Use of Weapons Against Civil Aircraft: Case Study of IR655 in the Ught of International Law
by
Mansour Jabbari Gharabagh
A Thesis Submitted to the Faculty of Grad~~te Studies and Research in Partial Fulfilment of the Requirements for the Degree of Master of Laws
Institute of Air and Space Law McGIII University Montreal, auebec Canada
November, 1992
(c) Mansour Jabbarl Gharabagh, 1992 • Shorhn.d V.r!uon of th, Th.llS
l'. li l Il u r ,- n 1h l' Der M t rr. P Il t : 1 1. " t Jt li f '" (l f (~l r il n d Spa (Ii' 1 ê\ vi /IPqfPE' ~oltth: 1 L • M. 1 l mp cd (, r d d Il a il 0 n : ,1 \1 Ti t? ! '1 9 ,; r h (' t l t 1 p [J f t h P. 1 h ~ c: l " : Un of Wuponl A91inat Civil Aircrlftl Can Study of IRt.55 ln the Llght of Inhrnabonal Law fi Il (1 rt I? ri I? cl ver S l (1 Tl {) t t Il ft t h p~.J ~': L.gal Aspects of the IR655 tragedy ABSTRACT Iran Air Fhght 655 was termlnated by two missile attack on July 3, 1988 The aim of this study is ta analyze the aeranautlcal Incident of July 3, 1988 (IR655) fram the pOint of view of general International law and air law Speclflc attention is glven ta the consideration of the case by the Councii of ICAO, the legal co ordination of civil/mlhtary fllght operation and the legal status of NOT AM The study also comments on the concept of self-defense ln Internatlonallaw and responsibility of state. The conclUSion outllnes the scope of the decislon of the Councii and compares it with the Council's previous decisions. ii Résumé Le vol Iran Air 655 s'acheva à la suite d'une attaque par deux missiles le 3 Juillet 1988. Le but de cette étude est d'analyser cet incident d'un point de vue de droit internatIonal et de droIt aénen. Une attentIon particulière est portée à l'opinion du Conseil de l'OACI sur cette affaire, la co-ordInation légale des opérations en vol militaires et civils ainsi que le statut Jundique du NOT AM . L'étude commente également le concept d'autodéfense en droit international ainsi que la responsabilité des Etats. La conclusIon souligne la portée de la décision du Conseil et la compare avec les déciSIon précédentes du Conseil. III ACKNOWLEDGEMENr 1wish ta express my sincere gratitude ta Dr. Michael Milde, Director of the Instltute ef Air and Space Law, and Thesis superviser, for hls encouragement and valuable academic criticisms, whose patient supervision throughout my year at McGiII University has been invaluable. 1 thank Ms. Ginette Van Leynseele, Co-ordinator of the Graduate studles, for her help during my studies at McGiII University. 1would like ta express my gratitude to Professor David Stevene for supporting my application ta the law scheel. 1 am grateful also te the staff of the ICAO Library in this regard. I!':lble of Contents Page IV Table of Contents Abstract Résumé ii Acknowledgment iil Table of Contents iv Introduction 1 Chapter 1: The incident (Facts) 1.1) Background 4 1 2) The Challenges made to IR655 7 1 3) Fnend or Foe 8 Chapter 2: Background of the Incident 2.1) Vislt and Search of Vessels by Belligerents 13 2.2) Were the United States' Operations Peace-Keeping? 17 2.3) The United States as a Neutral States 18 2.4) Position of the USS Vincennes and the Question of Soverelgnty 20 2.5) Freedom of the High Seas 21 2.6) Mllitary use of the territorial sea by foreign vesse~ 21 Chapter 3: The Chicago Convention and ICAO Position 3.1) International Civil Aviation Organization 24 3.2) Accident Investigation 26 3.3) ICAO Council can consider any matter 31 Table of Contents Page v 3.4) The Extraordinary Session of the Council 3.4.1) Convocation and Opinions Expressed on the IR655 Incident 32 3.4.2) Decision of the ICAO Council ln ItS Extraordlnary Session 34 3.4.3) Discussion of the Draft Resolution 36 3.5) Civil/military Co-ordination 3.5.1) Annex 11 38 3.5.2) Civil/Military Co-ordination in the Gu~Aœa 40 3.5.3) Routing Arrangements and Civil/Mihtary Co-ordination in the Persian Gulf Area 42 3.6) 125th Session of the ICAO Councii 44 3.7) 120th Session of the Air Navigation Commission 50 3.8) 126th Session of the ICAO Councii 54 3.9) Sorne Legal Aspects of The ICAO Councll DecIsions 57 Chapter 4: Re/e"ialiCf! of the NOTAMs in the USS Vincennes' Case 4.1) NOTAM issued by the FAA 61 4.2) Pre-Conditions and Recommended Practices Concerning NOTAM 4.2.1) Annex 15 62 4.2.2) The Third Middle East Regional Air Navigation Recommendation 65 4.2.3) Meeting in the European Office of ICAO 66 4.3) Violation of Standard and Recommended Practices 67 Tabl~~fCo=n~t=e~nt~s ______. ______~Pa~g~e~~vl Chapter 5: Self-Defense 5 1) Use of Force as Self-Defence in International Law 72 5.2) The Temparai Elements in Self -Defence 75 5.3) A Prlor Aenal Incident 76 5.4) "Reasonableness" ln self-Defense 78 5.5) A vahd clalm ln the Incident 80 5 6) A Third Party is Entltled to Evaluate the Self-Defence 88 5.7) Mlstaken Self-Defence 89 Chapter 6: State Responsibility 6 1) The Concept of Responsiblhty 91 6.2) The Proper Role of Fault (cu/pa) and Intention ~~ ~ 6.3) Responslbility of the State for Acts of Armed Forces 98 Chapter 7: Iranian and U.S. Governments Position 7.1) Iranlan Government Position and the Case Pending Before the ICJ 101 7.2) U.S. Government Position 103 Conclusion 108 Se/ected Bibliography 112 Ust of Abbreviation 120 Table of Cases 123 Table of Contents ______Pa.g~ __ VII Appendices Appendlx A: Map A-1 Appendix 8' Fatal Accident Rates for Passengers on World Scheduled Services 1972-1991 8-1 Appendix C' Air Navigation Commission -Safety Measures relatlng to actlvltles Potentiallv Hazardous to CIvil AH craft C-1 -Review of Safety Recommendatlons Contalned in the ICAO Investigation Report C-13 Appendlx D: Iranlan ICJ Application 0-1 Legal Aspects of the IR655 Tragedy Page 1 ln the name of God Introduction There are severallegal problems with which the internationallaw of the air has to deal today. Recently, with the &dvancement of technology, civil aviation, which represents a necessary means of communication between nations and provides an essentiallink for the economic life of society, is no longer felt to have a high degree of danger or risk. However, with congested traffic in the aviation field ail over the world, threat to air travel, (by man-made dangers such as the use of force and other forms of unlawful interference with civil aviation) has increased. ICAO has been the main instrument in the development of aviation safety programmes and of the implementation of new technology to reduce the number of accidents. ICAO seeks to prevent aets of unlawful interference with civil aviation on an internationallevel. As its primary responsibility and main objective, ICAO has taken ail necessary measures to develop safety in civil aviation by adopting international Standards and Recommended Practices embodied in the Annexes related to the matter. Effective and reliable safety measures have been proposed, in addition to those already contained in ICAO Annexes, to improve the civil f1ight operations internationally. The Chicago Convention nowhere addresses the use of force against a civil airplane, and sovereignty of any Stat() over its airspace (mentioned in Article 1 of the Chicago Convention) does not grant the right