International Law ( Notes FOR Exams) PDF

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International Law – II(Semester VII)UNIT 1: LAW OF SEAUNIT 2: LAW RELATING TO AIR SPACE Air law relates to civil aviation predominantly. Air apace is the space encircling the Earth and filled with air to a great extent. Codified and customary law recognise the right of state sovereignty over the air...

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International Law – II (Semester VII)

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UNIT 1: LAW OF SEA UNIT 2: LAW RELATING TO AIR SPACE 1. Air law relates to civil aviation predominantly. 2. Air apace is the space encircling the Earth and filled with air to a great extent. 3. Codified and customary law recognise the right of state sovereignty over the air space above its territory. The significance of giving such rights is as follows: i. Safety and security and military and defence interests. ii. For the purpose of prevention of commercial exploitation in international navigation which necessitates rules and regulations. 4. Post 1999, it has been seen that air space is used for the purpose of international navigation which needs to be governed by some laws. 5. Air space above land and territorial sea is essentially national airspace. 6. Air space above high seas and EEZ’s does not belong to any particular nation. 7. There are various sources of air space law, the 2 dominant ones being- customary international law and treaties. 8. Airspace can be used for international civil aviation so long as none of the treaties have prescribed any limit of airspace thereby allowing the aircraft to fly upto its highest capacity. 9. There are many views which have cropped up regarding air space law and the definition of air space. 10. Other areas of study include laws with respect to air hijacking and outer space law. 2.1 Theories 1. There are various theories or views with regard to air apace. 2. Every state has sovereign rights over its air space. The height to which a state can exercise sovereignty is a problem. Thus many theories have been propounded with respect to the same. 3. Free Air Theory i. Air space is free and open for all the states. This is because physically the air in a particular space cannot be appropriated. ii. The air space above ones territory can be used by anybody. iii. However, state practice is very different. iv. This theory is criticised on the ground that it is contrary to state practice; if such air space is free for anybody to use, it will threaten the defence and security of the state; state practices show that airspace can be used by other states only if there is a treaty or an agreement to this effect. 4. Limited Sovereignty Theory OR Absolute Sovereignty upto a Certain Height i. This theory pre-supposes that an air column has 2 part – lower zone and upper zone.

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ii.

iii. iv.

As far as the lower zone is concerned, absolute sovereignty can be exercised by states whereas, the upper zone is free for all for the purpose of international navigation. This is only because control is possible in the lower zone. This theory was criticised on the following grounds: the height of the lower zone and upper zone is not prescribed and neither is there a demarcation with respect to the upper zone and lower zone.

5. Theory of Unlimited Height/ Theory of Unlimited Sovereignty i. This theory states that a state can exercise sovereignty over air columns over their territory upto an unlimited height of their air space. ii. This is not possible as a state is not capable of exercising sovereignty upto an unlimited height. iii. If this theory were true, then satellites would not be allowed to orbit the earth. iv. This theory may affect civil aviation drastically, communication, etc. 6. Theory of Innocent Passage i. ii.

Sovereignty is subject to the right of innocent passage but this cannot be exercised practically. This right is not given to others and is not a preferred practice either unless by way of an agreement or treaty.

2.2 Airspace Law and International Conventions 1. Airspace law or International Air Law essentially means the law related to civil aviation only. 2. With the changing times, there was a need for airspace law not only to meet military and defence interests but also to meet the heads of commercial exploitation for which regulation was required. 3. Before WWI, air space above the territory of the state remained within the exclusive sovereignty of the state. However, this right did not include the right of private aircrafts even during times of peace. 4. Paris Convention of 1919 i. ii. iii. iv. v.

