„Shooting down aircraft by states in the light of sovereignty of airspace”

Airspace = state's jurisdiction (if above state's territory)

Borderline – varies (30-160 km above sea level)

Outer Space = out of states' jurisdiction

Article 1Sovereignty

The contracting States recognize that every State has complete andexclusive sovereignty over the airspace above its territory.

Article 1

Prohibition of flying

Introduction of conditions, limits

and control

Delegation of rights

Establishment of jurisdiction over foreign

aircraft

Usage of coercive measures

Korean Air 007 Accident of September 1st, 1983

Flight bound JFK-GMP

Flew over Soviet territory (Kamchatka) upon Pacific Ocean crossing

Soviet airspace was under prohibition of air passage

Navigation fault by pilots caused the unintended passage

Incorrectly identified as a spy aircraft by Soviets

Shot down by Soviet interceptors. 269 people died.

Libyan Arab Airlines 114 Accident of February 21, 1973

Flight bound TIP-CAI

Expected severe sandstorm and thus needed to rely on its instrumental navigation system; could not find its air traffic beacon

Did not report the problems to air traffic control and was permitted to descend

Strong tailwinds caused it to fly over Suez Canal

Israel (being at war with Egypt) was suspicious about it; plus it flew close to Dimona – a place where Israel had its nuclear weapon factory

A communication attempt was made, but with no clear response from 114

Finally, it was shot down by Israeli fighters when turning west to its destination

Consequences? Aftermath of LN 114

a) ICAO condemns the act and affirms that such acts constitutes serious danger for security of international civil aviation

b) Israel's action is called a clear breach of rules arising from Chicago Convention

Aftermath of KE 007

a) ICAO issued a resolution condemning the shot down of KE 007

b) ICAO undertook the revision of problem of proper communication between civil and military aircraft

Addition of Article 3 bis to Chicago Convention [...] every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered.

Aforementioned provisions repeated in Article 3.8.1. of Annex II – Rules of the Air to Chicago Convention

Does it work? In July 1988 Iran Air 665 was shot down by USS Vincennes when crossing the

Straight of Hormuz during the Gulf War on its way from Bandar Abbas to Dubai

In June 1996 two civil planes were shot down by Cuban Air Force when flying over INTERNATIONAL WATERS

Nowadays ongoing discussion concerning regime of airspace over states' territories ===> ICAO Working Paper from WORLDWIDE AIR TRANSPORT CONFERENCE SIXTH MEETING hold in Montréal, 18 to 22 March 2013 – permission to transfer rights of performing air navigation to third parties (e.g. ICAO itself )

In 2014 ICAO stated that all questions concerning alerts and decisions about closure of airspace is are a matter of states themselves, and ICAO can only act in an extraordinary situation when a state is unable to control airspace above its territory or diplomatic relations require its actions.

CLOSING QUESTION

Should the basic principle of international air law be that strict, even

for the price of security?