Sovereignty Over Airspace: International Law, Current Challenges, and Future Developments for Global Aviation
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 conflict 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.26On 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
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 World War II, 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 Cold War 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 Soviet Union 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.
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.39Continued on Next Page »