspace is allowed only after obtaining permission through the Department of airspace use (DAU). Thus, using the airspace without acquiring permission from the authoritative bodies shall constitute a violation of the Air Code.

Naturally, another question arises.  Could Ziyodulla’s balloon be a flying device under the Air Code?  According to Article 23 of the Code, aviation is divided into civil, state, and experimental aircraft depending on the aircraft type.  Aviation, intended for experiment design, experimental, scientific research, and testing in the field of aviation and other technics, refers to experimental aviation. According to the above article, Butakhanov’s mini-satellite is an example of an experimental aircraft.

Also, Article 95 of the Code states that aviation work is understood to mean specialized operations performed on a commercial basis by means of aviation. The list of services related to aviation work is established by the Aviation Administration of the Republic of Uzbekistan. The list, adopted on 12 February of 2009, does not include modern commercial aviation services such as satellite services which actually can be taken up by private entities.

It should be noted that Ziyodulla Butakhanov’s plane landed not in the Republic of Uzbekistan but the territory of the neighboring Kyrgyz Republic.  This means that the aircraft crossed the air border from one country to another.  This is stipulated in Article 74 of the Code.

    Article 74 International flights of the Republic of Uzbekistan

    For the purposes of this Code, an international flight shall be understood as the flight of an aircraft crossing the border of a foreign state.

    International flights of the Republic of Uzbekistan:

    a) international agreements of the Republic of Uzbekistan;

    b) based on special permits issued for individual flights by the competent authorities of the respective foreign states.

    Aircrafts of the Republic of Uzbekistan may operate separate international flights with the permission of ministries, state committees, agencies, organizations, and citizens who own or belong to these aircraft.

Analyzing this article, state bodies require special permits from the Ministry of Defense and the Cabinet of Ministers for flights in transnational directions (crossing another state airspace). Furthermore, such an international flight requires the permission of the Kyrgyz Republic’s competent authorities. If carried out without a permit, such flights pose a threat to Uzbekistan and another country’s airspace, leading to sanctions by law enforcement agencies. It is a miracle that Butakhanov, who landed without state permission, was released by Kyrgyz special services.

Comparative-Legal Analysis: The U.S. practice and shortcomings in the Uzbek system

Let’s take a brief look at the U.S. experience as a leading country in this field.  The U.S. National Space Policy Book, approved December 9, 2020, states that licenses for commercial space flights in the United States are issued by the Federal Aviation Administration (FAA).  And one permit is enough for multiple flights. It should also be noted that the state does not build the aircraft itself but gives them to private companies on a tender basis and buys the best one.  This will lead to the acquisition of the best option and healthy competition in the field.  The U.S. space economy is worth $ 345 billion which is almost 6 times bigger than the GDP of Uzbekistan in 2020. According to the FAA, the development of the industry is accelerating due to such facilities. In 2016 alone, the United States earned $ 6 billion from space that year.

Comparing the flight regulation between the United States and Uzbekistan, the US Federal Aviation Administration issued almost all flight permits.  This is allowed only after separate approval by the Cabinet of Ministers, the Ministry of Foreign Affairs, the Ministry of Defense, and the Aviation Administration in Uzbekistan.  So, in theory, Uzbekistan has a similar system. Yet, the Uzbek system includes a lot of paperwork and is a waste of time. This factor, in a sense, hinders the development of the industry.  In fact, as a result of such a bureaucracy, no commercial company in our country has yet registered space projects.  This means that there is still no private company in Uzbekistan engaged in commercial projects in space.

However, when it comes to private airlines, according to internet sources, ​​the first private airline in Uzbekistan was Qanat Sharq, registered in 1998. At least two new airlines are expected to be established in Uzbekistan by the end of this year.  One of the airlines could be called Air Marakanda.

It should also be noted that restrictions in other areas of aviation have not yet been lifted, and regulatory work has not been liberalized.  Take the drone field, for example.  Now drones are entering our country. What about permission for drone usage?  According to the current legislation, from January 1, 2015, the unauthorized import of unmanned aerial vehicles into the territory of Uzbekistan was prohibited.  If, after approval by the Resolution of the Cabinet of Ministers No. 322, an application is submitted to Davavianozorat under the Cabinet of Ministers No. 287 of 2016 “Regulations on the use of unmanned aerial vehicles of the Republic of Uzbekistan.”  The penalties provided in Articles 116 of the Code of Administrative Offenses and Articles 260, 244, and 248 of the Criminal Code apply to non-compliance with the above norms or violation of the law on the use and storage tools.

Conclusion

In this article, we have examined the legal framework for airspace business and experimental flights in Uzbekistan. This blog post also comparatively studied the experience of the United States in airspace regulation. In conclusion, it can be observed that the current airspace legislation of Uzbekistan has put bureaucratic barriers which lead to impeding the development in the field. Additionally, some provisions do not reflect the developments of the modern world. Although the Air Code gives the private sector the right to use airspace, its role in airspace usage remains very little, and almost all sectors belong to a state with no competition. It can be concluded that usage of Uzbekistan’s airspace is not being liberalized for commercial purposes yet.

Cite as: Shakhriyor Abdubakiyev and Nilufarkhon Mahkmudova, “Regulation of airspace usage for commercial and experimental purposes in Uzbekistan”, Uzbekistanlawblog, 20.11.2021