Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
The Fog of Peace: The use of Weapons agst Aircraft – Geiser
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- Navigate this page:
- State Practice - Military Aircraft
- State Practice - Civil Aircraft
- Chicago Convention
- Q Why add 3 bis if it’s customary law already
- Misuse of Civil Aviation
- State Practice – Criminal Use of Civil Aircraft
- State Practice – Terrorist Use of Civil Aircraft
- State Practice – Political Use of Civil Aircraft
- Factors Leading to the Wrongful Use of Force Agst Aircraft in Flight
- Conclusions and Recommendations
- Int’l Fight Agst Terrorism in the Air - Milde
The Fog of Peace: The use of Weapons agst Aircraft – Geiser38 ICJ Int’l law can develop from the treaties and convention states ratify. -Customary int’l law requirement that the use of force in self-defence be both necessary and proportional under the circs. Factors considered are if the aircraft was inside or outside the territorial airspace of the State using force, the civil or military character of the aircraft, and the amount of effort expended by the State to resolve ambiguities in the situation prior to using force. State Practice - Military AircraftUse of weapons agst military aircraft intruding into foreign airspace on a military mission has been tolerated. i.e. Military flights by Gary Powers in the U2 over USSR and USSR’s flight over Japan, which were both intercepted by the use of force, demonstrates that such action was implicitly allowed as the world community fell silent w.r.t. the use of force agst the intruding military aircraft into one’s sovereign airspace. As also shown by USSR’s attempt to place the US U2 flight and the Catalina Flying Boat Incident (1952) in USSR airspace (and the US claim and the Swedish gov’ts claim that their aircraft was in int’l airspace) illustrating that the use of force agst a military aircraft operating in int’l airspace or airspace of ano/ nation is not acceptable under int'l law. State Practice - Civil AircraftRule of customary int’l law prohibiting use of weapons agst a civil aircraft in commercial airspace. i.e. (1954) Two Chinese MIG fighters shot down a British Airliner, the Chinese gov’t apologized and offered to pay compensation for the aircraft and loss of life. Prohibition agst use of weapons agst civil aircraft even if in foreign airspace w/out authorization. i.e. Israeli El Al was shot down by a Bulgarian plane 5 miles inside their boarder. Bulgaria offered apologies and compensation. Bulgaria never suggested it had a right under customary int’l law to use force agst an intruding civil airliner, although it did have a right to defend its sovereignty but the response in this case was not proportional to the threat posed. Problems cases: Identifying if an aircraft is civil or military; whether it was inside of territorial airspace or not at the time of the accident. Military marking and high-performance flight characteristics will, in practice, generate a rebuttable presumption that the aircraft posed a threat that justified the use of force in self-defense. Similarly, an aircraft with civil marking generates a presumption that it did not pose a threat sufficient to justify the use of force in self-defence. If it is a State aircraft that flies over sovereign airspace then that State has the burden to innocently explain why it was there and that it was not a threat. If such evidence can be shown i.e. force majeure or poor navigation then the burden shifts to the territorial State to produce evidence it took reasonable steps to clarify the situation prior to using force as what was done when Yugoslavia shot down a US military aircraft forced into it’s airspace by bad weather. Yugoslavia offered compensation and to refrain from the use of force agst US transport aircraft in the future. Israel shot down a Libyan civil aircraft in Israeli airspace and even though the airliner didn’t respond to communications from Israel plane to land it was still held that force was unjustifiable. However, Israeli Chief of Staff did state that Israeli military, “could not discount the possibility that a civilian aircraft could come into [Israeli] territory on a hostile mission.” Although, had they known it was a civil aircraft they would never have shot it down. The Israeli case suggests that the use of force agst a civil airliner being used for commercial purposes will be condemned whether or not the State employing force preceded such use with a good faith attempt to communicate with the aircraft and direct it to land. In short (thus far): A state’s right to use force agst an aircraft in flight during peacetimes is based on the degree to which that aircraft poses a threat to the vital interest of the Sate using force and the availability and effectiveness of lesser measures. Military aircraft intruding into foreign airspace on a military mission constitute a sufficient threat to justify the use of weapons in self-defense. This appears true both for tactical military