Sovereignty Over Airspace: International Law, Current Challenges, and Future Developments for Global Aviation

By Chrystel Erotokritou
2012, Vol. 4 No. 05 | pg. 2/4 |

Sovereignty in the Air and the Provision of Air Navigation Services

Under Article 28 (a) of the Chicago Convention, ‘’ Each contracting State undertakes, so far as it may find practicable, to: provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention’’.

Under Article 28 the provision of air navigation services is clearly a State responsibility deriving from the concept of sovereignty in the air. However the State can fulfil its obligation directly or decide to delegate this task to a private body that may be established within its territory or in a neighbouring state. Delegation of these services is possible and even encouraged by ICAO because international cooperation has always been one of the main objectives of the drafters of the Chicago Convention.24 The government then retains a supervisory authority. Delegations between countries are necessary for technical and operational reasons. This happens regularly for airports close to national boundaries such as Geneva, Zurich or Lugarno in Switzerland or located in the vicinity of congested areas.25 In the case of an international between States emanating from the provisions of air navigation services, solutions must be found in national law. This delegation can be done by States only and in the view of Kost, does not mean loss of sovereignty.26

On the contrary, Naveau is of the opinion that such delegation inevitably implies to some extent a loss of sovereignty over the airspace by the delegating State to the benefit of the providing State. He elaborated his argument by arguing that the Chicago Convention itself, while recognising the concept of sovereignty over the airspace, at the same time, laid down the legal basis for such ‘’abandonment’; of sovereignty by creating the International Civil Aviation Authority, which is working towards a maximum uniformity of rules and norms governing international civil aviation worldwide and thus restraining the freedom of States to enact their own set of rules concerning air operations in their airspace.27

National Security

The protection of national security was one of the major reasons for the establishment of the concept on complete and exclusive sovereignty over the airspace. During World War I and , balloons and aircrafts were used to drop bombs into enemy territories. The following examples involve cases where aircrafts were shot down because they were considered as representing a threat for the national security of sovereign States.

On 27 July 1955, a civilian aircraft was flying from Vienna to Israel through Istanbul, when it strayed into Bulgarian airspace because of false radio compass indication. Bulgarian fighter jets were ordered to shot down the plane. As a result all passengers and crew lost their life.28 At that time, the diplomatic relations between the West and the East bloc were tensed. The accident took place during the and the results of the official investigation carried out by the Bulgarian authorities were contested by the Israeli government. At first Bulgaria did not recognize its responsibility but eventually officially apologized and offered compensation the relatives of the victims of the shot down.29

On 20 April 1978, Korean Airlines Flight 902 was en route from Paris to Seoul when it accidentally violated the Soviet airspace because its navigation equipment malfunctioned. Two Sukhoi jets were sent to intercept the intruder. Even if the pilots of the military aircrafts informed their superiors that the intruder was a civilian Boeing 747, rather than an enemy military airplane, they were nevertheless ordered to shoot it down. Two passengers died and the pilots succeeded to make an emergency landing on a frozen lake, before all the surviving passengers and crew members were rescued by Soviet helicopters.30

On 1 September 1983, Korean Air Lines Flight 007 was a civilian aircraft that was shot down by the when it intruded the Soviet airspace. When the aircraft started deviating from its intended path, Soviet military jets were sent to intercept the Boeing 747. The Soviet authorities may have feared that the civilian airplane was an American intelligence aircraft that was overflying the peninsula of Kamchatka at the same time on a reconnaissance mission.31 The fights jets launched two air to air missiles that completely destroyed their target. All 269 passengers and crew on board were killed. This shot down provoked s wave of indignation in the international community and led to the adoption of article 3 bis of the Chicago Convention that prevents States from using force against civilian aircrafts.

On 21/22/23 September 1983, Abkhazian rebel separatist forces shot down three civilian Tupolev aircrafts in Georgia. A total of 136 people lost their lives as a result of those terrorist acts.

In 1988, an Iranian civilian aircraft was en route from Dubai to Iran when it was shot down by the USS Vincennes of the American navy in the Persian Gulf. All 290 passengers and crew members on board died. At that time Iran and Iraq were engaged into a war. The US officers mistakenly believed that the aircraft was an enemy military aircraft. Subsequently the US never recognized their fault and offered compensation ex gratia to the relatives of the victims.32 This drama was a gross violation of the provisions of article 3 bis of the Chicago Convention.

On 4 October 2001, Siberia Airlines flight 1802 was en route from Tel Aviv to Novosibirsk when it was shot down by a surface to air missile launched by the Ukrainian Air Defence Forces that were carried out military exercises in the Crimea region at the same time. Due to the fact that this accident occurred less than a month after the 9/11 terrorist attacks in the United States, the airport of Tel Aviv was closed for several hours because the Israeli authorities feared that this crash might have been caused by a terrorist act.33 In 2003 and 2004 the Ukrainian government signed two separate agreements with the Israeli and the Russian governments whereby it accepted to pay compensation to the relatives of the victims but without admitting its legal liability.34

On 14 August 2005 an aircraft of Helios airways, en route from Larnaka to Athens when it crashed in the mountains of Grammatikos, outside Athens. The official investigation established that a serious problem with the cabin pressure in the aircraft seriously affected the crew’s ability to properly respond to the emergency. Both pilots became unconscious and the auto-pilot continued flying the plane. Because the air traffic controllers in Athens were not able to contact the crew, two F16 were sent to intercept the intruder. Due to the fact that no pilot was controlling the airplane, it ran out of fuel and crashed.35It can be argued that the Greek authorities could not have been able to order the pilots of the fighter jets to shoot down the uncontrolled aircraft.

