Abstract
The foregoing discussion pertained solely to civil airports. The Chicago Convention, by virtue of Article 3 asserts that the Convention applies only to civil aircraft, thus excluding State aircraft. This presumption extends to the Annexes to the Convention as well as the ICAO manuals that have so far been discussed in this book. However, there is no specific exclusion of military aircraft landing at civilian airports. Furthermore, in terms of domestic airports, this distinction between civil and military airports is blurred. For example, in the United States there are 23 military airfields that follow the joint use concept of having both military and civil aircraft landing at and taking off from them.
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Notes
- 1.
van Zandt (1944), pp. 28, 93.
- 2.
Wings for Peace—Labour’s Post War Policy for Civil Flying, published by the Labour Party of England, April 1944, cited in van Zandt, Id. at 1.
- 3.
Flight, Vol. XLV, No. 1331, January 27, 1944, at pp. 97–98.
- 4.
Warner (1942), p. V.
- 5.
Sochor (1991), p. xvi.
- 6.
Schenkman (1955) at p. 6.
- 7.
Id. vi.
- 8.
Abeyratne (2007) at 25–47.
- 9.
The potential explosion of unmanned aircraft Systems (commonly called UASs) in airspace also brings to bear the need to have a closer look at the civil-military aviation airspace demarcation. UASs are commonly associated with military operations in many parts of the world. The question that would arise in this context is how would a State feel about sharing airspace over contiguous States with a swarm of UASs operated by a mix of military/law enforcement and commercial enterprises? For more information see Abeyratne (2009), pp. 503–520.
- 10.
- 11.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944. ICAO Doc 7300 9th edn, 2006.
- 12.
In October 1949, on the occasion of the adherence of Israel to the Chicago Convention, the Government of Egypt advised ICAO that, in view of considerations of fact and law which at that time affected Egypt’s special position with regard to Israel and in pursuance of Article 89, Israeli aircraft may not claim the privilege of flying over Egyptian territory. See letter dated 16 October 1949 reproduced in Annex A to Doc 6922-C/803 at p. 125. It was Egypt’s claim, as was later clarified by Egypt upon a query of the Secretary General of ICAO that a state of war existed between the two countries. The Government of Iraq also advised ICAO along similar lines, that a state of emergency had been declared on 14 May 1848 and therefore Article 89 was applicable and all Israeli aircraft were denied the privilege of flying over the territory of Iraq. On 28 November 1962 the Government of India informed ICAO that as a result of external aggression into Indian Territory by the People’s Republic of China a state of grave emergency existed and the Government of India may not find it possible to comply with any or all of the provisions of the Chicago Convention. On 6 September 1965 the Government of Pakistan notified ICAO of the state of emergency under Article 89. In all instances, ICAO relayed the communications received to all its member States.
- 13.
The theme of the Forum was “Time to take it global: Meeting each other’s needs without compromising the Mission”. The event was held as a follow up to recommendations of the 11th Air Navigation Conference (Doc 9828, Rec. 1/2) concerning coordination with military authorities with a view to achieving enhanced airspace organization and management and as an integral supporting mechanism of the successful series of civil/military air traffic management summits instituted by the Air Traffic Control Association (ATCA). It was also a follow up to ICAO Assembly Resolution A36-13, Appendix O, Coordination of civil and military air traffic wherein States are asked to take appropriate action to coordinate with military authorities to implement a flexible and cooperative approach to airspace organization and management. The Forum was intended to create awareness among civil and military policy makers and regulators, civil and military air navigation service providers (ANSPs) and civil and military airspace users, on the need to improve civil/military cooperation and coordination in support of an optimum use of airspace by all users.
- 14.
The International Air Transport Association, an association of air carriers, was formed in 1919 as the International Air Traffic Association. Encapsulated in IATA’s overall mission are seven core objectives: to promote safe, reliable and secure air services; to achieve recognition of the importance of a healthy air transport industry to worldwide social and economic development; to assist the air transport industry in achieving adequate levels of profitability; to provide high quality, value for money, industry-required products and services that meet the needs of the customer; to develop cost effective, environmentally-friendly standards and procedures to facilitate the operation of international air transport; to identify and articulate common industry positions and support the resolution of key industry issues; and to provide a working environment which attracts, retains and develops committed employees.