aircraft and for unarmed military aircraft for intelligence gathering purposes. State practice also suggest that an aircraft with military markings will be presumed to be on a military mission unless ev is produced to the contrary by its state of registry. The Israeli shoot down of the Libyan, The Bulgarian action agst the Israeli, the Soviet shoot down of KAL (1978) and KAL 007 (1983) & the Chinese action agst the British airliner reflect similarly widespread agreement that a State may not use weapons agst an aircraft w/ civil markings unless it is clear that the aircraft is being used for a military purpose. Absent compelling ev to the contrary from the overflown state, an aircraft w/ civil markings will be presumed to be engaged in non-military commercial activity. Uncertainty arises where civil aircraft engaged in non-military activity, which refuse directions from the State overflown. No reported cases where a State has claimed the right to shoot down an aircraft with civil markings under such circs. While refusal to land may be some ev that the aircraft is not engaged in innocent activity, it appears unlikely that this would be sufficient on its own to overcome the presumption agst using weapons. This is true given the limits of necessity & proportionality placed on the use of self-defense under customary int’l law. (SEPT 11th may have changed this somewhat) Chicago Convention3(d) requires States to undertake, when issuing regs for their State aircraft, to have DUE REGARD for the safety of navigation of civil aircraft. It imposes no specific operational limits on military aircraft, the words do bound the use of such aircraft in national self-defense insofar as the provision reflects the customary int’l law that force be used only when necessary and then only in a manner proportional to the perceived threat. Effectively, 3(d) codifies the existing customary int’l law. Appendix B to Annex 2 promulgates standards for interception of civil aircraft which incorporate the due regard language of art. 3(d). Annex B provides the interception of civil aircraft should be avoided and should be undertaken only as a last resort. Interception should be limited to determining the identity of the aircraft, unless it is nec to return the aircraft to its planned track, direct it beyond the boundaries of national airspace, guide it away from a prohibited, restricted or danger area o instruct it to land. Adoption of Amendment 27 to Annex 2 is a watershed quasi-legislative work of the Council. First time a comprehensive set of Stnds was adopted relating to the interception of civil aircraft. The amendment includes a comprehensive set of “special recommendations” which have no legally binding force, but States have been invited to notify any departure from these. It is believed a large degree of uniformity has been introduced for interception procedures and that the safety of int’l civil aviation will be enhanced. So far no State has registered a formal disapproval to the amendment and it has become effective since 27 July 1986. Attachment A to Annex 2 includes recommended intercept procedures. While these recommendations are intended to foster uniform practices, they are not binding on a state party to Chicago w.r.t. to employment of military aircraft w/in the state’s territorial airspace. 3 bis Chicago forbids uses of force agst civil aircraft. ob of States to refrain from resorting to the use of weapons agst civil aircraft in flight ob in case of interception not to endanger the lives of person on board and the safety of aircraft. right of States to require landing where civil aircraft is flying without authority or if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of Chicago. “aims” was meant to include not only those violations as spelled out in the Preamble and in art. 44 but also w.r.t. transport of illicit drugs, contraband, gun running, illegal transport of persona and anyo/ common crimes. REMEMBER civil and state aircraft would not enjoy the same protection under 3 bis. Moreover, 3 bis is reserved to foreign aircraft & does not include aircraft of the State’s own registration as this would have exceeded the scope of the Convention which deals with int’l civil aviation (3(a)). Nonetheless, a State is still not free to treat aircraft of its own registration w/out regard to any rules as other sources of int’l law may relied on (i.e. Int'l Covenants on Human Rights) for the conduct of States (protection of the right to life, requirement of due legal process, presumption of innocence etc.). Note 3 bis para (a) does not exclude enforcement agst foreign aircraft in flight and does not rule out the use of adequate and proportionate force and does not rule out interception as such. Any act of interception or other enforcement measure not involving the use of weapons agst civil aircraft in flight is legit and acceptable Any interception procedures consistent with the SARPS pursuant to 37, 54(1) and 90 would be consistent with relevant rules of int’l law. Moreover, other provisions of 3 bis that are likely to deter misuse of civil aviation is: 1) Civil aircraft are unconditionally obliged to comply with an order to land and (c) is an ob to establish all nec provisions in the national law or regs to make such compliance mandatory, States are also accepting an ob to make violation of such law or regs punishable by severe penalties and to submit the case their authorities. Hence, the violator will be punished. 