Outer Space

Nowadays technological advances enable aircrafts to fly higher and higher, the maximum limit of aerodynamic lift being constantly challenged. Article 28 of the Chicago Convention imposes obligation on states to provide air navigation services in the airspace above their territory as previously seen. However this obligation does not extend to the outer space. This question was neither dealt with by the Outer Space Treaty of 1967.36 Furthermore it is still undefined where the airspace ends and where the outer space begins because the international legal community could not agree on a fixed boundary between these contiguous zones until now. States were only able to concur on the fact that the outer space is the common heritage of mankind and no sovereignty claims can be made in respect of it.37 Naveau states that the movements within the sovereign airspace above the territory of a State is largely controlled by satellites located in the outer space which in not subject to the sovereignty of any State, as previously mentioned. Furthermore, these modern equipments located in the outer space are able to photography infrastructures and buildings in any country without asking for the permission of the relevant State.38 Naveau continues by saying that the flights operated by the hybrid category of spaceships also challenge the traditional concept of sovereignty in the air. According to him, the landing rights of such crafts remain subject to the provision of the Chicago Convention and international air law in general whereas overflight rights do not fall within the scope of such legal instruments (because the overflight takes place within the outer space). For him, it is urgent to redefine the concept of sovereignty is order to efficiently address the legal, economic and security issues deriving from such new activities. As a result, the author is of the opinion that the concept of sovereignty in the air is, over the years, becoming archaic, absurd and inadequate to the present reality.39

Suggested Reading from Inquiries Journal

In the year 1648, two treaties signed in the cities of Osnabruck and Munster, collectively known as the Treaty of Westphalia, brought into creation a notion of statehood that would go on to shape and influence the formation... MORE»
Advertisement
It is widely recognized that state security is no longer contingent upon a balance of power or the threat of conquering states, but global stability is now instead jeopardized by weak or fragile states. Fragile states represent chaos, disorder, and underdevelopment, and their very existence threatens not only the security of the developed world, but the capitalist, consumer-driven lifestyle to which the Western world is accustomed. Of critical concern... MORE»
While states admit a moral responsibility to take action against states that violate human rights and international criminal law, international law does not create any legally binding obligations on states to prevent or punish violators of human rights. Yet, enshrining the “responsibility to protect” in international... MORE»
Of the European Union’s twenty-seven member states, no country is more sceptical of political and economic integration than Great Britain. The English are profoundly independent and inherently suspicious of their continental neighbours; an attitude no doubt inspired by the geographical barriers between the two, and the heavily... MORE»
Submit to Inquiries Journal, Get a Decision in 10-Days

Inquiries Journal provides undergraduate and graduate students around the world a platform for the wide dissemination of academic work over a range of core disciplines.

Representing the work of students from hundreds of institutions around the globe, Inquiries Journal's large database of academic articles is completely free. Learn more | Blog | Submit

Follow SP

Latest in Law & Justice

2017, Vol. 9 No. 11
This research project focuses on invasive aquatic species and their potential usage as biological weapons. It’s a cross disciplinary study which utilises a comprehensive literature review on invasive aquatic species, biological warfare, maritime... Read Article »
2017, Vol. 9 No. 11
Regardless of which side of the Pacific individuals reside on, the idea of the government taking property and uprooting citizens tends to evoke a considerable amount of backlash. In examining the eminent domain practices of the United States and... Read Article »
2011, Vol. 3 No. 04
International Humanitarian Law, based on the concepts of jus ad bello, is defined to be the law of war. This means that the laws involved are meant to be active in a situation of an armed conflict or during war. However, just like international... Read Article »
2016, Vol. 8 No. 10
Over the last few decades, fetal homicide laws have become the topic of fierce debate. Some argue they are necessary to protect pregnant women from violence and provide for restitution in cases of assault that result in the loss of the fetus. Others... Read Article »
2016, Vol. 8 No. 09
The right to privacy dates back farther than 1890, when Supreme Court Justice Louis Brandeis penned The Right to Privacy: “In the very early times, the law gave remedy only for physical interference with life and property, for trespasses vi... Read Article »
2016, Vol. 8 No. 01
The most commonly cited statistic for the gender wage gap in the United States is that women earn seventy-eight cents to every dollar men earn. A great deal of contention however, surrounds the interpretation of this measure as well as others seeking... Read Article »
2009, Vol. 2 No. 2
Two years ago, my mom handed me the article, "Below a Mountain of Wealth, a River of Waste," from The New York Times, describing Freeport-McMoRan's mining activities in Papua New Guinea. After reading "Below," I knew that the world had to change... Read Article »

What are you looking for?

FROM OUR BLOG

Finding Balance in Graduate School
How to Manage a Group Project (Video)
5 Tips for Publishing Your First Academic Article