- 15.
CANSO is the global voice of the air traffic management profession. Its members comprise over 50 air navigation service providers who control more than 85 % of global air traffic movements. CANSO seeks to promote best practices within the industry.
- 16.
EUROCONTROL, the European Organisation for the Safety of Air Navigation, is an intergovernmental organisation made up of 38 Member States and the European Community. Its primary objective is the development of a seamless, pan-European air traffic management (ATM) system. EUROCONTROL contributes to making European aviation safer, performance-driven and environmentally sustainable. It was originally founded in 1960 as a civil-military organisation to deal with air traffic control for civil and military users in the upper airspace of its six founding European Member States. EUROCONTROL has developed into a vital European repository of ATM excellence, both leading and supporting ATM improvements across Europe.
- 17.
See Civil-Military Cooperation—The CANSO Perspective, October 2009.
- 18.
Groenewege (1999) at 437. It must also be noted that an aircraft has been defined in Annexes 6–8 to the Chicago Convention as any machine which can derive support in the atmosphere from the reactions of air other than the reactions of air on the Earth’s surface.
- 19.
Ibid.
- 20.
- 21.
In a report released on 21 December 2009, Venezuelan President Hugo Chavez is reported to have announced that, on Sunday 20 December, military drones had penetrated Venezuelan airspace along the North-western border with Colombia He had warned that Venezuela was prepared to defend itself if any State were to violate its sovereignty. See http://www.venezuelanalysis.com/news/5022. On 4 January 2010, it was reported that a US drone had fired two missiles in Pakistan, flattening an extremist hideout in Pakistan’s lawless tribal belt on Sunday 3 January 2010, killing five militants in a recent spike in drone attacks. See http://www.channelnewsasia.com/stories/afp_asiapacific/view/1028351/1/.html.
- 22.
As per Article 44 of the Chicago Convention.
- 23.
- 24.
FIRs were devised by ICAO in the 1950s to provide facilities and services to the civilian aircraft in the international airspace. FIR arrangements solely entail technical responsibility. It does not change the free status of the airspace over the high seas under international law.
- 25.
Supra, note 23 ibid.
- 26.
Article 3 of the Chicago Convention states that the Convention applies only to civil aircraft and not to State aircraft, and goes on to explain that aircraft used in military, customs and police services shall be deemed to be State aircraft. Article 3 c) prohibits State aircraft of one State from flying over the territory of another State or landing thereon without special agreement or otherwise.
- 27.
Supra, note 13.
- 28.
Global Air Traffic Management Operational Concept, ICAO Doc 9854, AN/458, First Edition-2005, Chapter 1, Para 1.1.
- 29.
Chicago Convention, Supra, note 11 Article 3.
- 30.
Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation, Assembly Resolutions in Force (as of 28 September 2007), Doc 9902, II-2.
- 31.
Supra, note 30.
- 32.
In its briefing, ICAO emphasized that cooperation between civil and military authorities should be aimed at achieving optimal use of the airspace resulting in increased airspace capacity, operational flexibility, and savings in flying time, fuel and CO2 emissions. The Forum noted that safety, economical impact, efficiency and interoperability are objectives shared by both civil and military aviation communities.
- 33.
An operational concept is a statement of what is envisioned.
- 34.
Air traffic management is the dynamic, integrated management of air traffic and airspace—safely, economically and efficiently—through the provision of facilities in collaboration with all parties. See ICAO Doc 9854, supra note 31 at 1-1.
- 35.
Ibid.
- 36.
Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations, ICAO Doc 9554-AN/932 First Edition, 1990, paragraph 3.1.
- 37.
Id. Paragraph 3.1.1. Examples of military activities which may pose a threat to civil aircraft and which should be coordinated with ATS authorities include practice firings or testing of any weapons air-to air, air to surface, surface to air in an area or in a manner that could affect civil air traffic; certain military aircraft operations such as air displays, training exercises and the intentional dropping of objects and paratroopers; launch and recovery of space vehicles; and operations in areas of conflict, when such operations include a potential threat to civil air traffic. See Paragraph 3.2. of Doc 9554.