2) All States are accepting an unconditional ob to take appropriate measures to prohibit any deliberate misuse of any civil aircraft of their registration or operated by one having his principal place of business or permanent rez in that State. Q? Why add 3 bis if it’s customary law already?The need to amend Chicago and add 3 bis, which is only recognition of int’l customary law, as expressed by Dr. Assad Kotaite, is b/c the “int’l community believes that only written law can remove the uncertainties of the o/ prime source, customary law, it fill existing gaps in the law and gives precision to abstract general principles, the practical aps of which have not been previously settled. … a written rule is far superior to general principles recognized as customary law b/c frequently the very existence of a customary law or its exact scope and content may remain subject to change. Dr. A. Sciolla-Lagrange, “Words fly away but what is written remains forever.” Tokyo : Other Legal Aspects: States can exercise criminal jurisdiction over foreign aircraft in flight under Tokyo art. 4, which permits “interference” with an aircraft in flight in order to exercise criminal jurisdiction over an offence committed on board in the following cases: offence has effect on the territory of such State offence has been committed by or agst a national or permanent rez of such State offence is agst the security of such State offence consists of a breach of any rules or regs relating to the flight or maneuver of aircraft in force in such State. the exercise of jurisdiction is necessary to ensure the observance of any ob of such State under a multilateral int’l agreement. 4 Tokyo is an imp addition to clarify 3 bis Chicago w.r.t. the interception of the term “any purpose inconsistent with the aims of the Convention.” As any offence foreseen in 4 Tokyo gives right to the State concerned to interfere. Misuse of Civil Aviation (discussed below)4 Chicago is the only provision that explicitly uses the words “misuse of civil aviation” and is of no relevance to the problem of criminal use of civil aviation (i.e. drug trafficking) since it refers only to the obs of States and to the acts of States. Drafting history of art 4 indication that it was to prevent the use of civil aviation by States for purposes, which might create a threat to the security of other nations. Thus art. 4 effectively mean “threats to the general security”. What Chicago does not address, however, is the manner in which a State may enforce their rules and regs agst an intruding civil aircraft being used for a purpose inconsistent with article 4. 11,12 and 13 Chicago confirm the rule of general int’l law that foreign aircraft, its crew, passengers and cargo do not enjoy any “extraterritorial” status while in the airspace or on the ground of another State, such aircraft are fully subject to the applicable laws of the State concerned. As a State may require the landing of a foreign aircraft involved in non-scheduled flight (art 5) may prohibit or restrict foreign aircraft from flying over its territory (art 9) may require landing of foreign aircraft at a customs airport (art. 10) and may search the foreign aircraft 9art. 16) and may regulate or prohibit the carriage of certain goods (art 35(b)). State Practice – Criminal Use of Civil AircraftColumbian gov’t adopted a shoot down policy – Civil aircraft were subject to being shot down (1) if they flew w/out flight plans (2) did not respond to radio contact by pursing military aircraft and (3) if they ignored visual signals to land. US has claimed a right under int’l law to use weapons agst civil aircraft engaged in drug trafficking. There is no record in ICAO giving an opinion on this assertion thus one may imply broad int’l consensus that the use of weapons agst civil aircraft used for drug trafficking does NOT violate int'l law. This may be limited, however, to cases where the scope of drug trafficking is such that it can reasonably be construed to have grown from a criminal problem to a national security issue. State Practice – Terrorist Use of Civil AircraftUS intercepts Egyptian aircraft with terrorists as passengers over int’l waters and force it to land. Egypt here had a clear ob to either prosecute or extradite terrorists, it has been argued that the American action was a very limed use of force and reasonably nec and proportionate under the circs to assure the enforcement of int’l criminal law on behalf of the int’l community and within the meaning of the preamble to the UN Charter. Nevertheless, the use of