of the use of force against an Legal Aspects of the IR655 Tragedy Page 2 • intercepted aircraft. The Contractlng States of ICAO agreed to "have due regard for the safety of navigation of civil alrcraft"l wh en they Issue Instructions to thelr military aircraft. Annex 2 of the Convention states that "Interception of civil alrcraft should be avoided,,2 As a ru le, the state concerned has ta attempt to make contact with the intercepted aircraft. The ground station or the Interceptlng alrcraft then has to request the foreign airplane either to change Its course or to land ln Article 3 bis of the ConventIon which was adopted ln May 1984 as a declaratory statement of general internationallaw states in much stronger language that "the ContractinQ States recognize that every State must refrain trom resortlng to the use of weapons against civil aircraft ln flight and that, in case of Interception, the lives of persans on board and the safety of aircraft must not be endangered."3 On July 3, 1988 the USS Vincennes, a United States warshlp, shot down an Iran Air Airbus A300 (IR655) on a scheduled flight. The tlrst and second chapters of this study will discuss the tacts of the incident and its hlstoncal background. As weil, the law of neutrality will be discussed in the second chapter. The ICAO Council, in several meetings, considered the matter. Based on the Council's decision made in July and December 1988, the ICAO Air Navigation 1Conventlon Between the States Respectlng InternatIOnal CIVil AViation, Dec.7, 1944,61 Stat. 11 BO, T.I.A.S. nO.1591, 15 U.N.T S 295 (herelnafter Chicago Convention) at Art. 3(d) Both Iran and U.S. are parties to the Chicago Convention 21CAO International Standards, Rules of the Air, Annex 2 to the Convention on InternaflrJ[ lai Civil AViatIOn (9th ed. July 1990) (herelnafter Annex 2) Attachment A para. 2.1 3M.Milde; "Interception of Civil Alrcraft VS. Mlsuse of CIVil AViation", [Vol. XI 1986] Ann.Alr.& Sp.L at p. 125. Legal Aspects of the IR655 Tragedy Page 3 Commission examined the results of studies carried out by the Secretariat for the improvement of Standards and Recommended Practices. Therefore, Chapter 3 will trace the ICAO provisions related to the matter, the activities of the ICAO Council and the ANC and their decisions. Special attention willlJe given to the civil/military co-ordination in the Persian Gulf. In Chapter 4 of this study, the legal status of NOTAMs, which were issued by the United States FAA and restricted civil flights in the Persian Gulf, will be discussed. Chapter 5 focuses on self-defense, first explaining self-defense in international law, then discussing decisions taken in different cases which claimed to have involved mistaken use of armed forces. Chapter 6 defines the concept of state responsibility with special attention given to the responsibility of state for aets of the armed forces. Chapter 7 compares the United States' position in this incident with its position in previous incidents. Conclusions will be stated at the end of this study. Legal Aspects of the IR655 Tragedv Page 4 Chapter 1: The incident4 (The Facts) 1. 1)8ackground of the Incident On Saturday ,July 3,1988,an Iran Air A300 Airbus took off trom Bandar Abbas,5 the international civil-military airport, with 290 passengers and crew members on board. It departed from the airport terminai 20 minutes after the scheduled time because one of the passengers had a problem with his immigration papers. The aircraft climbed straight on course; Its climbing profile 6 was normal, however, after 7 minutes in the air, at 6.54 , while flying in the assigned corridor and over Iranian internai waters, it was shot down at an altitude of 13,500 feet by two surface-to-air missiles of the USS Vincennes, which was ln Iranian territorial waters? at a distance of eight nautical mlles.8 The explosion of 4 CAO Council referred ta the shootlng down of IR655 as an "Incident". It was used ln Ils ordinary' Ineaning and not according ta the deflnrtlon glven by Annex 13. 5't IS a civil/ mllitary airport in south-western part of Iran, close to the central part of the Gulf. 6Appendlx to C-WP/8708 Report of ICAO Fact-Flnding Investigation, N~vember 1988 al A-12 (hereinafter ICAO Investigation Report) at A-12. 7The position of the USS Vmcennes when launchlng the missile toward the alrcraft was 26 30 47 N, 056 00 57 E and the USS Montgomery was posllloned at 2631 N, 055 12 E. This area IS part of Iranian territorial waters; See ICAO Investigation Report at 22. See also NAwsweek July 131992 at p.9. See ABC News July 1 1992 Transcnpt# 1898 at p.6. See Appendlx A BU.S. Department of Defense investigation Report; Formai Investigation Into the Circumstances Surrounding the Downing of Iran Air Fhght 655 on July 3, 1988- App. E to the ICAO Report, at E-42 (000 Report 28 July 1988). Legal Aspects of the IR655 Tragedy Page 5 the two missiles destroyed the aircraft and the wreckage plunged into the sea and sank. The explosion took place in the vicinity of Qeshm Island.9 The wreckage of the aircraft has not been recovered but most of its parts which did rise to the surface were found south-west of Bandar Abbas airport in the waters of the GulflO. Those parts had been scorched by the explosion of the missiles. Ali 290 passengers and crew members lost their lives. Most of the passengers who tragically and innocently perished in the incident were Iranian. Nationals from six other countries also died; these persons came from India, Italy, Kuwait, Pakistan, the United Arab Emirates and Yugoslavia 11. According to the ICAO Investigation Team, the flight crew was certified and qualified for the scheduled international passenger flight. The aircraft was serviceable when dispatched from Bandar Abbas; it was also validly ce rtified , equipped and had been maintained in accord an ce with existing regulations and approved procedures. The aircraft weather radar had probably not been in operation during the early stage of the flight while the radio altimeters had certainly 12 functioned throughout the flight . Furthermore there had been no indication of problems in establishing communications between the aircraft and civil ATC 91CAO Investigation Report at p.1. 10lCAO Investigation Report at p.6. 11 Id. at p.2. 12Id. at p.23. Legal Aspects of the IR655 Tragedy Page 6 units. 13 Iran Air flight 65514 was a regularly scheduled passenger service from Bandar Abbas to Dubai. It flew in a ten-mile wide international airway. During the month preceding July 3, 1988, the flight was operated twice a week, on Tuesdays and Sundays, with the exception of Sunday June 19, 1988. In addition there were 28 other Iran Air flights between Bandar Abbas and Dubal (or Shaqah), seven flights between Kabul and Dubai and 23 flights between Kabul and Jeddah via 15 16 ATS route A59 . Flight schedules of civil aircraft had been available to the USS Vincennes. In fact, for the first time in July 1988. commercial airline flight information was communicated to the ships in the Persian Gulf area. This message showed that IR655 was scheduled ta depart from Bandar Abbas on Tuesday and Sunday of each week. 17 13Id. at p.S. 141R655 stands for Iran Air A300 Fhght nO.655. 