law Thesis 国外大学dissertation要求
10-15, 2014
最重要的和最有争议的区域国际法
使用武力是国际法中最重要的和最有争议的地方之一。这尤其适用于现今社会的国家间冲突，需要严明的规章制度以防止不必要的暴行。由于多次确认一国拥有专属主权的领土，在那里可以行使领空的管辖权，但违反这些都可能点燃武力，以保护自己的领土。
这项工作使用武力空域，其中主要的影响是过去发生的话题。在第一章中，简述武力的使用，从它的历史，直到目前的考试，简析覆盖区域各种法律文书的目的，这部分后面的小节将讨论侵略的实际含义。
其次将考虑自卫权，包括它的定义，适用范围和所产生的任何问题。战争法是这项工作的最后理论部分。在第三章中介绍了一些适用于无辜者保护的主要规则，在战争中要遵守国家的规则。
The Most Important And Problematic Areas Of International Law International Law Essay
Use of force is one of the most important and problematic areas of international law. That applies especially nowadays when conflicts among the States need regulations to prevent unwanted atrocities. As was many times confirmed a State has exclusive sovereignty over the airspace of its territory, where it can exercise jurisdiction, but violation of which may ignite the power of force in order to protect its own territory.
This work analyses the topic of use of force in airspace, where the main impact is on shoot downs which happened in the past. In the first chapter an examination of the use of force from its history until present will be conducted. For that purposes are used various legal instruments covering the area. This part is followed by subchapter discussing the meaning of aggression and what it actually is.
Secondly the right of self-defence will be considered, its definition, applicability and any problems arising out of it. Laws of War are the last theoretical part of this work. In this third chapter are described some of the main rules which are to be observed when State is in war, as well as rules applicable for the protection of innocent ones. The fourth chapter brings examples of shoot downs where it is possible to observe the pointlessness of use of force, but sometimes there are examples showing the opposite. This work is concluded by answering the question from the title whether criticism can change practice in this area of law.
i. Use of Force
The need to establish the rules in relation to use of force was raised due to many incidents in history. It was in 1928 when first legal instrument was adopted – the General Treaty for the Renunciation of War, known also as Kellogg-Briand Pact. This treaty established that all the conflicts which might arise among the states would be solved peacefully. The importance of the treaty was not only because it was ratified by 63 states, but also because it was used by tribunals in Nuremberg and Tokyo [1] after Second World War. [2] Four main points established basic principles of the use of force. Firstly, every Party assures that war will not be considered as solution, and then any clashes on the international level will be sorted out peacefully. There were two reservations by which self-defence is acceptable, as well as obligations derived from the Covenant of the League of Nations [3] . This treaty is still enforceable, but today there exist also newer legally binding document, crucial in relation to use of force – the United Nations Charter. Charter is enforceable since 24th October 1945 and it is possible to see that those four elements from the Pact, later created the core of the Charter of United Nations. In the Art.2 are set out the most important principles. Art.2(3) puts an obligation on the Member States that all disputes have to be resolved in the way that peace and security of the world will not be affected in any way. [4] Art.2(4) states:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations. [5] ”
As Grief observed, this provision is binding for airspace of both – national territory and high seas. He also pointed out that Art.2(4) is recognisable principle of customary international law, not only under the UN Charter [6] , as was confirmed by the ICJ in Nicaragua case [7] . According to Grief it is important to establish if the Art.2(4) is enforceable towards the aircraft of another State. The discussion was raised on the basis that “territorial integrity and political independence” have to be maintained, and Bowett states that it has the effect of prohibition. He analysed it in relation to intention – when there is specific intention, it would mean that territory or independence is in danger, whereas, without specific intention is breached Art.2(4) generally, because use of force is prohibited when not in accordance with the Purposes of the United Nations. However, Brownlie disagreed, because according to him, prohibition of the use force is more strict in Art.2(3), where it applies to any dispute to be solved in peaceful way. Art.2(4) relates mainly to State and its territory. [8]
Bowett approach seems to be stricter, as it implies responsibility in both ways. Therefore, it can be said that whenever airspace of the State′s territory is invaded without any authorisation, it can be classified as violation of the State′s integrity. The question is how it would be considered in the airspace of high seas. Even though an aircraft is registered in a particular State, it is hardly possible that use of force upon aircraft in airspace of the high seas would constitute the attack towards the integrity of that State. What could be invoked is that it could mean an infringement of the State′s political independence. As Higgins suggests, it can happen in situation when threat of use of force is applied on the aircraft, under the conditions of gaining power over the government of the State of registration (also when Head of State or Government is in the aircraft). [9]
It can be derived from the above mentioned that use of force is unacceptable and forbidden by Art.2(3) as incompatible with the Purposes of the United Nations, by Art.2(4) where any threat or use of force is forbidden towards another State, and by customary international law generally. Therefore, use of force in relation to aircraft in national airspace or airspace of high seas is prohibited too.
