„Shooting down aircraft by states in the light of sovereignty of airspace”

1. „Shooting down aircraft by states in the light of sovereignty of airspace”

2. Outer Space = out of states' jurisdiction Borderline – varies (30-160 km above sea level) Airspace = state's jurisdiction (if above state's territory)

3. Article 1Sovereignty The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.

4. Article 1 Usage of coercive measures Prohibition of flying Delegation of rights Establishment of jurisdiction over foreign aircraft Introduction of conditions, limits and control

5. Korean Air 007 • Accident of September 1st, 1983 • Flight bound JFK-GMP • Flew over Soviet territory (Kamchatka) upon Pacific Ocean crossing • Soviet airspace was under prohibition of air passage • Navigation fault by pilots caused the unintended passage • Incorrectly identified as a spy aircraft by Soviets • Shot down by Soviet interceptors. 269 people died.

6. Libyan Arab Airlines 114 • Accident of February 21, 1973 • Flight bound TIP-CAI • Expected severe sandstorm and thus needed to rely on its instrumental navigation system; could not find its air traffic beacon • Did not report the problems to air traffic control and was permitted to descend • Strong tailwinds caused it to fly over Suez Canal • Israel (being at war with Egypt) was suspicious about it; plus it flew close to Dimona – a place where Israel had its nuclear weapon factory • A communication attempt was made, but with no clear response from 114 • Finally, it was shot down by Israeli fighters when turning west to its destination

7. Consequences? • Aftermath of LN 114a) ICAO condemns the act and affirms that such acts constitutes serious danger for security of international civil aviation b) Israel's action is called a clear breach of rules arising from Chicago Convention • Aftermath of KE 007 a) ICAO issued a resolution condemning the shot down of KE 007 b) ICAO undertook the revision of problem of proper communication between civil and military aircraft • Addition of Article 3 bis to Chicago Convention [...] every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. • Aforementioned provisions repeated in Article 3.8.1. of Annex II – Rules of the Air to Chicago Convention

8. Does it work? • In July 1988 Iran Air 665 was shot down by USS Vincennes when crossing the Straight of Hormuz during the Gulf War on its way from Bandar Abbas to Dubai • In June 1996 two civil planes were shot down by Cuban Air Force when flying over INTERNATIONAL WATERS • Nowadays ongoing discussion concerning regime of airspace over states' territories ===> ICAO Working Paper from WORLDWIDE AIR TRANSPORT CONFERENCE SIXTH MEETING hold in Montréal, 18 to 22 March 2013 – permission to transfer rights of performing air navigation to third parties (e.g. ICAO itself ) • In 2014 ICAO stated that all questions concerning alerts and decisions about closure of airspace is are a matter of states themselves, and ICAO can only act in an extraordinary situation when a state is unable to control airspace above its territory or diplomatic relations require its actions.

9. CLOSING QUESTION Should the basic principle of international air law be that strict, even for the price of security?