It was also called the International Convention for Regulation of Aerial Navigation. It was the first convention to recognise the exercise of sovereignty over the air space over one’s territory. Article 2 of the Convention allowed for the right of innocent passage of other foreign aircrafts but was not codified later on. As far as international navigation is concerned, prior authorisation of every state was required to establish the right of international navigation. The Convention also prescribed that aircrafts should carry both externally and internally, registration and necessary nationality marks (it is primarily the subject 2

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vi. vii. viii.

ix. x.

matter of domestic law). They have to be in the form of documents or on the outer body of the aircraft. Documents may also contain details of the owner of the aircraft. Every territorial state to which the air space belongs has the right to visit and inspect the flight at the time of landing or before taking off and not the time of the flight. If any aircraft is acting contrary to the convention or is inconsistent with the laws of the state it can be forced landed or can be warned or guided to another route by them. However, shooting down or the use of unnecessary force will not be allowed. This convention did not provide for the passage of private aircrafts, during the time of war. As such, aircrafts cannot pass through the territory of a state without obtaining prior permission. Even state aircrafts need special authorisation.

5. On the lines of the Paris Convention, the Havana Convention of 1928 came about which was applicable only to the American states. 6. The Warsaw Convention of 1929 deals with the liability aspect in case of accidents or crimes being committed on the aircraft. It limits the liability of private aircrafts. It also deals with the international carriage of goods. 7. This convention was amended by the Montreal Protocol of 1966. 8. Chicago Convention of 1944 i. It is also known as the Chicago Convention on International Civil Aviation. It makes an attempt to codify international civil aviation laws. ii. It provides for both scheduled airline services (A. 5) and non scheduled airline services (A. 6). It deals with the matter of codification of rules relating to commercial air traffic rights. iii. Unlike all other conventions, it provides for sovereignty over airspace above its territory. iv. Territory for the purposes of this convention includes land areas and territorial waters under the sovereignty and mandate of each state. v. This convention is applicable only to civil aircrafts and not state aircrafts i.e. those used in military, customs and police services. No state aircraft shall land or fly over such other territory without prior authorisation. vi. Civil aircrafts not engaged in schedules international air services shall be allowed to make flights into or in transit for non traffic purposes without prior permission. vii. However, in exercising such rights, prescribed rules, routes and obtain special permissions for such flights for reasons of safety. viii. They may also have permission for the taking on or discharging of passengers, cargo or mail for remuneration or hire and impose such limitations on the same as required. ix. No scheduled airline shall be operated over or into the territory of a contracting state except when there is special authorisation or permission of that state. x. Aircrafts have the nationality of the state they are registered in.

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xi.

An aircraft may be validly registered in more than one state, but its registration may change from one state to another. This convention resulted in the 5 freedom agreement which recognises the following 5 freedoms: a. Freedom to fly across the territory without landing b. Freedom to land for non-traffic purposes c. Freedom to disembark in a foreign country, traffic originating from the state of origin of the aircraft d. Freedom to pick up any foreign traffic destined to the state of origin of the aircraft e. Freedom to carry traffic between 2 countries.

xii.

xiii.

2 agreements were signed to bring these freedoms into effect: a. Chicago International Air Services Transit Agreement (a and b) b. Chicago International Air Transport Agreement (c, d and e)

Air Hijacking 1. 2. 3.

It is an act which endangers the safety of an aircraft and resembles piracy. The Tokyo Convention of 1963 provides for the followingi. Air Hijacking is not defined under this convention but this convention prohibits the following: a) Under Art. 11, it has been provided that where any person commits an act of interference, seizure or exercises wrongful control over an aircraft by force or threat, the state parties shall take appropriate steps to restore control to the commander or keep control over such aircraft. b) The article also provides that when the aircraft lands, the states shall make arrangements for passengers and crew to continue their journey as soon as possible. c) It shall also return possession of the aircraft to persons who are lawfully entitled to the same. d) Art. 13 further provides that the state shall take delivery of any person handed over by the captain and shall conduct required inquiries. ii. This convention emphasises that it is the state of registration of the aircraft which can exercise jurisdiction. iii. A. 4 permits other states to exercise jurisdiction i.e. the state other that the state of registration. iv. The objective territorial principle stands as to commission of the crime in a particular state will permit such state to have jurisdiction. There is no universal jurisdiction principle under this convention. However, the nationality principle with respect to the nationality of the person involved will stand.