- 38.
Id. Paragraph 8.1.
- 39.
Id. Paragraph 8.2.
- 40.
Id. Paragraph 8.3.
- 41.
Id. Paragraph 8.4.
- 42.
Id. Paragraphs 9.1 and 9.2.
- 43.
Doc 9554, Paragraph 10.2.
- 44.
Id. Paragraph 10.3.
- 45.
Id. Paragraph 10.4.
- 46.
See Manual Concerning Interception of Civil Aircraft, ICAO Doc 9433-AN/926 Second Edition—1990.
- 47.
Id. Paragraph 3.2.4.1.
- 48.
Id. Paragraph 3.2.6.1.
- 49.
Id. Paragraph 3.1.7.1.
- 50.
Id. Paragraph 3.1.9.1.
- 51.
- 52.
- 53.
Shaw (2003) at 120.
- 54.
Unmanned aircraft are sometimes referred to in this article as drones.
- 55.
The UA is not a new strategy and has nearly a century-old history in aviation. First included in Jane’s All the World’s Aircraft in 1920, UAs were tested during World War II, but not used in combat during that war. Germany’s use of the simple yet deadly V-1 “flying bomb” during World War II laid the groundwork for post-war UA programs in the United States. However, it was not until the Vietnam War in the late 1960s and early 1970s that UAs such as the AQM-34 Firebee were used in a surveillance role (by the United States). The Firebee exemplifies the versatility of UAs. Initially flown in the 1970s, it was modified to deliver payloads and flew its first flight test as an armed UA on December 20, 2002.
- 56.
Executive Order 11905 [in Section 5(g)] issued by President Ford in 1976 explicitly provides that no employee of the United States shall engage in, or conspire to engage in political assassination. Later, President Reagan issued Executive Order 12333 which, by Section 2.11 provides that no person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination. The Order goes on to state that no agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by the Order.
- 57.
An Unmanned aircraft is a self piloted or remotely piloted aircraft that can carry cameras, sensors, communications equipment or other payloads. Therefore in its ultimate definition, a UA is an aircraft, which is defined by Annex 2 to the Convention on International Civil Aviation (Chicago Convention) as “any machine that can derive support in the atmosphere from the reactions of the air other than reactions of the air against the earth’s surface.” In addition to this quality, a UA is also a powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. A UA can be expendable or recoverable, and can carry a lethal or non lethal payload. UAs have been used to conduct reconnaissance and intelligence-gathering for nearly 60 years (since the 1950s).
- 58.
Unmanned Aerial Vehicles: Background and Issues for Congress, Report for Congress written by Elizabeth Bone and Christopher Bolkcom, Congressional Research Service: The Library of Congress, 25 April 2003 CRS 1.
- 59.
ICAO, Secretary General, Unmanned Aircraft Systems (UAS), Circular Cir 328 AN/190 (Montreal: ICAO, 2011) at x.
- 60.
Austin (2010) at 3.
- 61.
Ibid.
- 62.
Ibid.
- 63.
See generally, Friedman (2010) at 1.
- 64.
Austin (2010) at 304–314.
- 65.
Ibid. at 4.
- 66.
See generally Newman (2002) at 49.
- 67.
Ibid.
- 68.
Ibid. at 5.
- 69.
Ibid. at 6.
- 70.
Austin (2010) at 273.
- 71.
Ibid. at 274.
- 72.
Ibid.
- 73.
The U.N. spokesman Martin Nesirky told reporters that “Unarmed UAVs (unmanned aerial vehicles) will allow our peacekeepers in the Democratic Republic of Congo to monitor the movements of armed groups and protect the civilian population more efficiently. The selected vendor is the Italian company Selex ES. The UAV is known as the Falco and is designed to be a medium altitude, medium endurance surveillance platform capable of carrying a range of payloads including several types of high resolution sensors.” See Michelle Nichols, ‘Italian firm to provide surveillance drone for U.N. in Congo,’ Reuters (1 August 2013) online at http://www.reuters.com/article/2013/08/01/us-congo-democratic-un-drones-idUSBRE97014720130801.