There arises also a discussion whether there is any difference between state and civil aircraft in relation to use of force. As was decided by the ICAO Assembly, after the shoot down of Korean Airliner in 1983 [10] that use of force is prohibited upon a civil aircraft by customary international law. Cheng here thinks that neither Art.2(4) nor Art.51 are setting the principles under which State is bound to take care of its own citizens or non-citizens, and those are categories of people who would be on board of civil aircraft [11] . Those articles, he suggests, are limited to relations between State and the UN or other State. [12]
However, using the wording from the Declaration on Principles of International Law, where Art.2(4) is explained, it reads:
“Every State has duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.” [13]
Therefore, it could be assumed that by using explanation from the above quoted Declaration, the use of force upon a civil aircraft with another State′s involvement is prohibited under the Art.2(4). The same would apply if the civil aircraft would be over the high seas, where applies exclusive jurisdiction of the State where that aircraft is registered. Grief adds that bounds with the State securing the diplomatic protection in international law are even more apparent. [14]
After the shoot down of Korean Airliner, the UN Security Council drew up a resolution [15] in which several States made a reference to Art.2(4) that use of force is strictly prohibited upon any aircraft in the high seas; and therefore expressed their rejection of the shoot down itself. Unfortunately, the USSR used their right of veto when passing this resolution [16] .
Moreover, there applies also Chicago Convention [17] which strictly prohibits use of armed force upon the civil aircraft in its Art.3. This article has been amended after the above mentioned shoot down of Korean Airliner and says that passengers in the civil aircraft must not be put into danger of life by usage of weapons of another State. The use of force shall not be in conflict with the aims of the Convention, and supports the right of self-defence as defined in Art.51 of the UN Charter. It can be observed that provision lacks threat of use of force, and recalls only to usage of weaponry, which is prohibited. Cheng criticised that by using verb “refrain” the provision implies that security and endangerment of passengers’ lives is about to be only avoided”. Prohibition would be achieved according to Cheng when using verb “abstain”. Although it can be argued at this point that problem of Cheng is solved in the preamble where use of weapons upon civil aircraft is prohibited generally. This was confirmed by the ICAO Council when discussing the shoot down of Iranian Airliner [18] by the U.S.A. in 1988. [19]
Therefore, threat or use of force or weapons is strictly prohibited under customary international law, the UN Charter and Chicago Convention and applies to any type of aircraft irrespectively whether over the national territory or the high seas.
ii. Aggression
In order to determine what use of force means, there was necessary to establish the definition of the term “aggression”. It was done in 1974 as the Resolution 3314 on the Definition of Aggression.#p#分页标题#e#
Art.1 defines aggression as:
“...use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other matter inconsistent with the Charter of the United Nations...” [20]
It is possible to observe that above quoted definition again does not contain term “threat”, but includes “sovereignty”. However, this absence of the threat is rectified later in the Art.4, where are means of force not falling under the classification of armed ones discussed.
As it follows in the Art.2, prima facie evidence is established when one State uses the force upon other State, having no permission of the Security Council. [21] In the Art.3 are described means of armed force which would be considered as use of force by the Security Council. It is important to add that this list is not final, and it may be reconsidered by Security Council on the basis of Art.4. [22] For the purposes of this work is significant Art.3(d), which among the acts of aggression includes “...attacks by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State.” [23] Grief implies that this provision includes any type of attack (air-to-air, surface-to-air) as well as there is apparent no description of type of aircraft. Therefore it could be assumed that it is meant to apply to military, but also on civil ones. Confusion might arise when analysing “forces” and “fleets”. It could create an impression that attack needs to be performed in broader scope (not only on one aircraft), however looking back to the UN Charter and its definition of the use force, it is possible to conclude that use of force in airspace would constitute an aggression, either over the territory or high seas. [24]
Use of force and aggression are interconnected through many international legally binding documents, and therefore cannot be seen only from interpretation of one of them. Analyses show that in order to establish what constitute aggression; use of force is essential part of it. More importantly, above written confirms that threat or use of force in airspace are forbidden.
Right of Self-Defence
Right of self-defence is not a new concept established by the UN Charter. It is derived from customary international law where it belongs since Caroline case [25] .
In this dispute the U.S. Secretary of State Webster argued that:
“...there exists a necessity of self-defence instant, overwhelming; leaving no choice of means and no moment for deliberation...means used must then be proportionate to the gravity of the threat or danger... [26] ”
The concept was acknowledged by his British partners and it could be said that since then it is considered as customary international law. That approach was confirmed by the ICJ in the Nicaragua case [27] . The UN Charter also approved the concept, and defined two exceptions from the use of force. One of them is the right to self-defence, which is defined in the Art.51 of the UN Charter. It states:#p#分页标题#e#
“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 the measures necessary to maintain international peace and security. Measures taken 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. [28] ”
As well as Art.2(4) also Art.51 brought dramatic discussion among the academics. Brownlie argues that wording is limited to an occasion when actual attack happens and has no consideration on facts that might lead to potential attack. On the other side Bowett is saying that any circumstances leading to attack would be considered as threat, and therefore contrary to Art.2(4), so request for assistance of Security Council would be applicable. It is important to note that Art.51 was derived from customary international law, and so is stressed even in its first sentence – self-defence is ′inherent′ right. It can be assumed that if State is using power against other State as a way of self-defence, which is proportionate and reasonable, it could be justified under international law as confirmed in Nicaragua case.
Armed attack in relation to aircraft is somewhat more complicated. It brings many border situations due to improvement of technology. It has been broadly discussed what really constitutes an armed attack in airspace. One argues that it is only after firing the missile, others oppose that is when missile is ′locked′ on the position of aircraft. There are situations such as with thermo navigating missiles, targeting or other circumstances which could lead to misleading the radar activity, though it is only so called ′recon′ mission. Which situation really brings the right to self-defence is still unclear, but there exists general practice that right arises when the missile has been fired. This is to eliminate situations where too early respond could lead to conflict between the States. Brownlie at this point suggests that after missile has been fired over the high seas, it is possible to protect the aircraft by shooting the missile itself. [29] However, there again arises conflicting situation, as not only technology, but also human factor can be sometimes misleading. That was observed in shoot down of Libyan Aircraft [30] in 1989.