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v.

vi. vii. viii.

ix.

The Convention covers 2 main things: offences against penal laws and acts (which may or may not be an offence) but jeopardise the safety of the aircraft on which there are persons or property. Thus, acts which jeopardise the good order and discipline of the aircraft are covered. The aircraft should always be in flight and should not be a state aircraft or domestic airline. None of the punishments i.e. prosecution or extradition is necessary. For example, Cyprus released all Arab terrorists; in 1976 an Italian court released all hijackers of an Israeli flight. This convention has limited applicability.

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The Hague Convention, 1970 i. Article 1 of the Hague Convention provides that the following are the essential elements of hijackinga) Unlawful use of threat or force or any form of intimidation. b) In order to seize the aircraft or exercise control over it. c) The said acts must be committed on board an aircraft in flight. d) Any accomplice of a person committing such acts shall also be guilty of the offence. ii. Hijacking is considered as an offence against international order and thus universal jurisdiction is provided for the first time. iii. Many supports have supported hijacking by terming it as a political crime, thereby making it impossible to extradite the offenders. iv. This convention stresses on the fact that hijacking should not be considered as a political crime and make the offender liable by allowing extradition of such offender and later on punishing him.

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Montreal Convention of 1971 i. The Montreal Convention gave a broader view of the term under Art.1 as followsa) Hijacking is act which is unlawful and is committed intentionally. b) By performing any act of violence against any person on board an aircraft in flight which endangers the safety of such aircraft. c) By destroying or damaging an aircraft in service thereby rendering it incapable of flight or endangering its safety. d) Placing any device or substance in an aircraft in service which is likely to damage or destroy the aircraft in flight or endanger its safety. e) Any act of interference in air navigation facilities or destroying or damaging such facilities if any information such person knows to be false thereby endangering the safety of the aircraft in flight. f) Any person who attempts to do the above acts or is an accomplice in such act is also liable to be punished. ii. It also makes an accomplice to such a crime liable.

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U-2 Incident 1. U2 is an American high altitude military aircraft shot down at a height of 2000 m inn USSR’s

2. 3. 4. 5.

airspace. This aircraft was evidently taking pictures of sensitive areas in USSR and USA did not heed to the warnings given by USSR. USA could not explain its conduct and neither did it take any objection to its flight being shot down. Further, no objections were raised when the pilot was being tried. It was a clear case of trespass by foreign military aircraft. A foreign military aircraft could enter only in the case of distress but this was not the case and use of force was allowed. The flight had taken off in Pakistan and was to land in France.

Korean Airliner Case (007 Flight) 1. In 1983, it was on scheduled service and it strayed from its route into the airspace of USSR. 2. The same was intercepted by USSR and shot down by a Soviet Military aircraft. 3. 69 passengers including crew members died. Claims for loss of life and injury were made by 14 nations. 4. ICJ held that the deviation did not happen due to equipment failure nor was there an intention to trespass. The crew however, showed lack of attentiveness. 5. They never appreciated that the air crash was off the course. 6. The air craft was shot because of the belief that it was a military aircraft which was actually spying on USSR. However, this perception was due to the flight evading the warnings of the USSR military aircraft. 7. ICAO condemned this act and both countries reached a mutual agreement on compensation. USA v. Cardova, 1950 1. A US passenger assaulted several other US passengers on an aircraft which was registered with the US while it was flying over high seas. 2. The prosecution stated that it was crime under the domestic law. The domestic law clearly stated that assault committed on the high seas aboard a vessel amounts to a crime. 3. It was held that the aircraft was not a vessel and that they were not on the high seas but above it, therefore USA did not have jurisdiction. 4. This led to the emergence of many treaties. CASE: 1. A Japanese airliner flying over Hawaii was en route to Canada. A German assaulted and killed a French citizen. 2. France, Japan and Germany are parties to the Hague Convention. 3. On the application of the Territorial Principle in A. 4 of the Tokyo Convention, the US would have jurisdiction as the offence was committed in US air space. 6