15'A total of 12 commercial air routes cross the southern Perslan Gulf/Strart of Hormuz area alone'. At least one thousand seven hundred and seventy tlve commercial air fhghts passed through Oman Centre tor the week endlng July 3,1988. See DOO Report at E-16. 161CAO Investigation Report at p.12 . • 17/d. at p. 24 and DOO Report at E 17. Legal Aspects of the IR655 Tragedy Page 7 1.2)The Challenges Made to IR655 ln the seven minutes after IR655 took off, eleven challenges were breadcasted te it by United States' warships. Seven challenges were made by the USS Vincennes on the military air distress frequency 243 MHz. One challenge was made by the USS Sides and three others by the USS Vincennes on the international air distress frequency 121.5 MHz. 18 "American warships were not equlpped to monitor civil ATC frequencies for flight identification purposes."19 Since IR655 was a civil aircraft and the flight crew carried out normal VHF communications with ATC units concerned,20 it did not carry radio equipment capable of being tuned to 243 MHz (military air distress or MAD frequency). These transmission made by the USS Vincennes could not be considered as effective or relevant challenges to a civil aircraft. The Iran Air jetliner did net respond either by radio communication or by changing course to the four challenges made to it on frequency 121.5 MHz. This 181CAO Investigation Report at p. 15; On September 1988 Iran Air had advised its flight crews operatlng ln the Gulf area to monitor frequency 121.5 MHz at ail times.ld. at p.13 but according to Annex 10 to the Convention on Civil Aviation, Vol.1 part 11, 4.1.3.1.1, the frequencv 121.5 MHz shall be used only for genume emergency purpose. ICAO Councll in its 125th SeSSion, when revlewlng co-ordination procedure, stated that frequency 121.5 MHz should not be used in purposes other than those explicltly mentlOned ln ICAO provisions. (See;C-WP 8718 ICAO Councll 125th session 1.12.88 at p.6) IFALPAs Task Force, havlng studied the facts of this incident, recommended that mliitary unlts should not transmit frequency 121.5 MHz. (SeEI ANC Task No. RAC-B801 related to AN-WP 6289). 191CAO InvestigatIOn Report at p.23. 20Id at p.23. Legal Aspects of the IR655 Tragedy Page 8 means that the plane's crew either had not monitored frequency 121.5 MHz in the early stages of the fhght, or that it dld not realize IR655 was being challenged. 21 (Note that the crew had been instructed by Iran Air to monitor frequency 121.5 MHz at ail times while operating in tl1e area of the Perslan Gulf.)22 1.3) Friend or foe To shoot or not? What is the best course of actIon wh en there are equal chances that a suspicious plane will be friendly or hostile? One must remember there is a risk that the lives of innocent persons would be threatened if the alrcraft was friendly. After only seven minutes in flight, the Vincennes downed IR655. During that time lapse there were arguments between the Vincennes', the Montgomery's and the USS Sides' personnel on whether the unidentifled plane was commercial or an Iranian military aircraft. Some of USS S,des' personnel sald that they had recognized only IFF Mode 3 codes and no Mode 2 codes (Iran AIr flight 655 was not squawking Mode 2. but squawked a distinctive friend or foe IFF23 Mode 3 civilian transponder signal). 24 Two of them recalled that the unidentified aircraft was evaluated as a commercial flight at 6.51 a.m and was 21 Id. at p.24. 22Id. al p.23. 23'FF stands for Identification of Friend or Foe. 24000 Report 28 July 1988 at E.51. Legal Aspects of the IR655 Tragedy Page 9 reported as such ta the tactlcal action officer. The United States Department of Defense reported that at 6:53 '1here was growing excitement and shouting in the Combat Information Centre of the USS Sides about a commercial flight."25 At 6:47 the automatic detection and tracking operator of the USS Vincennes identifJed the southbound track from Bandar Abbas airport as "unknown-assumed enemy"26 At the same time. the USS Vincennes' international air distress operator as weil as its tactical information and anti-air warfare co-ordination units 27 belleved they heard a report that the plane might be an Iranian F_14 . At 6.48 a.m. the USS Vincennes' Identification supervisor "recalled specifically looking at the commercial air schedule available at his console and seeing TN4131 (IR655) ,,28 on the screen. Two minutes later the USS Vincennes' combat information centre personnel stated they tao heard the F-14 report. At 6:51 a.m. the task force asked the Vincennes to warn the aircraft before firing. The Vincennes broadcasted its challenges on MAD and lAD frequencies. At that time, the USS Sides' personnel appraised the aircraft to be an Iranian commercial flight.29 At about the same moment an officer of the Vincennes' CIC also tentatively 251CAO InvestigatIOn Report at P.19. 26/d Appendlx A at A-3. 27/d 28/d at A-S. 2900D Report at E-36. Legal Aspects of the IR655 Tragedy Page 10 suggested to his commanding officer that it might be a commercial flight. 30 At 6:53 a.m. the USS Sides' commanding officer recalled evaluating TN4131 (IR655) as a non-threat to his ship based on the closest pOint of approach, hls knowledge of F-14 anti-surface warfare capability, the lack of electronic signature, and the lack of precedent noting altitude 1100 ft. He then focused his attention on the Iranian P3 to the west. 31 The USS Sides' commandlng offlcers concluded that the umdentified aircraft might be a commercial air hner.32 A minute later , whlle flight 655 was at a distance of eight nautical miles and at an altitude of 13,500 feet 33 34 and still climbing , it was struck by the Vincennes' missiles. ln spite of these differing opinions the Vincennes' commander believed that the aircraft represented a threat and took action in consequence. Assistant Secretary Williamson stated in his report lO ICAO: This tragedy occurred in the context of the continuing war between Iran and Iraq [ ... ] [while] the Vincennes already Involved in [an] exchange of fire with attacking surface vessels, the radar 30Id. at E.37. 31 1CAO Investigation Report at A9. 32000 Report at E39. 33ld. at E-41, 000 reported that the aircraft was not in the commercial air cOrridor. Il was maneuvering Into an attack position. Id. at p.43 It was reported that the alrcraft was rapldly decreaslng altitude and Increasing speed. (ICAO Investigation Report at p 19) Adm.W. Crowe, Chairman, JOint ch lets of Staff, stated that "the aircraft headed dlrectly for the Vmcennes [ .. ) at 450 knots· ABC News Nlghthne/Newsweek magazine recent special Investigation report was different trom them. Accordlng to that, "[aIt the tlme ft was shot down, the Iranlan alrcraft was actually turnlng slowly away trom the Vincennes. Its top speed, a relatlvely mlnor pOlm, was 385 knot". See ABC News transcnpt# 2898 at p.4. 