Some critics can argue when attack happens over the high seas the right of self-defence is also applicable, but it is not the same as when aircraft is over the State′s territory. However, except the above mentioned customary international law, in some circumstances it is possible to apply North Atlantic Treaty [31] Art.5 that contains a provision according to which an armed attack to one Party to NATO shall mean an attack to all its members. That provision is effective anywhere in the North Atlantic area; and can be applied also to an armed attack of the aircraft. Also applicable here is decision of the ICJ in Corfu Channel case [32] , where was confirmed that right to self-defence is exercisable also in the territory of high seas while being attacked during passing it inoffensively. That principle can be taken into airspace of high seas having the same circumstances.#p#分页标题#e#
It is clearly established that bounds between state and military aircraft are very narrow. Therefore, exercise of the right to self-defence of the State is obvious. In case of civil aircraft some can argue that it is not applicable. What needs to be stated is civil aircraft has its ′home′ State, which is the State of registration, providing a diplomatic protection to that airplane. ICJ held in Nottebohm case [33] , that diplomatic protection of the State is a means of defence. This analysis is supported also by North Atlantic Treaty Art.6, which does not specify the type of aircraft, only refers to it generally - ′the aircraft′, as well as the Definition of Aggression recognizing ′air fleets′. [34]
Right of self-defence appears to be very complex. Before exercising this right there has to be considered various issues – if the missile was really fired, what other implications might arise by retaliation, if it is a situation of necessity, political situation or possibility of escape or destruction fired missile. It is very important to realize that to retaliate legally in the international law means to act out of necessity and to be proportionate.
Laws of War
Although today the war known from history is not applicable anymore, it might still arise. Some argue that war itself is illegal out of customary international law and the UN Charter, but how would then be called an armed conflict among the States, carrying the signs of war despite having certain rules, with the consent of the Security Council or in self-defence? It would be probably war, where certain rules in relation to airspace also apply. In the airspace over the high seas is normally exercised freedom of aviation. This right can be limited in order to protect aircraft and secure the airways. There is most of the time a possibility of other airways to be used. Neutral aircraft can be also subject to control and other measures necessary to carry out successfully combat missions. [35]
Laws of War or ′Jus in Bello′ were adopted in 1899 [36] and 1907 [37] as Hague Conventions. At this time no air force existed therefore those rules do not particularly address air war, but modern war rules in general. They have to be differentiated from ′Jus ad bellum′, which is the set of rules when State is going into war whereas previous directs State in the war condition. [38]
It is strictly prohibited to violate the airspace of neutral State for the purposes of any military operations. For aerial missions are determined areas such as airspace of high seas. Use of weapons is not upon the State itself. There has to be taken into consideration the outcome of usage such weapon. The rule is that weapon should not cause massive losses of lives or unbearable suffering of wounded. The only legitimate target is a military personnel who is clearly identifiable by his uniform and in case of aircraft having marks showing State of registration. One of the most important rule is that while exercising aerial military mission there has to be taken all possible preventative measures to protect civilians and their properties, as civilians are not a legitimate military target. [39]#p#分页标题#e#
Despite the fact that the rules above have not been implemented they are considered as rules of customary international law, and they were put together in 1923 as document called “Hague Rules of Air Warfare”. Specifically, Art.22 states that it is forbidden to bomb civilians from an air as a purpose of mission. That principle is strengthen in Art.24(1) that other than military object is strictly forbidden as an aim of aerial bombing (it is possible to see here how legal instruments and customary international law intersect each other – Chicago Convention prohibits any armed attack upon civil aircraft, in war civil aircraft is not a legitimate target) [40] . According to Art.57(2)(a)(iii) Additional Protocol I [41] leaders of armed forces must:
“...refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilians objects, or a combination of thereof, which would be excessive in relation to concrete and direct and direct military advantage anticipated. [42] ”
What type of weapons is allowed is specified in the Art.18 [43] of the Air Warfare document, and the main purpose for determining such weapons is that nobody should suffer extensively and unnecessarily. There is also determined what to do with survivors of shot down aircraft. According to Art.20 when aircraft is shot down and crew ejected themselves they become an illegitimate target when descending. However, that does not apply for paramilitary persons descending for purpose of committing other atrocities on the ground. Therefore, it has to be stressed out that when attacking them; they have to recognize according to the uniforms and register signs. [44]
Case law on the Use of Force related to Shoot downs
Although the law described above seems generally clear, it appears from the case law that not always is applied correctly, sometimes is even misused for military or political achievements. In the 1950s it was especially conflict between the USA and the USSR, where USSR shot down on several occasions US air fighters. In the 1952 was US aircraft shot down, because USSR claimed it had entered its sovereign territory [45] . Few years later, in 1954, while US aircraft positioned over the north part of Hokkaido island, was again shot down by Soviet fighters [46] . The reason was flying too close to the Soviet airspace, following an accusation of espionage. However, at this time USA decided to apply to the ICJ, on the basis that there were committed intentional attacks towards the USA, having no particular reasons. USSR solved the situation according itself, by rejecting jurisdiction of the ICJ persisting that US fighters violated the airspace of the USSR. A little bit diplomatic approach was used in 1955 where Soviets attacked US aircraft in Bering Straits [47] . Despite a usual defence of violation of Soviet airspace, USSR offered compensation. It was based on statement that the mistake might occur on both sides. In 1960 was again US aircraft shot down by Soviets in Barents Sea [48] . Although Security Council attempted to pass resolution to settle nearly 10 years going dispute between the USA and USSR, Soviets used their right of veto [49] . It is noteworthy, that none of the shoot downs was performed in self-defence, state of war or with the authorization of Security Council.