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4. On application of the Tokyo Convention, Japan could exercise jurisdiction as the aircraft was registered in Japan. 5. If the Nationality principle be applied, then Germany can exercise criminal jurisdiction as the crime was committed by the German national. 6. France could exercise jurisdiction as per passive nationality principle. 7. The person killed was actually a US Officer who was carrying sensitive information which was stolen by the German. 8. Thus, US could have jurisdiction of the case as security issues of the US were involved. 2.5 Outer Space 1. Exploration and use of outer space is possible like national air space. Such usage started in 1957 when Sputnik, the satellite was sent to outer space by USSR. Later, USA also sending satellites. 2. When the use of such space is possible there must be rules and regulations to govern such usage. 3. In 1961, a GA Resolution was passes asserting that outer space is governed by international law including the UNC. 4. The current status of outer space is that it is considered as Res Communis i.e. outer space cannot be apportioned by any single state and no state alone can exercise sovereignty in outer space. 5. Outer space belongs to everyone and every state has the right to access it. 6. Outer space has to be utilised for common good of all and usage should be beneficial to humanity. It should be used for peaceful purposes only. 7. Significance of outer space law: i. It is open for all and can be used for the beneficial purpose of all of mankind. Therefore it should be regulated by some rules. ii. The rule based system must provide for normative rules as well as institutional mechanisms so as to regulate the jurisdiction of states with respect to such activities. iii. The use of outer space is not just limited to the state, it is being used by private entities as well, which is more reason for it to be regulated. iv. There is business with respect to outer space like communications, broadcast, etc. v. It is used for meteorological purposes such as global monitoring of weather patterns. vi. Identification and location of earth’s resources by remote sensing mechanisms. vii. Flood monitoring, forest mapping, mapping of crops can all be done from outer space. 2.6 Outer Space Treaty, 1966 1. This treaty came into force in 1967. OST has all the above principles and is now regarded as customary international law. 2. OST does not prohibit militarisation and there is no total demilitarisation. The parties to this treaty have resolved not to place any nuclear weapons or any other weapons of mass destruction in the Earth’s orbit. 3. Thus no nuclear testing can take place in celestial bodies.

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4. However, what is not prohibited is that military personnel can be places for the purpose of conducting scientific research and other peaceful uses. This is known as partial militarisation of outer space. 5. Outer space is the space in the universe which is beyond the navigational airspace of a state. The range is between 100 and 200 miles for the outer limit of air space. 6. Outer space law aims at regulating the conduct of states regarding their activities in outer space. 7. On the basis of the OST there is a liability convention. 8. In 1958, GA passed a Resolution whereby it provided that outer space can be used only for peaceful purposes. 9. In 1963, a declaration was adopted by the GA whereby it stated certain legal purposes for regulating the conduct of states for exploring and exploiting outer space. They were later incorporated in the OST. 10. OST has acquired the status of customary law. 11. Establishment of military basis, installations, fortifications, testing of any weapons, conducting any type of military exercises on any celestial body is forbidden. 12. The state that launches the aircraft or where it is registered retains jurisdiction over such space aircraft or object and the personnel. It also has the corresponding duty to look into all safety aspects of astronauts. 13. It provides for assistance to personnel of the aircraft after it lands into the territory of another state; ensure safe passage of astronauts, returning of objects, etc. 14. International cooperation is the crux of the treaty as it asks states to assist in providing necessary data if a mishap occurs, etc. Instances of Outer Space Violations 1. In 1998, India and Pakistan went for nuclear testing in outer space. 2. In 1998, objections were raised against Clinton’s regime. The US Defence Department had given consent for sale of satellite technology to China. There was a possibility of misuse and usage as a weapon guided missile. 3. In 1983, USA made a proposal to place defensive nuclear military installations in outer space to prohibit itself from weapons which were used by USSR. There was a possibility of militarisation in OS. 4. In 1997, USA announced methods for protecting its satellites form jamming which were nuclear powered methods or laser method...