34000 Report at E-42. Legal Aspects of the IR655 Tragedy page 11 on the Vmcennes suddenly showed a plane in the vicinity of the JOint mlhtary clvlhan alrfleld at Bandar Abbas [ ... ] ln the end, the captaln of a shlp must make a judgment on the basis of the Information avallable to hlm. It IS his solemn responsibility to protect the men under his commando That is what happened in the case of Iran Air 655.,,35 Involvement of sma" boats belonging to the Iranian Islamic Revolutionary Guard wlth U.S warshlps at the time of the incident had been reported, but this confrontation between Iranlan boats and United States naval forces has not been acknowledged by Iraman authontles.36 Usually ATS units in the Islamic Republic of Iran were warned through a "red alere procedure of military actlvities which presented a nsk to the safety of civihan aircraft, but this situation was not in effect on July 3, 1988. A TS units ln the area were not aware of any military activities at sea on that day.37 The lack of co-ordination between the naval forces in the area 35Department of State Bulletin - September 1988 at p.39 (herelnafter DOS Bulletin). 36See C-Mln. 126/1827689 ICAO Councll- 126th Session; Presentation of the observer of the Islamlc Repubhc of Iran before the 126th session of the Council at p.14; He sald rt was not clear from what source U.S. naval forces could have taken thls report. In the sa me meeting, the Representative of the U.S. pOlnted out that he had sorne photographs of the Iraman surface boats atlacklng hls country's shlps. Id. at pp.16-17 Lt. Col. Roger Charles (Ret.), an ABC News consultant, stated that 'we know, beyond any doubt, that there was a provocation, that the United States forces entlced, ln fact, entrapped the Iraman gunboats Into a Situation where we could then say that there has been a hostile action by them, the flnng on the hehcopter, and that then allowed, under thls klnd of speclous rule of loosened hot pursuit, us to take mihtary action. So what was presented on the surface slde, before the Airbus took off and got Involved, as an attack by Iranlan gunboat on US. shlps, IS, ln reahty, demonstrably provable now that we attacked the gunboats • See ABC News transcnpt supra note 33 at p.8. 37 See ICAO Investigation Report at p. 12; The observer of the Islamlc Repubhc of Iran before the ICAO Councii stated that statlng a 'red alert' status ln the area was not correct because there was no hostile act whlch put the system ln a position to cause a 'red alert' ln Bandar Abbas Alrport. See C-Mln. 126/18 27.6.89; See supra note 36 at p.16. Legal Aspects of the IR655 Tragedy Page 12 and the civil ATS units to identify civil flight operations caused numerous problems.38 The IR655 incident was the direct result of these problems. 38ICAO Investigation report at pp. 11 and 14. Legal Aspects of the IR655 Tragedy Page 13 Chapter 2: Background of the Incident 2.1 )Vlslt and S earch of Vessel:; by Belllgerent The USS Vincennes 39 had been deployed since 25 April 1988 in the Persian Gulf. 40 The U.S. naval forces had been requested le eperate in the 41 Persian Gulf dunng the Iran-Iraq War , allegedly to protect neutral shipping42. The question arises as to who could be considered as "neutrals" in this war. During the Iran-Iraq conflict, "nen-belligerent" Persian Gulf states (Arab ceuntries) offered massive financlal and ether support te Iraq. For that reasen, the vessels of these countries (or vessels carrying their flags) which passed through the 39"lran claimed that Kuwait had "Iost Ils neutral status by supporting Iraq financially" and also Il had "allow(ed] goods to be unloaded at Kuwaiti ports." ln February 1987, the Kuwaiti government asked the U.S. and USSR to protect its vessels. 'The U.S agreed to reflag eleven Kuwaitl tankers and to extend U.S. Naval protection to them." This reflagging ralsed the question "whether there was a "genulne hnk" between the flag state and the vessels, as reqUired by Article 5 of the 1958 Geneva Convention on the High Seas". Iran charged that the United States had abandoned its formai neutraltty ln its protection of Kuwaiti tankers. See O. L. Peace: "Major Maritime Events ln the Perslan Gulf Between 1984 and 1991; A Juridical Analysis"; [V.31: 545, 1991] Va.J. Int'!. L. at 552-554. 40 U.S. D0 D Report at E.19. 41 The Iran·lraq War began ln Sept.1980 when Iraq launched a massive invasion into Iran. Both sides declared war zones. The Iraqi authorrties warned that their forces would attack ail vessais passlng through the northeastern end of the Persian Gulf above 29 degrees, 30 minutes north latitude, Including Iran's principal 011 transportation. The Iranian war Zone Included the length of the Gulf, about forty miles from the Iranian coast. See supra note 39 at 547. 42000 Report at E.19. Legal Aspects of the IR655 Tragedy Page 14 Persian Gulf were attacked by Iranian armed forces. 43 Was Iran entltled to attack them as non-neutral targets or not?44 It is not the objective of thls Article to defend or to criticize the action of the belhgerent or the neutrals ln the 1981-1988 war in any way but rather to examine the circumstances whlch led to the downlng of IR655, and to study the legal issues Involved. During the Iran-Iraq war, naval operations were stnctly hmlted ln the Gulf area. The practice showed a trend toward hmiting naval operations to areas close 45 to the coast of belligerent states. Given ''the Right of Innocent Passage" , according to which even enemy merchant ships could enjoy the nght of Innocent passage through straits controlled by a belligerent state, It IS dlfficult to say whether this practice (e.g. the control imposed on naval actlvlty ln the area) is dictated by a legal convention or by practical considerations tirst, because the area was included in the territorial waters of the belligerent and second, because state practice does support the right to search and vislt neutral vessels If this is done by valid authorization.46 For instance, in the Arab-Israeli confliet '.)f 1967, 43'raqi armed forces also attacked neutral vessels, especlally Western 011 tankers to bring Western pressure on Iran ta agree ta a peaceful resolutlon. Iraq was attemptmg ta arouse Iran ta close strait of Hormuz to expedrte rts purpose; See J.H.McNelll, "Neutral ~Ights and Maritime Sanctions: The Effect of two Gulf wars"; [Vol.31 1991) Va.J.lnt'l.L. 631 at p.632 440f course there IS no doubt that a belhgerent must not attack neutral shlpplng on the hlgh seas or in other places of war area; See Y.Dlnsteln; "Neutralrty ln Sea Warfare", supra note 219, Encyclopedla of Public International Law, VolA at p 23. 45UN Convention on the Law of the Sea Article 86-881 Public InternatIonal AIr Law 1 Edlted by Ivan A. Vlasic 2nd Edition September 1989 for the use of students ln the IASL Art.17. 