Civil airliner of Libya was shot down by Israeli air fighters in 1973. Libyan airplane got unfortunately due to weather over Sinai Peninsula, which was controlled by Israel. After being approached by Israeli jets and asked to follow the instructions, pilot refused them so Israeli jets shot it down. It was declared by Israel that it violated their airspace and because of being in war condition with Egypt, where airliner flew, Israeli were suspicious when pilot did not want to comply with instructions. Incident raised a wave of criticism towards Israel, which did not admit responsibility, but offered compensation for the victims [50] .
In 1981 American fighters shot down two Libyan ones in the Gulf of Sidra far from Libyan Coast. Libya claimed that they violated sovereignty that Libya has over the gulf. American fighter was acting in self-defence, as being attacked over the high seas. Quite comparable incident happened in 1986 [51] .
During the Iraq-Iran war was shot down Iranian civil airliner in 1988. It was shot from US ship in Persian Gulf, which defended itself saying that they acted in self-defence as they believed it is Iranian fighter. ICAO recalled to the Chicago Convention and stressed in its report that safety should be primary objective, however there would arise an issue of the legitimacy of the American attack [52] . Right to claim self-defence is applicable only in situations where threat or use of force could be apprehended. In this situation it is disputable whether civil airliner causes any of the two elements, even if it would be a fighter, USA did not prove the grounds on which they claimed self-defence, other than misbelieve.
Aerial Incident at Lockerbie happened in 1988 as a result of bomb explosion on the board of civil aircraft over the Scottish town Lockerbie. All of 260 passengers died as a result. During the investigation was found that two Libyans are responsible, and therefore USA, UK and France claimed from Libya to extradite them. Libya opposed that it is unconstitutional to extradite its own national. However, three permanent member of the Security Council enforced Resolution 731. By the time Libya brought a claim against the USA and UK to the ICJ on the basis of Montreal Convention 1971 (Art.14(1)), which was in 1992 refused [53] .
In February 1994 happened Banja Luka Incident, where four Serbian air fighters were shot down after violating the no fly zone over Bosnia and Herzegovina. US fighters under the NATO command were acting in accordance with the Security Council Resolutions 781,786 and 816. The USA at first tried to alert Serbs that they are violating no fly zone, when no response was obtained, first fighter was shot down, but the rest of them remained in their positions. Afterwards another three were shot down. It is presumed that the last two Serbian fighters landed on Banja Luka′s airport [54] . Well known became Mrkonjic Grad Incident in June 1995, where two USAF jets were sent to recon mission. They were targeted by Serbian army, which showed also radars of their aircrafts, however, could not observe the missiles. Both jets were shot down, but one pilot ejected himself. As Serbian army went after him he had to hide and wait until US forces came to rescue him [55] . It is possible to see here another violation of Laws of War, as Serbs were not allowed to fire at pilot who ejected himself from the shot aircraft.#p#分页标题#e#
After the Gulf War in April 1994 US air fighters shot down their own helicopters, which they believed were Iraqi ones, in attempt to attack them. However, as was found out, they were from the USA, and on board were 26 passengers including civilians of various nationalities. Investigation showed that various factors were involved, mainly those of technology failures [56] . Incident was closed, however many criticism was brought for insufficient punishment in the eyes of public.
Conclusion
Various other aerial incidents happened over the history; however most of them show lack of respect to law and rules set out to protect not only passengers and civilians, but also peaceful relationships among the States. Each of these incidents raised interest of public in bigger or smaller scope; they were discussed on international level, and they also influenced law on the subject. However, it is possible to observe that not a lot changed so far. States tend to use the UN Charter to cover up their military operations in order to claim self-defence, even when no threat or use of force is attempted. It could be sometimes attributed to the technology factor, but pilot as a human being should bring a logic into such decision.
To conclude, there needs to be answered question from the title of this work. Criticism raised over the years to the issue of shoot downs seems to begin being efficient. In the past there were only small victories in few cases, where thanks to diplomacy State if did not admit responsibility, at least was willing to compensate. It is necessary to mention that various States were in breach of provisions relating to use of force and aggression, used illegally right of self-defence in situations where it was inapplicable and did not comply with the Laws of War. As mentioned before these provisions are not only certain legal documents, binding upon ratification, they are also part of customary international law and ′Jus Cogens′.
It is of fundamental importance that nowadays it is possible to observe a complete change in relation to airspace and use of force. The military intervention going on today in Libya is a proof that Coalition, before starting a military operation asked the Security Council for authorization. Only after that military operation started to enforce no fly zone over Libya as granted by the Resolution 1973.
Therefore, it can be concluded that despite breaches in past, substantial criticism has brought a change that was desperately needed. For the future there is a hope, that law will be followed as today in case of Libya and Resolution 1973.
