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. 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. 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.
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.
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. 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.
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.
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. 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. 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. 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.
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.It 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. 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. 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. 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.Continued on Next Page »
Books
H. Grotius, Mare Liberum sive de jure quod Batavis competit ad Indicana commercia dissertatio (1609).
P. Haanappel, The Law and Policy of Outer Space – A Comparative Approach, Luwer Law International (2003).
Shawcross & Beaumont, Air Law 37, 4th ed. (2007).
Erwin Von Den Steinen, National Interest and International Aviation, Kluwer Law International, 2006.
Articles
M. Franklin & S. Potter, Sovereignty over Airspace and the Chicago Convention: Northern Cyprus, 35 (1) Air and Space Law 63-70 (2010).
S. Kaiser, Sovereignty in the Air: From National Security to the Single European Sky, 35 (1) Annals of Air and Space Law 154 (2008).
C. Lincoln Bouvé, Private Ownership of Airspace, 1 Air Law Revue 232, 376 (1930).
J. Naveau, Droit de l’Air et Nationalisme Historique, 15 Annals of Air and Space Law 183 (1990).
G. O’Reilly, Gibraltar: Sovereignty Disputes and Territorial Waters, http://80.33.141.76/ET2050_library/docs/med/gibraltar.pdf
European Legislation
Commission Regulation (EU) No 285/2010 of 6 April 2010 amending Regulation (EC) No 785/2004 of the European Parliament and of the Council on insurance requirements for air carriers and aircraft operators.
Protocol Consolidating the Eurocontrol International Convention Relating to Co-operation for the Safety of Air Navigation of 13 December 1960, as variously amended, signed at Brussels on 23 June 1997.
Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators.
International Legislation
Charter of the United Nations (26 June 1945), United Nations Conference on International Organisation Documents, vol. XV (1945), 335.
Convention Internationale Portant sur la Reglementation de la Navigation Aerienne, signed at Paris on 13 October 1919.
Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929.
Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Montreal on 28 May 1999, ICAO Doc 9740.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944, ICAO Doc 7300/8, 9th Edition, (2006). Hereafter referred to as the Chicago Convention.
International Air Services Transit Agreement, signed at Chicago on 7 December 1944
Montevideo Convention on the Rights and Duties of States, signed at Montevideo on 26 December 1933.
Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies, signed at Munster on 24 October 1648.
United Nations Convention on the Law of the Sea (UNCLOS), signed at Montego Bay on 10 December 1982, 1833 U.N.T.S. 3, 397; 21 I.L.M. 1261 (1982).
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, signed at London, Moscow and Washington on 27 January 1967. UN Doc 610 UNTS 205 / 6 ILM 386 (1967) / [1967] ATS 24.
Leiden University Power Point Presentations
M. Bisset, power point presentation, The EU Emission Trading Scheme, Aircraft financing seminar, Leiden University, 24-25 November 2011.
P. Mendes de Leon, power point presentation, Economic Regulation under Bilateral Air Agreements, Leiden University, September 2011.
P. Mendes de Leon, power point presentation, The Chicago Convention, Leiden University, September 2011.
C. Mestre, power point presentation, EU Aviation External Relations, Leiden University, September 2011
P. Van Fenama, power point presentation, Bilaterals, Leiden University, September 2011.
Newspapers
Flight Global website, Pictures: Finnish F-18 engine check reveals effects of volcanic dust, http://www.flightglobal.com/news/articles/pictures-finnish-f-18-engine-check-reveals-effects-of-volcanic-340727/ 16 April 2010.
The Sydney Morning Herald, Qantas cancels flights for a third day, http://www.smh.com.au/travel/travel-news/qantas-cancels-flights-until-tuesday-afternoon-20100418-slv5.html 18 April 2010.
Time/CNN, The Worst, but Not the First, 12 September 1983.
Cases
R (on the application of Kibris Turk Hava Yollari & CTA Holidays) v Secretary of State for Transport (republic of Cyprus) [2009] All ER (D) 295 (Jul). [2009] EWHR 1918 (Admin).
Websites
Aviation Safety Network website, http://aviation-safety.net
Defence News – A Gannet Company website, http://www.defensenews.com/story.php?i=4692874
D. Evans, Vincennes: A Case study http://web.archive.org/web/20060527221409/http://dolphin.upenn.edu/~nrotc/ns302/20note.html
Eurocontrol website http://www.eurocontrol.int/articles/about-muac
Europa website http://europa.eu/legislation_summaries/internal_market/single_market_services/financial_services_insurance/l24300_en.htm
European Commission Mobility and Transport Department website http://ec.europa.eu/transport/air-ban/list_en.htm, last visited (16-11-2011).