46't was not permltted on a" occasions. For example, a French fngate ln Oc1ober 1985 refused ta allow the Iranian navy to search the VI"e d'Anvers. See supra note 43 at p 635. Legal Aspects of the IR655 Tragedy Page15 Egypt exerclsed belligerent rights of visit and search over neutrals and Israeli shlpplng When an Egyptlan Styx-missile sunk the Eilat, an Israeli destroyer, Egypt stated that the Eilat was Inside its territorial waters. During the Vietnam war, South Vietnam proclaimed, on April 25, 1965, that any ship in its territorial waters could be vislted and searched and to be subject to arrest. During the 1970 Indo- Paklstani war, India boarded and searched about 115 neutral ships and captured three Paklstani merchant ships. In the Falklands-Malvinas conflict (1982), hostilities 47 were limited to an area of 200-miles around the contested archipelag0 . The visiting and searching of neutral vessels by belligerent has not been expressly prohlbited by the United Nations Security Council. There are two Security Council Resolutions, nO.540 passed in 1983 and no. 552 passed in 1984, which affirm the right of tree navigation. It is unclear whether it also refers to the doctrine of contraband. Even the United Kingdom seems to agree with the enforcement of the doctrine of contraband, as in January 1986 the British Government did not protest when the Iranian navy visited a British container ship in the Gulf of Oman.48 Similarly, the U.S. Government did not protest when, in the same year, armed Iranian sailors searched the American freighter President Taylor in the Gulf of Oman. This was the first time an American ship was stopped 47See N.Ronzittl "The Rlght of Self-Defense and the Law of Naval Warfare, [V.14 1988] Syr.J. Int'!. L.& corn. 571 at PP.571-575. 48/d at pp.576-577 ln the contrary, a French frigate prevented the French shlp from being searched by the Iranran Navy. Legal Aspects of the IR655 Tragedy Page 16 and searched by Iranian armed forces. 49 50 The stralt of Hormuz , where the USS Vmcennes was operating to protect merchant vessels, links the Persian Gulf with the Gulf of Oman. About two-thirds of se aborne trade in crude ail pass through it. It IS one of the most Important trade channels in the world. The approaches to the Stralt are covered by the exclusive s1 economic zone(EEZ) of Oman and Iran . Because of the acceptance of 49See D.L.Peace supra note 39 at pp.549-550; Peace, an International law attorney ln the office of the chief of Naval operation at the Pentagon states that ·As a belhgerent, Iran had tradltional nghts to ascertaln whether neutral shlpping was belng used to provlde contraband to Iraq.· Id 5OHormuz- an Island on the stralt of Hormuz between the Perslan Gulf and the Gulf 01 Oman, lies 5ml from the coast and 12 ml. S.E. of Bandar Abbas. Jagged hills charactenze the Island whlch stretches 4 1/2 ml. from east to west and 3 1/2 ml trom the north The population, whlch IS malnly Iraman wlth a few Balochl and Arab, fluctuates accordlng to the season. It may be as hlgh as 1000 males when the salt and oxide mines are belng worked, but deci eases 10 less than half ln the summer when many mlgrate to the malnland, particularly to Mmab, for the date harvest or to avold the excessive heat. lEncyclopedla Bntannlca Vol.11 Publlshed ln 1968) 5'There IS no answer ln the UN Convention on the Law of the Sea to the question of how establishment of the EEZ may affect peaceful mlhtary actlVltles by forelgn navles Article 58 of the convention states "in the exclusive economlc zone, ail stale [ .. ) enJoy 1 ) the freedom referred to ln Article 87.· Article 87 concerns "freedom of the hlgh seas· rt states that hlgh seas are open to ail states. Freedom of the hlgh seas compnses, mter alta, freedom of navigation and overfhght. These freedoms shall be exerclsed by ail states wlth due regard for the Interest of other states ln thelr exerclse of the freedom of the hlgh seas, and also wlth ciue regard for the nghts under the Convention wlth respect to actlvltles ln the area (See supra note 45 at Art 87) Art 87 does not clanfy whlch forelgn naval mllitary actlvltles are lawfulln the EEZ Controverslal actlvltles, inter alta, include mihtary manoeuvres. In case of establishment of the EEZ It leads to a situation ln whlch the mllltary use of the zone by forelgn navles will prevent the necesSlty of respectlng the role of the coastal state ln the exploration and explOItatIOn of resources ln the EEZ ·Accordlng to InternatIOnal law of the sea-warfare, a belhgerent state may capture or sink enemy shlps.· Iran has announced a reglme of Innocent passage throughout terrltonal sea, includlng the stralt of Hormuz It has also stressed necesslty of protectlng Ils secur/ty Interests Since the U.S. and Iran were not ln a state of war, U.S. shlps (when passlng the strart) dld not quahfy as enemy shlps because the pnnclple of freedom of navigatIOn ln Ihe exclusive economlc zones IS accepted ln practlce and ln law, but accordlng to the above mentloned paragraph, no mlhtary operations other than Simple navigation are permlsslble wlthln the EEZ (See R Wolfrum, "Reflagglng and Escort OperallOn ln the Perslan Gulf", [Vol.29 1989) Va.J.lnt'l.L. 387 at PP.394 and 395). Legal Aspects of the IR655 Tragedy Page17 of freedom of navigation in the EEZ by eustomary internationallaw, there should be no difficulty for commercial vessels to gain access to the strait of Hormuz. However, the situation becomes more eomplicated inside the Strait, because at its narrowest part, the strait is 20.7 miles wide, and both Iran and Oman have declared a 12 mile territorial sea, which therefore causes overlap in the area. Although bath states have accepted a regime of innocent passage throughout either territorial sea, including the Strait of Hormuz, they have equally declared the necesslty to protect their respective security interests.52 2.2)Were United States' Oper.tions Re.lly Peace-Keeping? ln the preamble ofthe U.N. Charter, ail member States expressly committed themselves ta live with one another in peaee and as good neighbours and l'ta unite the;r strength to maintain peace and seeurity" in the world. Furthermore, Article 2 para.4 of the Charter states that "all members shall refrain in their international relations from the threat or use of force against the territorial integrity ll or politieal independenee of any state • Neutral states have thus been supposed to be partieularly fit for peaee-keeping operations in eonformity with the above 53 mentioned Article , and for seriously eonsidering the involvement of possible 52 Id. at 394. 53Examples of operations Justifiable as peace-keeping are: Finland has participated in the Middle East and in Cyprus and Austria sent medical groups ta the Congo and ta Cyprus and also a police contingent ta Cyprus. An opposite instance is: The participation of Swedish troops Legal Aspects of the IR655 Tragedy Page18 harm in any action that may endanger its neutrality before it offers to partlcipate. We may therefore question whether the United States' participation in peace keeping operations were "constantly sate" trom the view point of neutrality. 2.3)The United States as a Neutra' State The term "neutrality" means a legally regulated position of astate that is not a party to the armed conflict.54 This concept in law is based on the desire to be sure that tirst there will be no harm done by a neutral state, and second that It will be really neutral in that it must prevent its terntory from becomlng a "base of operation" for either belligerent. 