使用武力是国际法中最重要的和最有争议的地方之一。这尤其适用于现今社会的国家间冲突，需要严明的规章制度以防止不必要的暴行。由于多次确认一国拥有专属主权的领土，在那里可以行使领空的管辖权，但违反这些都可能点燃武力，以保护自己的领土。
这项工作使用武力空域，其中主要的影响是过去发生的话题。在第一章中，简述武力的使用，从它的历史，直到目前的考试，简析覆盖区域各种法律文书的目的，这部分后面的小节将讨论侵略的实际含义。
其次将考虑自卫权，包括它的定义，适用范围和所产生的任何问题。战争法是这项工作的最后理论部分。在第三章中介绍了一些适用于无辜者保护的主要规则，在战争中要遵守国家的规则。
The Most Important And Problematic Areas Of International Law International Law Essay
Use of force is one of the most important and problematic areas of international law. That applies especially nowadays when conflicts among the States need regulations to prevent unwanted atrocities. As was many times confirmed a State has exclusive sovereignty over the airspace of its territory, where it can exercise jurisdiction, but violation of which may ignite the power of force in order to protect its own territory.
This work analyses the topic of use of force in airspace, where the main impact is on shoot downs which happened in the past. In the first chapter an examination of the use of force from its history until present will be conducted. For that purposes are used various legal instruments covering the area. This part is followed by subchapter discussing the meaning of aggression and what it actually is.
Secondly the right of self-defence will be considered, its definition, applicability and any problems arising out of it. Laws of War are the last theoretical part of this work. In this third chapter are described some of the main rules which are to be observed when State is in war, as well as rules applicable for the protection of innocent ones. The fourth chapter brings examples of shoot downs where it is possible to observe the pointlessness of use of force, but sometimes there are examples showing the opposite. This work is concluded by answering the question from the title whether criticism can change practice in this area of law.
i. Use of Force
The need to establish the rules in relation to use of force was raised due to many incidents in history. It was in 1928 when first legal instrument was adopted – the General Treaty for the Renunciation of War, known also as Kellogg-Briand Pact. This treaty established that all the conflicts which might arise among the states would be solved peacefully. The importance of the treaty was not only because it was ratified by 63 states, but also because it was used by tribunals in Nuremberg and Tokyo [1] after Second World War. [2] Four main points established basic principles of the use of force. Firstly, every Party assures that war will not be considered as solution, and then any clashes on the international level will be sorted out peacefully. There were two reservations by which self-defence is acceptable, as well as obligations derived from the Covenant of the League of Nations [3] . This treaty is still enforceable, but today there exist also newer legally binding document, crucial in relation to use of force – the United Nations Charter. Charter is enforceable since 24th October 1945 and it is possible to see that those four elements from the Pact, later created the core of the Charter of United Nations. In the Art.2 are set out the most important principles. Art.2(3) puts an obligation on the Member States that all disputes have to be resolved in the way that peace and security of the world will not be affected in any way. [4] Art.2(4) states:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations. [5] ”
As Grief observed, this provision is binding for airspace of both – national territory and high seas. He also pointed out that Art.2(4) is recognisable principle of customary international law, not only under the UN Charter [6] , as was confirmed by the ICJ in Nicaragua case [7] . According to Grief it is important to establish if the Art.2(4) is enforceable towards the aircraft of another State. The discussion was raised on the basis that “territorial integrity and political independence” have to be maintained, and Bowett states that it has the effect of prohibition. He analysed it in relation to intention – when there is specific intention, it would mean that territory or independence is in danger, whereas, without specific intention is breached Art.2(4) generally, because use of force is prohibited when not in accordance with the Purposes of the United Nations. However, Brownlie disagreed, because according to him, prohibition of the use force is more strict in Art.2(3), where it applies to any dispute to be solved in peaceful way. Art.2(4) relates mainly to State and its territory. [8]
Bowett approach seems to be stricter, as it implies responsibility in both ways. Therefore, it can be said that whenever airspace of the State′s territory is invaded without any authorisation, it can be classified as violation of the State′s integrity. The question is how it would be considered in the airspace of high seas. Even though an aircraft is registered in a particular State, it is hardly possible that use of force upon aircraft in airspace of the high seas would constitute the attack towards the integrity of that State. What could be invoked is that it could mean an infringement of the State′s political independence. As Higgins suggests, it can happen in situation when threat of use of force is applied on the aircraft, under the conditions of gaining power over the government of the State of registration (also when Head of State or Government is in the aircraft). [9]
It can be derived from the above mentioned that use of force is unacceptable and forbidden by Art.2(3) as incompatible with the Purposes of the United Nations, by Art.2(4) where any threat or use of force is forbidden towards another State, and by customary international law generally. Therefore, use of force in relation to aircraft in national airspace or airspace of high seas is prohibited too.