self-help to intercept terrorist in flight over int’l waters remains unsettle. Irrespective of the legal arguments, the ultimate litmus test of the legality of any sate practices is the acceptance of that practice by a substantial majority of the international community. Post SEPT 11th this seems like it would be allowed. US has even decided that it will go into a sovereign state airspace in search of a terrorist. Israel did this in 1973, however, no terrorists were found on the plane. Worldwide condemnation was immediate and severe. Israel was over the sovereign airspace of another but perhaps worse still they didn’t find who they were looking for, which might have made all the difference w.r.t. public opinion. The issues of self-help ultimately come down to the necessity and proportionality. At present, the legality of using weapon or the threat of weapons agst civil aircraft being used to transport terrorist remains unclear. State Practice – Political Use of Civil AircraftCuba shot down 2 civil air craft used for political uses (one of which entered Cuban airspace). ICAO Council DEPLORED Cuban action but no sanctions were taken. The issue was whether the use of civil aircraft for political purposes intended to destabilize a gov’t is sufficient to threaten that gov’t to warrant the use of weapons. Int’l law does not appear to recognize the right of a Sate to use weapons to protect a particular gov’t or leader from political as opposed to physical harm. Factors Leading to the Wrongful Use of Force Agst Aircraft in FlightUse of weapons agst intruding military aircraft will almost always be tolerated unless circs clearly show that the aircraft did not in fact pose a threat and that he state using the force did not exercise reasonably diligence in attempting to determine this fact. The use of weapons agst intruding civil aircraft, however, will seldom be tolerated unless the state using force can produce ev that the downed aircraft was being used for a military purpose or for a purpose which, while non-military, nonetheless poses a substantial security risk to the subjacent state. One must distinguish, however, action that threatens the subjacent state from actions that merely threaten the political viability of a particular gov’t or leader. It appears that he int’l community is fare less willing to tolerate the use of weapons agst civil aircraft being used for such political purposes. Conclusions and RecommendationsWhile the use of weapons agst civil aircraft used for terrorist or drug trafficking purposes has received a certain amount of support from the int’l community, it is unclear whether this represents the emergence of a firmly rooted exception to the prohibition agst using weapons agst civil aircraft. Post SEPT 11th, however, I believe this is likely. Mistaken shoot down can be lessened by better training and by following uniform intercept procedures. ICAO could also create a body to facilitate and oversee payment of compensation of victims of civil airline accidents. It can mandate a nation to pay compensation where there was not a threat to national security, on a strict liability basis, without regard to fault to alleviate political concerns of offering payment will be coloured a guilt/liability. The military/civil distinction may still have value to allocate the BOP after shot downs, it is not an adequate rule of decision for those whom must defend their nations. Misuse of civil aircraft can as demonstrated by SEPT 11th pose a great threat to national security as military aircraft. Analyzing shoot down incident in terms of the threat posed and applying the requirement of necessity and proportionality seems far more likely to result in a reasoned balance b/t airline safety and a national security interests than a debate centered on generalized presumptions based on what the downed aircraft looked like. ICAO should address the growing threat posed by the increased misuse of civil aviation for terrorist, criminal or political purposes. Suggesting that ICAO rules requiring States to severely punish those involve underestimate the nature and scope of the problem and does little achieve a proper balance b/t safety and commercial aviation and legitimate national security interests. Why should the US be a leader in requiring locked cockpit doors and making the doors reinforced? It’s time to lead instead of follow. Int’l Fight Agst Terrorism in the Air - MildeSafety of air navigation and air transport essentially means “absence, avoidance or prevention of a danger” to the passengers, crews, aircraft and 3Ps. Aviation is used by terrorists b/c it is essential to economies and cooperation, is highly visible, attacks agst it receive large amounts of publicity and is actually quite vulnerable. Aviation Security remains an overriding priority of ICAO as stated in Resolution A29-5 (1992). However, the law will only offer a general prevention and is only one of the tools for mgmt of overall security. 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