55 A neutral state IS prohibited tram supplylng warships am munition or war material of any kind and ln any manner to a belligerent state. If a neutral state fails to even prevent a private individual from exporting war mate rial which is already armed and ready for action to astate involved in a military conflict, this constitutes a violation of the laws ot neutrality.56 The Hague Convention obligates a neutral state to prevent the arming of any in the United Nations' action caused other countnes to react agalnst Il. See mfra note 54 at p.53. 54Both the 1907 Hague Convention on the rights and dutles of neutrals and customary internationallaw are sources of the relevant rules related to neutral state, See H Bhx; Soverelgnty, Aggresslon and Neutrality Pub!. by the Dag Hammarsklold FoundatlOn, Uppsala: Almqvlst & Wiksell (1970) at p.42. 55See Y.Dlnsteln; Neutralrty ln Sea Wartare, Encyclopedla of Public International Law, Vol.4, Infra note 219 19-28 at p.19. 56Id. at pp.21-23. Legal Aspects of the IR655 Tragedy Page 19 vessel withln Its Jurisdictlon for use in hostile actions against a belligerent state. The Alabama Case (1872) between Great Britain and the United States of America is a famous case in which a neutral state was held responsible for allowing expedltions to be equipped within its jurisdiction to carry out military operations agalnst another state 57 The constraints inherent to the status of neutrality were weil summed up by T.Nilson, Swedish Foreign Minister, in 1965: "The neutral country must each day exert itself to build up and cherish this confidence. Firmness and consistency must be shown by the representatives of the policy of neutrahty ... 58 During the Iran-Iraq war, the United States was particularly eager to abet Iraq for Its military activities against Iran. For example, American AWACS acted as air controllers for Iraqi attacks against a number of targets in Iran.59 ln addition, one can understand fram the Hague Convention V, 1907 Art. 8 that astate is obhged not to let belhgerent use its services for the transmission of letters or telegrams to extend their interests, because this would constitute direct aid to the belhgerent. 60 Breaches of the duties owed by the United States as a neutral power under International customary law or conventions on neutral obligations and 57See P.Seldel; "The Alabama", Encyclopedla of Public International Law, Vol.2, supra note 219 at p.11. 58See supra note 54 at p.43. 59See Newsweek, The International Newsmagazine; July 13, 1992 at p. 15. See ABC News Transcnpt supra note 33 at p. 1 O. 60See United States, Laws, Statute, The laws of neutralrty as existlng on August, 1 ,1914, Washington, Government Printlng Office (1918) at p.91. Legal Aspects of the IR655 Tragedy Page 20 duties do not differ trom breaches of other international obligations. Breaches of international law by the USS Vincennes as a neutral warshlp and Its entry Into Iranian territorial waters led to IR655 tragedy. In practlce, If the United States had wished to remain neutral it slmply had to refrain from undertaklng hostile actions against Iran. 2.4) Position of the USS Vincennes and the Quesfion of SOlleleignty The term sovereignty characterizes the independence of a state and one of its consequences IS an obligation of that state not to intervene in the territory of another state, since territory is a physical precondition for the very existence of astate. The duty of non-Intervention has been established as a principle of general internationallaw, customary internationallaw and the law of the United Nations. Although U.S. warships had the right of innocent passage through the Strait of Hormuz, they could not conduct military activities in Iranian terntorial waters. 61 The geographical co-ordinates given in Appendix A-11 of the ICAO Investigation Report indicates the position of the USS Vincennes in the Iraman territorial sea. The U.S. warship enforced the NOTAM previously made by the FM and Imposed 61See Corlu Chanel (U-K v. Albanla) 1949I.C.J. 4(merrts). In thls case the Court daclded that U.K could not conduct mllrtary actlVltleS, minesweepmg operations, ln Albanlan waters, aven though it had the rrght of Innocent passage. ------Legal Aspects of the IR655 Tragedy Page21 restrictions upon clvillan aircraft in an area which was outside its aeronautical Information service jurisdiction.62 Since such activities would Interfere with Iranian control over its territory and its right to be free fram foreign intervention, the United States consequently violated internationallaw. The maintenance of international peace requires that the loss resulting trom its action should be rightly compensated. 2.5) Freedom of the High Seas The high seas are open to ail states, whether coastal or land-Iocked. In the high se as ail states enjoy, inter alia, the traditional freedom of navigation and overflight. The high seas are reserved for peaceful purposes and no state may validly purport to subject any part of the high seas to its sovereignty.63 2.6) Military Use of the Territorial Sea by Foreign Vessels Article 3 of the United Nation Convention on the Law of the Sea of 1982 grants every state the right to extend the territorial sea up to 12 nautical miles into the ocean,64 thus bringing the airspace over this area under its complete and 62Appendix A of ICAO Investigation Report at A-11. 63See supra note 45 at Arts. 86-88. 64 d ' Legal Aspects of the IR655 Tragedy Page 22 exclusive sovereignty. 65 Under international law, innocent passage Involves the transit of forelgn ships as long as it is not prejudicial to the peace, good arder or secunty of the coastal 66 state . However, the innocent passage of warshlps is Incompatible wlth coastal sovereignty because warships have a different functlonal objective than do commercial vessels. The Convention on the Law of the Sea states that warshlps enjoy the right of innocent passage, but they cannot engage ln mllitary activities S7 during such passage . The Convention enumerates activltles which are prejudicial to the peace, good order, or security of the coastal state and these have an unmistakably military nature (e.g. any exercise or practlce Involvlng weapons, the launching or landing or taking on board of any aircraft etc.) and are therefore typically carried out only by warships.68 Since no military operation, other than simple navigation, is permissible within a state's territorial sea, U.S authorities were not allowed to impose restrictions over that area by issuing their NOTAM. It is necessary to add that although art. 298 of the United Nations Convention 65Chicago Convention Article 1. 66See supra note 45 at Article 19(1). 67 A sigmficant number of states, and perhaps a maJorJty, require prlor authonzatlon for the passage of walshlps. This Idea formulated by ILe at rts elghth session. It has been argued that °if any warship does not corn ply wlth the regulatlons of the coastal State concermng passage through terrrtonai sea and dlsregards any request for compliance whlch IS made to rt, the coast al State may requlre the warshlp ta leave the terrltonal seao. Art. 23 of Geneva Conference of 1958, See mfra note 258 at 197-198. sa/d. at Article 19(2). Legal Aspects of the IR655 Tragedy Page23 on the Law of the Sea 1982 is not in force, most provisions of the Convention are a restatement or codification of existing conventional and customary international law and of state practiee. Up to now states have proved this conclusion by their unilateral actions to extend their junsdiction over areas of the sea. States have reeognized that although there is no general acceptance, provisions of the Convention are in force in so far as they restate the principle of customary internationallaw.69 69M. Milde, ·UN Convention on the Law of the Sea, Possible Implication for International Air Law", Ann. AIr & Sp. L. Vol. V111 at pp.168 and 179. Legal Aspects of the IR655 Tragedv Page 24 Chapter 3: The Chicago Convention and the ICAO Position 3. 