Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
) Air Defence Identification Zone
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- Q Are such zones lawful
- 2) Interception of Aircraft
- Interception of Civil Aircraft vs Misuse of Civil Aviation - Milde
- Hainan Incident (2001)
1) Air Defence Identification ZoneAn air defence identification zone was first established by the U.S., & then followed by Canada. It is a zone of 300 miles beyond their territory where for safety reasons; they require any aircraft entering that zone to identify itself & to state its course & destination. If they don’t they expose themselves to the danger of being intercepted. Where there is an interception, there is clear interaction b/t civil & state aircraft as States jealously protect their airspace. Such interception is rather unusual. When it is done it is to (a) ID the aircraft (b) maybe in distress or (c) maybe in a prohibited airspace (seen in art. 9 Chicago). Q? Are such zones lawful?They are prima facie unlawful. However, upon further analysis we see that US & Canada claim to a 300 mile zone is not unlawful b/c they are not asserting jurisdiction (since the countries do not set any flight coordination requirements). Hence, they do not break American or Int’l Law – in fact they are inline with art. 11 Chicago. The result of not identifying one’s self leads only to interception for safety reasons? Although, it is undesirable since the military aircrafts are coming too close for comfort w/ civil aircraft. Art 3Bis confirms that the use of force is contrary to int’l law. Art. 3Bis does not create the prohibition of arms in interception. Rather, this prohibition as a long-standing principle of Int’l Customary Law. 2) Interception of Aircraft(see 3 bis above & discussion of civil vs military aircraft) The American & Canadian ID zones do not mean that they declare rights over the high seas, rather they only want info. w.r.t. self-preservation & safety –note the preamble of Chicago may also be read to allow such ID Zones. Nonetheless, were an aircraft w/in the zone & fail to ID oneself, it would be intercepted. Interception means that air fighters would check them out to see if they have communication problems. They may also force it to land. Although int’l law says that a country can’t normally use weapons to force landing of an aircraft. HOWEVER,
Every State does have the right to self-preservation, which means in cases of vital emergency civil aircraft can be brought down w/ weapons regardless if int’l law states that you can’t use weapons to bring down a civil aircraft as stated in art. 3bis, which in fact only recognizes the already existent customary law not to use weapons agst civil aviation.. Of course making such a decision to bring down a plane who fails to ID themselves is a rather difficult decision to make. Again, no rule of law would prevent the right that flows from natural law of self-preservation. Note, however, that every use of force must be reasonably used in proportion to the presumed threat (as discussed above). -Even the so-called military aircraft are obliged to behave in a manner not to jeopardize civil aviation as per 3(d) Chicago. Some argue that ICAO went to far as art.3 Chicago says that the convention doesn’t apply to state aircraft. However, we cannot over look 3(d) & 3bis so easily for here it is specifically prohibited use of weapons agst civil aircraft. And art. 4 says that each State will not use civil aviation for purposes inconsistent w/ the aims of the Convention itself. -Remember, ICAO agreements are an expression of wills – a resolution (a unanimous expression) – it’s not a treaty. Although, it does carry weight as this is how (over a time) such an expression can become a source of int’l law. BUT, such resolutions are not legally binding on the States. ICAO can put additional practical aspects of aviation security into a proposal that will then be researched by experts & may (who knows) turn into a proposal that a country will make law. For example Resolution A25-3 calls upon States to seek to harmonize procedures for the interception of civil aircraft when issuing regs for their state aircraft. Interception of Civil Aircraft vs Misuse of Civil Aviation - MildeThe basic argument of the opponents was that the introduction of SARPS relating to interception and dealing with state aircraft would contradict the provision of 3(a) Chicago. Others argued that it dealt with safety of civil aircraft. Commission adopted a compromise based on technical and operational consideration to achieve the widest acceptance. Resulting in a watered down text of para 3.8.1. -Amendment 27 of Annex 2 passed by exactly 2/3rds pursuant to art. 90–The US in fact, although not in favour of the amendment, never registers disapproval although they did make a declaration of principle contrary thereto. Hainan Incident (2001)Facts: US EP-3 reconnaissance aircraft was forced to land on Hainan Island by Chinese fighter jets. The EP-3 was performing “routine” surveillance about 83 miles of the mainland. Pilots made two passes of the EP-3 within 1.5 meters. The US previously logged 2 diplomatic protests where US pilots were being harassed. Normally, separation b/t civil aircraft is 8km (5 miles). On the 3rd pass one of the Chinese pilots made contact w/ US aircraft, which caused the EP-3 to become unstable, hence an emergency landing was needed on Hainan Island. Emergency calls were made, but response was not heard, permission was not given, although the aircraft did land safely on the military runway. At the end of 11 days the crew was released as US claimed they regretted the incident. Aircraft, although could have been flown out but instead China said that it was to be disassembled. Chinese claimed costs of 1 million in housing. US offered less than half that – still yet to be resolved. Issue: (1) Was the interception lawful? (2) Was the information collection lawful? (3) Whether the emergency landing was legal? Commentary: 1 Chicago States enjoy complete sovereignty over their airspace. 2 Chicago Aircraft used in military services shall be deemed to be State aircraft. 3 Chicago Convention does not apply to State aircraft, but art. 3(c) is imp. w.r.t. landing. (1) The interception at first have been deemed lawful but once this engendered lives it was not legal. I.e. art. 3(d) holds that military aircraft are obliged to behave in a manner not to jeopardize civil aviation, however, it was a State aircraft intercepting ano/ State aircraft therefore Chicago would not apply. Although, one may argue that the same principle is part of customary int’l law & was violated by the Chinese. (2) Information collection was lawful as it was over the EEZ not the territorial waters & was not done covertly. (3) Emergency Landing – art. 25 Chicago states generally that each State is legally obliged to provide a measure of assistance to an aircraft in distress. Hence, the landing was legally permissible. 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