Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
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- Q What are the implications of art. 25
- Part VII: Unlawful Interference and Aerial Intrusions
- Aeronautical Convention Consequences - Milde
- Customary Law Based Upon Incidents of Aerial Intrusions
3. Aircraft in Distress25 Chicago An aircraft can be in distress for all sorts of reasons: loss of navigational means, low fuel, fire on board, hijacking & anything that jeopardizes the normal operation & put the joint venture (community of the aircraft, crew, passengers, & baggage) into some jeopardy. Int’l law imposes on all 189 contracting States of ICAO, a duty to provide measures of assistance as they find practicable. Only the state concerned can judge what is practicable. Q? What are the implications of art. 25?There is a duty to permit that the state in which the aircraft is registered or the owners to provide such measures of assistance as may be necessary. There should be coordination in search & rescue operations. Ex. If an aircraft is hijacked, & the hijackers want to land at airport X & make a political statement at the airport you would let it land since the aircraft is in more distress if it is forced to stay in the air. This assumes basic principles of int’l law (humanitarian concern for life) & should be kept in mind in dealing w/ art. 25. (see Corfu Channel above)
IntroductionAviation security is essentially safety from man-made acts (criminal acts of which the target is int’l transport & aviation). Terrorist acts using airlines is due to the publicity ultimately given for a particular grievance. The law is one way to deter such acts, however, it is only one tool to protect aviation, as it is only a general prevention to legislate that X act is dangerous & will produce criminal punishment in the end. Law alone is will never eliminate certain acts (i.e. murder & rape still exist). Drafting a perfect convention only produces general results – people commit acts of crime without serious consideration of being caught or the ramifications their actions will induce at the end game. Aviation security is a global problem, single action will never do away w/ the danger,– the weakest link determining the overall security of aviation. It would be a folly to limit the roots of violent acts of aviation into one geographical area. Yes there may be a focus in one area from time to time but this is not the case when looked at throughout history. No one country in the world will ever be immune from aviation security problems. History of legislation: 1958 Fidel Castro’s brother hijacked 2 airplanes (DC-3s) & lost public sentiment when one of them crashed. 1968 ICAO assembly in Buenos Ares wouldn’t put hijacking on the agenda. But, then the Cuban minister asked for an appointment w/ pres to discuss hijacking w/ Milde as Cubans wanted to stop hijacking brought to Cuba – it was costly & dangerous. Thus, ICAO people started to discuss safety & security w.r.t. hijacking & the council drafted a convention that was to have political obstacles. -14% of criminal aviation attacks are terrorist attacks.
Aeronautical Convention Consequences - MildeChicago in times of war: The term “war” should no longer be a part of the vocabulary of int'l law. It is only used in the preamble to the UN and at art. 89 in Chicago. 89 Chicago In case of war, the provision of the Convention shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals. This is similar to art. 73 Vienna Convention on the law of Treaties -The applicability o int’l convention during war or hostilities is to some degree a legally gray areas which the Vienna on the law of Treaties does not address. -It could be argued that in the specific are of int’l air law the outbreak of hostilities would not suspend the duty of States to refrain from the use of weapons agst a civil aircraft in flight (belong to a belligerent or a neutral State) and in case of interception, not to endanger the lives of people on board and the safety of aircraft. -A state however still has a right to self-preservation and world opinion will depend on the facts of each individual case w.r.t. necessity and proportion of force used. Customary Law Based Upon Incidents of Aerial IntrusionsResponses to incidents indicate that civil and military aircraft are treated differently by custom and by necessity. U-2 incident support the proposition that force may be applied w/out warning agst a military aircraft that has intruded into the territory of another state on a definite and deliberate military mission. See below for more. The reason, however, for different treatment is b/c every state has the right and obligation to protect itself and its people from hostile action to include intelligence gathering activity. Chicago does NOT specifically rule out the use of force agst civil aircraft. Annex 2 rather makes a strong case agst the use of force agst civil aerial intruders. The general theme of Annex 2 is that interception should only utilized in rare instances and with the safety of the civil intruder as the prime consideration. Based on customary int’l law analogies can be draw from the Corfu Channel and Garcia cases, the Chicago and Annex 2 mean that the use of force agst civil aircraft is not justified. The only exception that has been recognized is if there is a vial security interest at state but this threshold (considering Israel downing a Libyan jet) is extremely high. Thus far, no nation has shot down a civil airliner and successfully used the security exception as a justification – although SEPT 11th would have met this threshold (however then it Domestic flights and crafts were used). Directory: pubdocs -> files files -> International maritime conventions files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law files -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Topic One Seaworthiness and Common Venture, chapter 15 Download 0.73 Mb. Share with your friends:
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