1)Int.rnationa' Civil Aviation Organization The Chicago Convention was adopted in 1944 to address civil aViation concerns (such as sovereignty, co-operation, and safety of civil aviation). The IR655 incident must be considered in the light of that Convention. In 1944, Representatives from more than fifty states assembled ln Chicag070 for the Convention on Civil Aviation, which involved the economlC, technical and legal aspects71 of international civil aviation. ICAO's primary goal is both to ensure safety, regularity, and efficiency of civil aviation by adopting norms regulating 72 international flights , and to develop the future of civil aVlation?3 To achieve these objectives it is necessary to promete co-operation74 in the field of international civil aviation among States. Through co-operation, the ICAO seeks ta maintain security for civil flights as weil as ta create fnendship and 7~hey were invited by the U.S. Government. See T.Buergenthal, law-maklng ln the International Civil AViation Organizatlon, N.Y.: Syracuse Untverslty Press (1969) at p.4. 71 1ts first obJect was to establish a legal framework Id 72The alms and objectives of the OrganlzatlOn are set out ln Article 44 of the Chicago Convention. 73See Preamble of the Chicago Convention. 74For example; Co-operation is emphaslzed ln Article 3 (cIVil and state alrcraft), Chapter 1V of the Convention (measures to facilitate air navigation), etc. Legal Aspects of the IR655 Tragedy Page 25 understanding among States.75 Sovereignty, co-operation, and security in the Convention are interllnked. In its first Article, the Chicago Convention reaftirmed the IIpnnciple of sovereignty" already generally recognized under customary international law76 and proclaimed ln the Paris Convention of 1919. It asserts that "every State has complete and exclusive sovereignty over the airspace above its territory .,,77 The Organization, consisting of 172 States (October 1992), performs its duties through the Assembly, the Council, and various subsidiary bodies?8 The Assembly, consisting of ail ICAO members, meets at least every three years ta IIdeal wlth any matter within the sphere of action of the Organization not speclfically assigned to the Council.,,79 The ICAO Council is composed of thirty-three Contracting States80 which are elected by the Assembly for a period of three years.81 It is lia permanent body responsible to the Assemblyll82 and its functions have a legislative, judicial 75See Preamble of the ChIcago ConventIon. 76See I.Brownhe; infra note 258 at p. 287. 77 Art. 1 of the ChIcago ConventIon. 78For more Information on the functions of these organs See infra note 97 at pp. 1-170. 79Art.49(k) of the ChIcago Convention. 80Id. at Art. 50(a). 81 'd 82,d. Legal Aspects of the IR655 Tragedy Page 26 83 and administrative character. The President of the Council, who IS the chief executive officer of the Council, is elected for a term of three years84 and has to, inter alia, "carry out on behalf of the Councii the functlons whlch the Councii assigns to him." The President does not have any vote in the Council but he has a great influence in promoting the activities of the Organlzatlon 85 Two subsidiary bodies mentioned in the Convention are the ANC and the Air Transport Committee.86 There are three other subsldiary bodies which have also been established by the ICAO Assembly. 87 3.2)Accident Investigation Article 26 of the Convention on Civil Aviation Organization addresses the issue of investigating international aviation accidents, but fails to provide details on the nature and purpose of the investigation.SB ln order to provide for some speclflc international co-operation processes, 83For a discussion of these charactenstics, see I.Buergenthal; supra note 70 at pp. 1-195. 84Chicago Convention Art. 51. 85See supra note 80 at p.9. 86See supra note 80 at p.9; These subsldlary bodies are expressly mentloned ln the Chicago Convention ln Arts. 44, 56 and 57. 87/d. SBM. Milde, "Aircraft Accident Investigation in International Law·, [VoI.IX 1984J Air Law at pp.61-65. Legal A~:.pects of the IR655 Tragedy Page 27 accordlng to Article 37 of the Convention, "each contracting State undertakes to collaborate in secunng the highest practicable degree of uniformity in regulations, ll standards and organization • The ICAO Council has to adopt and am end International Standards and Recommended Practices and Procedures dealing with, mter alla, the investigation of accidents. The ICAO Council initially adopted standards and recommended practices for aircraft accident inquiries on April 11, 1951 ln accordance with Article 37 of the ConventIon on International Civil Aviation (Chicago, 1944). These Standards and Recommended Practices became Annex 13 of the Convention and were based on the recommendations of the Accident Investigation Division at its first Session in February 1946. They were further developed at the second Session of the Division in February 1947.89 According to Article 26, the State in which the aircraft accident occurs is under obligation to institute an inquiry in certain circumstances, and as far as it is permitted by its law, to conduct the inquiry in accordan ce with ICAO procedure. The procedures outlined in Annex 13 are not restricted solely to an investigation Initiated under the requisite of Article 26, but under prescribed circumstances, they apply in the event of an investigation into any "aircraft accident" within the terms of the definition in this matter. In arder ta maintain the correct relationship between the provisions of Article 26 and those of the Annex, it is important to mention that nothing in the Annex must contravene the expressed terms of Article 26 or any 89ICAO International Standards and Recommended Practlces: "Alrcralt AccIdent Investigation" A/mex 13 to the Convention on International Civil Aviation, 7th ed. May 1988 at Historical background. Legal Aspects of the IR655 Tragedy Page28 other Article of the Convention. Annex 13 also states that the Annex may deal wlth any relevant matter whether or not it is expressly dealt wlth by Article 26 or by any other Article of the Convention. 