There arises also a discussion whether there is any difference between state and civil aircraft in relation to use of force. As was decided by the ICAO Assembly, after the shoot down of Korean Airliner in 1983 [10] that use of force is prohibited upon a civil aircraft by customary international law. Cheng here thinks that neither Art.2(4) nor Art.51 are setting the principles under which State is bound to take care of its own citizens or non-citizens, and those are categories of people who would be on board of civil aircraft [11] . Those articles, he suggests, are limited to relations between State and the UN or other State. [12]
However, using the wording from the Declaration on Principles of International Law, where Art.2(4) is explained, it reads:
“Every State has duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.” [13]
Therefore, it could be assumed that by using explanation from the above quoted Declaration, the use of force upon a civil aircraft with another State′s involvement is prohibited under the Art.2(4). The same would apply if the civil aircraft would be over the high seas, where applies exclusive jurisdiction of the State where that aircraft is registered. Grief adds that bounds with the State securing the diplomatic protection in international law are even more apparent. [14]
After the shoot down of Korean Airliner, the UN Security Council drew up a resolution [15] in which several States made a reference to Art.2(4) that use of force is strictly prohibited upon any aircraft in the high seas; and therefore expressed their rejection of the shoot down itself. Unfortunately, the USSR used their right of veto when passing this resolution [16] .
Moreover, there applies also Chicago Convention [17] which strictly prohibits use of armed force upon the civil aircraft in its Art.3. This article has been amended after the above mentioned shoot down of Korean Airliner and says that passengers in the civil aircraft must not be put into danger of life by usage of weapons of another State. The use of force shall not be in conflict with the aims of the Convention, and supports the right of self-defence as defined in Art.51 of the UN Charter. It can be observed that provision lacks threat of use of force, and recalls only to usage of weaponry, which is prohibited. Cheng criticised that by using verb “refrain” the provision implies that security and endangerment of passengers’ lives is about to be only avoided”. Prohibition would be achieved according to Cheng when using verb “abstain”. Although it can be argued at this point that problem of Cheng is solved in the preamble where use of weapons upon civil aircraft is prohibited generally. This was confirmed by the ICAO Council when discussing the shoot down of Iranian Airliner [18] by the U.S.A. in 1988. [19]
Therefore, threat or use of force or weapons is strictly prohibited under customary international law, the UN Charter and Chicago Convention and applies to any type of aircraft irrespectively whether over the national territory or the high seas.
ii. Aggression
In order to determine what use of force means, there was necessary to establish the definition of the term “aggression”. It was done in 1974 as the Resolution 3314 on the Definition of Aggression.#p#分页标题#e#
Art.1 defines aggression as:
“...use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other matter inconsistent with the Charter of the United Nations...” [20]
It is possible to observe that above quoted definition again does not contain term “threat”, but includes “sovereignty”. However, this absence of the threat is rectified later in the Art.4, where are means of force not falling under the classification of armed ones discussed.
As it follows in the Art.2, prima facie evidence is established when one State uses the force upon other State, having no permission of the Security Council. [21] In the Art.3 are described means of armed force which would be considered as use of force by the Security Council. It is important to add that this list is not final, and it may be reconsidered by Security Council on the basis of Art.4. [22] For the purposes of this work is significant Art.3(d), which among the acts of aggression includes “...attacks by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State.” [23] Grief implies that this provision includes any type of attack (air-to-air, surface-to-air) as well as there is apparent no description of type of aircraft. Therefore it could be assumed that it is meant to apply to military, but also on civil ones. Confusion might arise when analysing “forces” and “fleets”. It could create an impression that attack needs to be performed in broader scope (not only on one aircraft), however looking back to the UN Charter and its definition of the use force, it is possible to conclude that use of force in airspace would constitute an aggression, either over the territory or high seas. [24]
Use of force and aggression are interconnected through many international legally binding documents, and therefore cannot be seen only from interpretation of one of them. Analyses show that in order to establish what constitute aggression; use of force is essential part of it. More importantly, above written confirms that threat or use of force in airspace are forbidden.
Right of Self-Defence
Right of self-defence is not a new concept established by the UN Charter. It is derived from customary international law where it belongs since Caroline case [25] .
In this dispute the U.S. Secretary of State Webster argued that:
“...there exists a necessity of self-defence instant, overwhelming; leaving no choice of means and no moment for deliberation...means used must then be proportionate to the gravity of the threat or danger... [26] ”
The concept was acknowledged by his British partners and it could be said that since then it is considered as customary international law. That approach was confirmed by the ICJ in the Nicaragua case [27] . The UN Charter also approved the concept, and defined two exceptions from the use of force. One of them is the right to self-defence, which is defined in the Art.51 of the UN Charter. It states:#p#分页标题#e#
“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 the measures necessary to maintain international peace and security. Measures taken 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. [28] ”
As well as Art.2(4) also Art.51 brought dramatic discussion among the academics. Brownlie argues that wording is limited to an occasion when actual attack happens and has no consideration on facts that might lead to potential attack. On the other side Bowett is saying that any circumstances leading to attack would be considered as threat, and therefore contrary to Art.2(4), so request for assistance of Security Council would be applicable. It is important to note that Art.51 was derived from customary international law, and so is stressed even in its first sentence – self-defence is ′inherent′ right. It can be assumed that if State is using power against other State as a way of self-defence, which is proportionate and reasonable, it could be justified under international law as confirmed in Nicaragua case.
Armed attack in relation to aircraft is somewhat more complicated. It brings many border situations due to improvement of technology. It has been broadly discussed what really constitutes an armed attack in airspace. One argues that it is only after firing the missile, others oppose that is when missile is ′locked′ on the position of aircraft. There are situations such as with thermo navigating missiles, targeting or other circumstances which could lead to misleading the radar activity, though it is only so called ′recon′ mission. Which situation really brings the right to self-defence is still unclear, but there exists general practice that right arises when the missile has been fired. This is to eliminate situations where too early respond could lead to conflict between the States. Brownlie at this point suggests that after missile has been fired over the high seas, it is possible to protect the aircraft by shooting the missile itself. [29] However, there again arises conflicting situation, as not only technology, but also human factor can be sometimes misleading. That was observed in shoot down of Libyan Aircraft [30] in 1989.