- 74.
Roberts (2013).
- 75.
Ibid.
- 76.
Lazarski (2002).
- 77.
Bone and Bolkcom (2003).
- 78.
See generally Staff, Commercial use of UAVs—Widespread in Japan, in 2004 Yearbook: UAVs Global Perspective 138 (UVS International, Blyenburgh & CO.); Id. at 127.
- 79.
UAV Categorisation, in 2004 Yearbook: UAVs Global Perspective 156 (UVS International, Blyenburgh & Co.) at 156.
- 80.
Butler (2013).
- 81.
Denis Fedutinov, a UAV expert described these new state of the art UAVs, “These are the short-range systems, with a range measuring from 5 kilometres to 25 kilometres, Denis Fedutinov says. These are small devices that are comparable to a model aero-plane. But they are very effective in ensuring the transmission of video- and photo-images in real time, and they can also reconnoiter over by the hill, in the close-in zone. These devices make it possible for the lowest-echelon units to quickly obtain intelligence and operational information and depend in no way on higher-echelon air-reconnaissance systems.” See Nekhai (2013).
- 82.
Evans (2013).
- 83.
Harthy (2013).
- 84.
Cole and Wright (2010a).
- 85.
Peterson (2005) published at 18.
- 86.
See Friedman (2010) at 33, Friedman notes, “Militaries adopt revolutionary technology and tactics because they cannot go on the way they have been operating. In some cases, such as ours, circumstances make the existing way of war either literally impossible or unaffordable-or there are new requirements that existing forces cannot meet. In others the general adoption of some new technology makes it impossible to go on as before.”
- 87.
See Capaccio (2010): “[t]he new aviation plan projects spending for all aircraft to increase to $29 billion by 2020 from about $22 billion in fiscal 2011, an average of 3 percent annual growth adjusted for inflation.”
- 88.
Shachtman (2009).
- 89.
Convention on International Civil Aviation, 7 December 1944, 15 UNTS 295, 61 US Stat 1180 (entered into force 4 April 1947).
- 90.
Article 36 of the Chicago Convention reads, “Each contracting State may prohibit or regulate the use of photographic apparatus in aircraft over its territory.”
- 91.
Peterson (2005) at 47.
- 92.
See Cole and Wright (2010b).
- 93.
Micheal (2012) at 65.
- 94.
The fact that majority of the UAs like Predator, Global Hawk, and Reapers fly above 70,000 feet and are beyond the technological or military capacity of most States to detect them, let alone shoot them.
- 95.
Laing (2013).
- 96.
Kahlili (2013). “A Russian military team from its air and space division had secretly entered Iran days after a strategic agreement between the two countries in 2007 and was stationed at Revolutionary Guard bases to help the Guards with its weapons program and access to modern U.S. technology. With this collaboration, all the information of the stealth drone is now in the hands of the Russians, and much has been given to Iran’s Defense Ministry.”
- 97.
Ibid.
- 98.
The Law of the Sea, Original Text of the United Nations Convention on the Law of the Sea, all Annexes and Index, United Nations: New York, 1983. Moreover Article 29 gives the definition of a warship i.e. “a ship belonging to the armed forces of a state bearing the external marks distinguishing such ship of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.”
- 99.
Abeyratne (2010) at 162.
- 100.
Cheng (1962) at 148.
- 101.
Annex 2 to the Convention on International Civil Aviation, “Rules of the Air”, 2.1.1 Note.
- 102.
Convention on International Civil Aviation also known as the Chicago Convention was signed at Chicago on December 7th, 1944. See ICAO doc 7300/9 Ninth Edition, 2006.
- 103.
Abeyratne (2010) at 168.
- 104.
In the absence of any definition of ‘military services’ the interpretation must be done in accordance with the Article 31 of the Vienna Convention on the Law of Treaties that “ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
- 105.
