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 is 3 bis that resulted from the 1983 Russian / Korean homicide
- Garcia v. Garzon - the use of force must be proportionate to the danger
- Corfu Channel (ICJ 1950’s) - Protection of human life is an essences of int’l law
- Q Why hasn’t the U.S. ratified 3bis Chicago
- Q What about the right o self-preservation
Part VI: Defence of Airspace16 Chicago Every state has the right to search an aircraft but within a reasonable delay. During the Cold War, weapons were used agst a civil flight. Air France was shot on by a Soviet air force jet when Air France was flying b/t Frankfurt & Berlin & the Soviet Union said that Air France went into a prohibited area. The incidents are many see following examples: 1955: El Al Israeli aircraft was shot down over Bulgaria. 64 people died. Aircraft strayed innocently over the airspace of Bulgaria. Apology given, disclaimed responsibility, but paid compensation, ICJ heard case but Bulgaria objected to jurisdiction w/ Bulgarian consent. 1973: Israeli Occupation Forces in Sinai shot down a Libyan aircraft flying from Tripoli to Cairo whose airport was shut down due to sandstorm. 165 people died on that flight. 1978: Korean Air Lines (707) started from Paris to Seoul through Polar Route. Thus, they stopped in Anchorage. Their Inertial Navigation System suffered a serious defect & when they were in the Polar Area they had to rely only on the magnetic bearing. Every direction was south. Thus, they mistakenly went into territory of the USSR, which was a totally prohibited area. One Soviet Jet went to intercept the airplane. The pilot told the headquarters that it was a civil flight. The headquarters said it was an intruder & thus you must destroy it. Thus, the pilot shot a missile in the direction of the Korean Air Liner but making the mistake before firing the missile that he forgot to activate the missile. Thus, the aircraft did not explode & four people died just b/c of the mechanical impact. The airplane suffered decompression but the pilot managed to land the aircraft on a frozen lake. Countries can declare prohibited areas legitimately as per Art. 9 Chicago. Hence, the U.S. can declare no-flight zones over N.Y. when they so desire. (This would seem to be in line w/ the fact a State is sovereign & has the right to self preservation / defence) 1983: Korean Air Lines (747) Flight 007 from New York to Anchorage, Alaska. In the programming in the Inertial Navigation System, they made a one-degree mistake. Instead of flying from Anchorage in the direction of Seoul, they flew over Russian territory of Kamchatka & over the island of Sakhalin. They were over Russian airspace for one hour & Russian air defense noted that they could not find them. Two Soviet jets were sent to intercept the 747. One of the jets said that the Korean Air Lines looked like what it was: i.e. a civil aircraft. Headquarters told him to terminate the flight. The pilot still objected to the order. The pilot, reluctantly, fired two missiles. After 14 minutes, the plane crashed into the sea. 269 people died. This was mass homicide. The Soviet attitude denied any knowledge about it. 3 days later they admitted that there was a intruder whose flight was terminated. The result of this Korean Air Line incident was the Protocol for the Amendment of the Chicago Convention & the adoption of art. 3 bis Chicago.
Q? What is 3 bis that resulted from the 1983 Russian / Korean homicide?3bis Chicago “recognizes the prohibition of use of weapons agst civil aircraft in flight & that in case of interception the lives of persons on board & the safety of aircraft must not be endangered.” Art. 1 & Art. 3bis are co-extensive. 3Bis much like Art. 1 simplifies customary int’l law. Many scholars don’t like art. 3Bis. I (Milde), however, agree w/ it as it is based on int’l precedents, which may be the root of int’l customary law. ICAO doc. 7300/6 says, use of armed force agst int’l civil aviation is incompatible with the norms governing int’l behaviour and elementary considerations of humanity and with the rules, SARPS enshrined in Chicago and its Annexes and invokes generally recognized legal consequences. Garcia v. Garzon -the use of force must be proportionate to the dangerFacts: Is an int’l arbitration decision b/t the USA & Mexico. This case has nothing to do w/ aviation in the first place. It has to do w/ unlawful immigration of Mexican citizens to the territory of the U.S.. The U.S. authorities declared that a certain portion of the Rio Grande del Norte is prohibited & nobody can cross from there. National Guard was placed there to enforce it. When the National Guard saw a boat w/ people, just started shooting at them. They killed a young innocent girl of eight years of age. Issue: Whether the US use of force was justified. Held: Arbitration held that the use of force must be proportionate to the danger. Corfu Channel (ICJ 1950’s) -Protection of human life is an essences of int’l lawFacts: Corfu is an island on the northwestern part of Greece. There are waters b/t the island & the mainland. The coastal state on the other side is Albania. Albania declared that navigation through the Corfu Channel is prohibited to all military ships. Many states took an objection to this. 3 frigates of the British Navy went through the Corfu Channel & they repeated this one-week later. B/t the week, someone put in the path magnetic, wartime German mines & two of the frigates were blown up w/ 80 lost lives. Issue: Int’l Court of Justice was appropriately seized of the issue, whether the actions were justified that resulted in so many deaths. Held: Protection of human life is one of the essences of int’l law. And that even in times of war that written int’l law in force gives considerable protection to human life. The protection of humanitarian principles in times of war so much more exacting & demanding must be the protection of human life in time of peace. Hence, the protection of human life was declared to be a general principle of int’l law. Thus, art.3Bis Chicago is a reflection of customary, general int’l law & not an innovation. That means the past acts illustrated above of shooting down these airplanes has been unlawful.
Q? Why hasn’t the U.S. ratified 3bis Chicago?The U.S. has still not ratified art. 3Bis, while the Russians now have ratified along w/ Mexico who expressed a problem w/ drug traffickers. 3bis, however, is a reflection of customary law, therefore, may apply to the U.S. regardless even if they don’t officially ratify it (see Corfu above). U.S. reasons for not ratifying: (1) They do not want to tie their hands w/ respect to national defence. (2) 3Bis is an integral part of the Convention & hence subject to other provisions of the Convention including Chapter XVIII (that is art. 84 & following) on the settlement of differences whereby the Convention as such is subject to compulsory jurisdiction of the ICJ & the U.S. will only submit to the ICJ on a case-by-case basis.
Q? What about the right o self-preservation?States have the right to self-preservation & this is much stronger than the right to self-defence (art. 21 of the UN). Hence, states can still use deadly force agst a civil plane where so threatened. Shooting down a terrorist plane from the sky would be justified as self-preservation under int’l law. USE OF FORCE MUST BE PROPORTIONATE TO USE OF THE PERCEIVED FORCE (discussed above). Force is permissible but it must be used in proportionate (reasonable) to the assumed threat. If you use deadly force on aircraft you are not only prosecuting those on board but also executing. Where is the process of law? 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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