Some critics can argue when attack happens over the high seas the right of self-defence is also applicable, but it is not the same as when aircraft is over the State′s territory. However, except the above mentioned customary international law, in some circumstances it is possible to apply North Atlantic Treaty [31] Art.5 that contains a provision according to which an armed attack to one Party to NATO shall mean an attack to all its members. That provision is effective anywhere in the North Atlantic area; and can be applied also to an armed attack of the aircraft. Also applicable here is decision of the ICJ in Corfu Channel case [32] , where was confirmed that right to self-defence is exercisable also in the territory of high seas while being attacked during passing it inoffensively. That principle can be taken into airspace of high seas having the same circumstances.#p#分页标题#e#
It is clearly established that bounds between state and military aircraft are very narrow. Therefore, exercise of the right to self-defence of the State is obvious. In case of civil aircraft some can argue that it is not applicable. What needs to be stated is civil aircraft has its ′home′ State, which is the State of registration, providing a diplomatic protection to that airplane. ICJ held in Nottebohm case [33] , that diplomatic protection of the State is a means of defence. This analysis is supported also by North Atlantic Treaty Art.6, which does not specify the type of aircraft, only refers to it generally - ′the aircraft′, as well as the Definition of Aggression recognizing ′air fleets′. [34]
Right of self-defence appears to be very complex. Before exercising this right there has to be considered various issues – if the missile was really fired, what other implications might arise by retaliation, if it is a situation of necessity, political situation or possibility of escape or destruction fired missile. It is very important to realize that to retaliate legally in the international law means to act out of necessity and to be proportionate.
Laws of War
Although today the war known from history is not applicable anymore, it might still arise. Some argue that war itself is illegal out of customary international law and the UN Charter, but how would then be called an armed conflict among the States, carrying the signs of war despite having certain rules, with the consent of the Security Council or in self-defence? It would be probably war, where certain rules in relation to airspace also apply. In the airspace over the high seas is normally exercised freedom of aviation. This right can be limited in order to protect aircraft and secure the airways. There is most of the time a possibility of other airways to be used. Neutral aircraft can be also subject to control and other measures necessary to carry out successfully combat missions. [35]
Laws of War or ′Jus in Bello′ were adopted in 1899 [36] and 1907 [37] as Hague Conventions. At this time no air force existed therefore those rules do not particularly address air war, but modern war rules in general. They have to be differentiated from ′Jus ad bellum′, which is the set of rules when State is going into war whereas previous directs State in the war condition. [38]
It is strictly prohibited to violate the airspace of neutral State for the purposes of any military operations. For aerial missions are determined areas such as airspace of high seas. Use of weapons is not upon the State itself. There has to be taken into consideration the outcome of usage such weapon. The rule is that weapon should not cause massive losses of lives or unbearable suffering of wounded. The only legitimate target is a military personnel who is clearly identifiable by his uniform and in case of aircraft having marks showing State of registration. One of the most important rule is that while exercising aerial military mission there has to be taken all possible preventative measures to protect civilians and their properties, as civilians are not a legitimate military target. [39]#p#分页标题#e#
Despite the fact that the rules above have not been implemented they are considered as rules of customary international law, and they were put together in 1923 as document called “Hague Rules of Air Warfare”. Specifically, Art.22 states that it is forbidden to bomb civilians from an air as a purpose of mission. That principle is strengthen in Art.24(1) that other than military object is strictly forbidden as an aim of aerial bombing (it is possible to see here how legal instruments and customary international law intersect each other – Chicago Convention prohibits any armed attack upon civil aircraft, in war civil aircraft is not a legitimate target) [40] . According to Art.57(2)(a)(iii) Additional Protocol I [41] leaders of armed forces must:
“...refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilians objects, or a combination of thereof, which would be excessive in relation to concrete and direct and direct military advantage anticipated. [42] ”
What type of weapons is allowed is specified in the Art.18 [43] of the Air Warfare document, and the main purpose for determining such weapons is that nobody should suffer extensively and unnecessarily. There is also determined what to do with survivors of shot down aircraft. According to Art.20 when aircraft is shot down and crew ejected themselves they become an illegitimate target when descending. However, that does not apply for paramilitary persons descending for purpose of committing other atrocities on the ground. Therefore, it has to be stressed out that when attacking them; they have to recognize according to the uniforms and register signs. [44]
Case law on the Use of Force related to Shoot downs
Although the law described above seems generally clear, it appears from the case law that not always is applied correctly, sometimes is even misused for military or political achievements. In the 1950s it was especially conflict between the USA and the USSR, where USSR shot down on several occasions US air fighters. In the 1952 was US aircraft shot down, because USSR claimed it had entered its sovereign territory [45] . Few years later, in 1954, while US aircraft positioned over the north part of Hokkaido island, was again shot down by Soviet fighters [46] . The reason was flying too close to the Soviet airspace, following an accusation of espionage. However, at this time USA decided to apply to the ICJ, on the basis that there were committed intentional attacks towards the USA, having no particular reasons. USSR solved the situation according itself, by rejecting jurisdiction of the ICJ persisting that US fighters violated the airspace of the USSR. A little bit diplomatic approach was used in 1955 where Soviets attacked US aircraft in Bering Straits [47] . Despite a usual defence of violation of Soviet airspace, USSR offered compensation. It was based on statement that the mistake might occur on both sides. In 1960 was again US aircraft shot down by Soviets in Barents Sea [48] . Although Security Council attempted to pass resolution to settle nearly 10 years going dispute between the USA and USSR, Soviets used their right of veto [49] . It is noteworthy, that none of the shoot downs was performed in self-defence, state of war or with the authorization of Security Council.