Gibraltar Viewpoint Blogspot website http://gibraltarviewpoint.blogspot.com/2011/04/britain-will-defend-its-sovereignty-and.html
Transport & Environment website, Advocate’s opinion emphatically rejects airlines’ ETS complaints http://www.transportenvironment.org/News/2011/10/Advocates-opinion-emphatically-rejects-airlines-ETS-complaints/
The UK Telegraph website, http://www.telegraph.co.uk/news/worldnews/europe/iceland/8528915/Iceland-shuts-airspace-after-volcanic-eruption.html
Other Materials
European Commission Press Release of 21 November 2001, Aviation: Commission updates the EU list of air carriers subject to an operating ban, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1375&format=HTML&aged=0&language=en
A. Kost, Responsibility and Liability for Air Navigation Services (Master Thesis at Leiden University) (2004).
Private air law reader, Leiden University 2011-2012. Course leader Prof Mendes de Leon.
1.) The Montevideo Convention on the Rights and Duties of States, signed at Montevideo on 26 December 1933.
2.) Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies, signed at Munster on 24 October 1648.
3.) S. Kaiser, Sovereingnty in the Air: From National Security to the Single European Sky’, 35 (1) Annals of Air and Space Law 154 (2008).
4.) Shawcross & Beaumont, Air Law 37, 4th ed. (2007).
5.) Charter of the United Nations (26 June 1945), United Nations Conference on International Organisation Documents, vol. XV (1945), 335 ff., art. 2(7).
6.) The United Nations Convention on the Law of the Sea (UNCLOS), signed at Montego Bay on 10 December 1982, 1833 U.N.T.S. 3, 397; 21 I.L.M. 1261 (1982).
7.) H. Grotius, Mare Liberum, sive de jure quod Batavis competit ad Indicana commercia dissertatio (1609).
8.) C. Lincoln Bouvé, Private Ownership of Airspace, 1 Air Law Rev. 232, 376 (1930)at 246–248.
9.) Air and Space Law (2008) 67.
10.) Ibid.
11.) Convention Internationale Portant sur la Reglementation de la Navigation Aerienne, signed at Paris on 13 October 1919.
12.) Convention on International Civil Aviation, signed at Chicago on 7 December 1944, ICAO Doc 7300/8, 9th Edition, (2006). Hereafter referred to as the Chicago Convention.
13.) J. Naveau, Droit de l’Air et Nationalisme Historique, 15 Annals of Air and Space Law 183 (1990).
14.) Ibid.
15.) P. Mendes de Leon, power point presentation, The Chicago Convention, Leiden University, September 2011.
16.) See supra note 10 at 184.
17.) International Air Services Transit Agreement, signed at Chicago on 7 December 1944, 84 UNTS 389, ICAO Doc 7500.
18.) See supra note 10 at 184.
19.) P. Mendes de Leon, power point presentation, Economic Regulation under Bilateral Air Agreements, Leiden University, September 2011.
20.) P. Van Fenama, power point presentation, Bilaterals, Leiden University, September 2011.
21.) See supra note 13 at 185.
22.) C. Mestre, power point presentation, EU Aviation External Relations, Leiden University, September 2011.
23.) Ibid.
24.) E. V. D. Steinen, National Interest and International Aviation 71 (2006).
25.) A. Kost, Responsibility and Liability for Air Navigation Services 22 (Master Thesis at Leiden University) (2004).
26.) Ibid
27.) See Supra note 9 at 184.
28.) Aviation Safety Network website, http://aviation-safety.net/database/record.php?id=19550727-0, last visited (18-11-2011).
29.) Time/CNN, The Worst, but Not the First, 12 September 1983.
30.) Aviation Safety Network website, last visited (12-11-2011) http://aviation-safety.net/database/record.php?id=19780420-1
31.) Aviation Safety Network website, last visited (16-11-2011) http://aviation-safety.net/database/record.php?id=19830901-0
32.) D Evans, Vincennes: A Case study http://web.archive.org/web/20060527221409/http://dolphin.upenn.edu/~nrotc/ns302/20note.html, last visited (15-11-2011)
33.) Aviation Safety Network website, last visited ( 15-12-2011) http://aviation-safety.net/database/record.php?id=19930923-1
34.) Private air law reader, Leiden University 2011-2012. Course leader Prof Mendes de Leon at 91.