See, Accident Investigation Board Report, August 1996, at 4 when USAF CT-43 A, a military equivalent of B-737-200 carrying VIP Croatian officials crashed at Dubrovnik on 3 April 1996; the investigation report deemed the aircraft as civil aircraft per Article 3 of the Convention. See also, Resolution 1562 (2007) of the Parliamentary Assembly of the Council of Europe titled “Secret detention and illegal transfers of detainees involving Council of Europe member States” which was critical of countries involved with US authorities in transporting suspected terrorists in Gulfstream civilian aircrafts online at http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta07/eres1562.htm. In the aftermath of 911, special rendition flights were performed to transport high-value terrorists for questioning in countries where they would not enjoy immunity against torture. The aircrafts identified were civilian B-737 and had US nationality marks but were used in a secret operative manner that would categorize them as State aircrafts. See also Milde (2008), pp. 477–486.
- 106.
Warrick and Finn (2010).
- 107.
ICAO document LC/29-WP/2-1 (1994) at pp. 11–12.
- 108.
As Schmitt and Schmidt reported, “American contractors say they have been told that the State Department is considering to field unarmed surveillance drones in the future in a handful of other potentially high-threat countries, including Indonesia and Pakistan, and in Afghanistan after the bulk of American troops leave in the next two years…The drones are the latest example of the State Department’s efforts to take over functions in Iraq that the military used to perform. Some 5,000 private security contractors now protect the embassy’s 11,000-person staff, for example, and typically drive around in heavily armored military vehicles.” See Schmitt and Schmidt (2012).
- 109.
Ibid.
- 110.
‘The Montreux Document’ is not legally binding however, it highlights the responsibilities of Contracting States that hire Private Military Security Companies (PMSCs) and emphasizes that States have an obligation to uphold international humanitarian law and have a duty to hold PMSCs accountable for criminal behavior. Both the US and Iraq have ratified ‘The Montreux Document.’ See “The Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict” A/63/467-S/2008/636 (entered into force on 17 September 2008), online at www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf.
- 111.
Cole and Wright (2010).
- 112.
Michael Smith (2012).
- 113.
Central Intelligence Agency, online: CIA https://www.cia.gov/about-cia/todays-cia/index.html.
- 114.
As Solis notes, “An unlawful combatant is one who takes an active and continuous part in armed conflict who therefore should be treated as a combatant in that he/she is a lawful target of attack, not enjoying the protections granted to civilians. Because unlawful combatants do not differentiate themselves from civilians and do not obey the laws of armed conflict they are not entitled to the privileges of combatants, for example, prisoner-of-war status.” See Solis (2007) at 130.
- 115.
Byman (2013), pp. 32–43 at 32.
- 116.
Id. 32.
- 117.
Kurth Cronin (2013), pp. 44–54 at 44.
- 118.
Id. 47.
- 119.
The Bureau of Investigative Journalism has reported that in 2011 alone 900 non combatants including almost 200 children were killed by drone strikes. See Byman (2013), p. 64 at 37.
- 120.
Simpson (2007) at 133.
- 121.
Simpson (2011) at 35.
- 122.
Decision of 2 October 1995, Case No. IT-94-1-T 14 July 1997, United Nations International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of former Yugoslavia since 1991.
- 123.
Article 51 states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.
- 124.
Corfu Channel Case (United Kingdom v. Albania), ICJ Reports (1949) at 22.
- 125.
The Geneva Conventions and their Additional Protocols are at the core of international humanitarian law, the body of international law that regulates the conduct of armed conflict and seeks to limit its effects. They specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war.
- 126.
Dershowitz (2006), p. 72.
- 127.
James Joyner, Was Afghanistan Worth It? The National Interest, http://nationalinterest.org/commentary/was-afghanistan-worth-it-8182.
- 128.
UK riots: text of David Cameron’s address to Commons, The Telegraph, 11 August 2011, at http://www.telegraph.co.uk/news/uknews/crime/8695272/UK-riots-text-of-David-Camerons-address-to-Commons.html.
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Abeyratne, R. (2014). Joint Use of Military and Civil Airports. In: Law and Regulation of Aerodromes. Springer, Cham. https://doi.org/10.1007/978-3-319-04780-5_7
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