Civil airliner of Libya was shot down by Israeli air fighters in 1973. Libyan airplane got unfortunately due to weather over Sinai Peninsula, which was controlled by Israel. After being approached by Israeli jets and asked to follow the instructions, pilot refused them so Israeli jets shot it down. It was declared by Israel that it violated their airspace and because of being in war condition with Egypt, where airliner flew, Israeli were suspicious when pilot did not want to comply with instructions. Incident raised a wave of criticism towards Israel, which did not admit responsibility, but offered compensation for the victims [50] .
In 1981 American fighters shot down two Libyan ones in the Gulf of Sidra far from Libyan Coast. Libya claimed that they violated sovereignty that Libya has over the gulf. American fighter was acting in self-defence, as being attacked over the high seas. Quite comparable incident happened in 1986 [51] .
During the Iraq-Iran war was shot down Iranian civil airliner in 1988. It was shot from US ship in Persian Gulf, which defended itself saying that they acted in self-defence as they believed it is Iranian fighter. ICAO recalled to the Chicago Convention and stressed in its report that safety should be primary objective, however there would arise an issue of the legitimacy of the American attack [52] . Right to claim self-defence is applicable only in situations where threat or use of force could be apprehended. In this situation it is disputable whether civil airliner causes any of the two elements, even if it would be a fighter, USA did not prove the grounds on which they claimed self-defence, other than misbelieve.
Aerial Incident at Lockerbie happened in 1988 as a result of bomb explosion on the board of civil aircraft over the Scottish town Lockerbie. All of 260 passengers died as a result. During the investigation was found that two Libyans are responsible, and therefore USA, UK and France claimed from Libya to extradite them. Libya opposed that it is unconstitutional to extradite its own national. However, three permanent member of the Security Council enforced Resolution 731. By the time Libya brought a claim against the USA and UK to the ICJ on the basis of Montreal Convention 1971 (Art.14(1)), which was in 1992 refused [53] .
In February 1994 happened Banja Luka Incident, where four Serbian air fighters were shot down after violating the no fly zone over Bosnia and Herzegovina. US fighters under the NATO command were acting in accordance with the Security Council Resolutions 781,786 and 816. The USA at first tried to alert Serbs that they are violating no fly zone, when no response was obtained, first fighter was shot down, but the rest of them remained in their positions. Afterwards another three were shot down. It is presumed that the last two Serbian fighters landed on Banja Luka′s airport [54] . Well known became Mrkonjic Grad Incident in June 1995, where two USAF jets were sent to recon mission. They were targeted by Serbian army, which showed also radars of their aircrafts, however, could not observe the missiles. Both jets were shot down, but one pilot ejected himself. As Serbian army went after him he had to hide and wait until US forces came to rescue him [55] . It is possible to see here another violation of Laws of War, as Serbs were not allowed to fire at pilot who ejected himself from the shot aircraft.#p#分页标题#e#
After the Gulf War in April 1994 US air fighters shot down their own helicopters, which they believed were Iraqi ones, in attempt to attack them. However, as was found out, they were from the USA, and on board were 26 passengers including civilians of various nationalities. Investigation showed that various factors were involved, mainly those of technology failures [56] . Incident was closed, however many criticism was brought for insufficient punishment in the eyes of public.
Conclusion
Various other aerial incidents happened over the history; however most of them show lack of respect to law and rules set out to protect not only passengers and civilians, but also peaceful relationships among the States. Each of these incidents raised interest of public in bigger or smaller scope; they were discussed on international level, and they also influenced law on the subject. However, it is possible to observe that not a lot changed so far. States tend to use the UN Charter to cover up their military operations in order to claim self-defence, even when no threat or use of force is attempted. It could be sometimes attributed to the technology factor, but pilot as a human being should bring a logic into such decision.
To conclude, there needs to be answered question from the title of this work. Criticism raised over the years to the issue of shoot downs seems to begin being efficient. In the past there were only small victories in few cases, where thanks to diplomacy State if did not admit responsibility, at least was willing to compensate. It is necessary to mention that various States were in breach of provisions relating to use of force and aggression, used illegally right of self-defence in situations where it was inapplicable and did not comply with the Laws of War. As mentioned before these provisions are not only certain legal documents, binding upon ratification, they are also part of customary international law and ′Jus Cogens′.
It is of fundamental importance that nowadays it is possible to observe a complete change in relation to airspace and use of force. The military intervention going on today in Libya is a proof that Coalition, before starting a military operation asked the Security Council for authorization. Only after that military operation started to enforce no fly zone over Libya as granted by the Resolution 1973.
Therefore, it can be concluded that despite breaches in past, substantial criticism has brought a change that was desperately needed. For the future there is a hope, that law will be followed as today in case of Libya and Resolution 1973.
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