35.) Aviation Safety Network http://aviation-safety.net/database/record.php?id=20050814-0, last visited (17-11-2011)
36.) Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, signed at London, Moscow and Washington on 27 January 1967. UN Doc 610 UNTS 205 / 6 ILM 386 (1967) / [1967] ATS 24.
37.) P. Haanappel, The Law and Policy of Outer Space – A Comparative Approach, 8-23 (2003).
38.) See Supra note 9 at 185.
39.) Ibid.
40.) M. Franklin & S. Potter, Sovereignty over Airspace and the Chicago Convention: Northern Cyprus, 35 (1) Air and Space Law 63-70 (2010).
41.) [2009] All ER (D) 295 (Jul). [2009] EWHR 1918 (Admin)
42.) G. O’Reilly, Gibraltar: Sovereignty Disputes and Territorial Waters http://80.33.141.76/ET2050_library/docs/med/gibraltar.pdf ,last visited (19-11-2011)
43.) Ibid.
44.) Ibid.
45.) Defence News – A Gannet Company website, last visited (18-12-2011) http://www.defensenews.com/story.php?i=4692874
46.) Ibid
47.) Gibraltar Viewpoint Blogspot website, last visited (19-12-2011) http://gibraltarviewpoint.blogspot.com/2011/04/britain-will-defend-its-sovereignty-and.html
48.) See supra 15 at 150-155.
49.) Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929.
50.) Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Montreal on 28 May 1999, ICAO Doc 9740.
51.) Protocol Consolidating the Eurocontrol International Convention Relating to Co-operation for the Safety of Air Navigation of 13 December 1960, as variously amended, signed at Brussels on 23 June 1997.
52.) See supra note 15 at at 271.
53.) Ibid.
54.) Article 3(d) of the Chicago Convention 1944 provides that when States enact rules for the operation of State aircrafts, they must have due regard for the safety of the navigation of civil aircraft.
55.) M. Bisset presentation, The EU Emission Trading Scheme, Aircraft financing seminar, Leiden University, 24-25 November 2011.
56.) Ibid.
57.) Transport & Environment website, Advocate’s opinion emphatically rejects airlines’ ETS complaints http://www.transportenvironment.org/News/2011/10/Advocates-opinion-emphatically-rejects-airlines-ETS-complaints/, last visited (17-11-2011)
58.) Ibid.
59.) The UK Telegraph website, http://www.telegraph.co.uk/news/worldnews/europe/iceland/8528915/Iceland-shuts-airspace-after-volcanic-eruption.html , last visited (19-12-2011).
60.) The Sydney Morning Herald, Qantas cancels flights for a third day, http://www.smh.com.au/travel/travel-news/qantas-cancels-flights-until-tuesday-afternoon-20100418-slv5.html 18 April 2010.
61.) Flight Global website, Pictures: Finnish F-18 engine check reveals effects of volcanic dust, http://www.flightglobal.com/news/articles/pictures-finnish-f-18-engine-check-reveals-effects-of-volcanic-340727/ 16 April 2010.
62.) Money control website – India’s no1 Financial Portal http://www.moneycontrol.com/news-topic/-airspace/video-september-11th-airspace-shutdown-(animation)_ttUkvGnKM2s.html , last visited (19-11-2011)
63.) Eurocontrol website http://www.eurocontrol.int/articles/about-muac , last visited (17-12-2011).
64.) Ibid.
65.) Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators.
66.) Commission Regulation (EU) No 285/2010 of 6 April 2010 amending Regulation (EC) No 785/2004 of the European Parliament and of the Council on insurance requirements for air carriers and aircraft operators.
67.) Europa website http://europa.eu/legislation_summaries/internal_market/single_market_services/financial_services_insurance/l24300_en.htm, last visited (15-11-2011).
68.) European Commission Mobility and Transport Department website http://ec.europa.eu/transport/air-ban/list_en.htm, last visited (16-11-2011).
69.) European Commission Press Release of 21 November 2001, Aviation: Commission updates the EU list of air carriers subject to an operating ban, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1375&format=HTML&aged=0&language=en last visited (17-11-2011)
70.) Ibid.