90 As will be explalned ln the followlng paragraphs, the present case is not relevant to the provIsions and pur poses of Annex 13. The safety of air navigation and the prevention of incidents and accidents IS one of the main purposes of ICAO. Although the air transportation industry IS a necessary and a useful service, it could also be descnbed as a dangerous actlVlty. Once an accident occurs, many tragic consequences may flow fram It. Therefore, there is an important and primary public demand to Imprave air transportation safety. At the present time, the accident investigation process IS recogmzed on both the international and the nationallevel as one of the essential elemants of any sound programme for the improvement of air transportation safety 91 Annex 13 is expllcit in stating that the obJect of an Investigation is the prevention of further accidents and Incidents. Chapter 3.1 of Annex 13 states, "The fundamental objective of the investigation of an accident or Incident shall be the prevention of accidents and incidents. It is not the purpose of thls activlty to apportion blame or liability".92 9O'd. at Forward. 91Seklguchl M. "Aircraft Accident Investigation in Canada, the U.S. and Japan'IASL, McGl1I University 1981 at p.1 . • 92See supra note 89. Legal Aspects of the IR655 Tragedy Page29 Both Article 26 and Annex 13, however, were not the legal basis for consideration by the Council of ICAO in the IR655 incident. The IR655 incident was referred to the Councii by the Government of Iran to consider the matter. 93 The Iranlan Government asked the ICAO Council to condemn the shooting down of IR655 by the U.S mlhtary forces ln the Persian Gulf. The Government also asked for expllclt recognition of a crime of international character relating to the breach of International law and legal duties of a contracting State of ICAO. It is quite eVldent that the Inquiry under Article 26 does not answer the task of the Council lOto conslder the matter" because the inquiry looks into the technical circumstances of the InCident ln order to determine the relevant causes with the aim of preventing the recurrence of these technical causes. Article 26 and Annex 13 deal with the technlcallnquiry while the Council, as a policy making body of the organization, may consider the matter in order to establish the right interpretation of the ChIcago Convention. Consequently, the inquiry under Article 26 deals with technlcal aspects and is different from the Secretary General's investigation requested by the Council under Article 55(e) '10 institute an immediate fact-finding investigation to determine ail relevant facts"94 for considering the IR655 incident. Another argument which emphasizes the tact that Article 26 and Annex 13 could nat provide a relevant base for the Council's action lies in the distinction 9lrhe Flrst Letter whlch was sent to ICAO Councll by 'ranian Government, its REF. in Iranian Delegation ln ICAO IS 588/4 7.88. 94,CAO InvestigatIOn Report at p.2. Legal Aspects of the IR655 Tragedy Page 30 made in Chapter 1 of Annex 13 between the terms "accident" and incident". Here, lI accident" is defined as lIan occurrence associated wlth the operation of an aircraft" and an "incident" is defined as "an occurrence other than an aCCident, associated with the operation of an aircraft whlch affects or could affect the safety of operation." Article 26 of the Chicago Convention states that "In the event of an accident to an aircraft of a contracting State occurrrng ln the terntory of another contracting State [ ... ] the State in which the accident oeeurs willinstitute an inqulry into the circumstances of the incident".95 Annex 13 as weil sets out the pertinent International Standards and Recommended Practices to be adopted by Contracting States ln deahng with a serious accident to an aircraft of a Contracting State occurring ln the territory of another Contracting State, known as the State of Occurrence.96 It is qUlte evident that Article 26 and Annex 13 cou Id not be relevant ln the present case as a basis for the CouncWs action and do not provide any mandate for an action by the Council. 95rhe scope of Article 26 is rather hmited. Its main elements are: the State of Occurrence has the duty ta institute an investigation (inquiry) into the aCCident ln Ifs terrltory and such duty eXlst only with respect of forelgn alrcraft. See supra note 88 at p.62 . • 96See supra note 89 at para. 5.21 and 5.23. Legal Aspects of the IR655 Tragedy Page 31 3.3JICAO Council Can Consider Any Matter Under Article 55(e) of the Chicago Convention, 1944, "the Council may Investlgate, at the request of any contracting State, any situation which may appear to present avoldable obstacles to the development of international air navigation, and after su ch Investigation issue such reports as may appear to it deslrable" ln dlscharglng thls permissive functlon, the Council may take into account not only Jundlcal factors in the situation, but may also consider and base ItS report on economlc, technlcal, and other factors which are deemed equitable and convenlent.97 The same may be said of the procedures for the mandatory function under Article 54(n) which requires the Council to "consider any matter relating to the ConventIOn whlch any Contracting State refers to it". We may conclude that the function exercised by the ICAO Council in the case of IR655 was not legally bound by Article 26 of the Chicago Convention or Annex 13 978. Cheng,The Law of International Air Transport, published under the auspices of the London Instltute of World Affalrs, 1969 at p.99. Legal Aspects of the IR655 Tragedy Page 32 3.4) The Extraordinary Session of the Council 3.4.1) Convocation and Opinions Expressed on the IR655 Incident The day after the IR655 incident, the Iranian Government asked the ICAO Council to consider the matter. The Extraordlnary98 Session of the ICAO was convened on July 13 and 14, 1988 ln accordance wlth Article 53 of the Convention on International Civil Aviation and Rule 32 of the Councll's ru le of procedure, the Government of the Islamlc Repubhc of Iran was Invlted ta partlcipate as an observer, wlthout a vote. 99 To conslder the subJect, observers trom the Islamic Republic of Iran were present, led by M.J.Ranaelfar, Deputy Minister of Roads and Transportation and the Admimstrator of the CIvil Aviation 9Brhe convemng of an Extraordlnary Session of the Councii IS governed by Rule 20 of tlle Rules of Procedure of the Council whlch states "Between two consecutive sessions of tho Councll, the President, on hls own imtlatlve or at the request 01 a Contractlng Slate, after consulting the Members of the Councii and wlth the approval of the maJonty 01 the Memhers 01 the Councll, shall cali an extraordlnary session or change the date whlch the Courlcii has set for the opemng of the next session. No such action shall result ln a Counell Meeting belng tmld on less than seven days' notice' This Article repnnted ln, M Mllde, InternallonaL _t\I,/J~J(J!.l OrganlzatlOn; course materlal, lAS L, McGl1i Uni Fail 1989, at pp 17·28 99Art. 53 of the Convention on CIvil AViation states that 'Any contracling Siale rnay partlclpate, wlthout a vote, ln the consideratIOn by the Councii and by Its cornrTlIttUüs commiSSions of any question whlch speclally affects Ils Interests No member 01 the Councii shall vote ln the consideration by the Counell of a dispute ta whlch It IS a party , Rule 32 of the Counclls' ru le of procedure states that 'Any Contractlng State rnay partlclpate, wlthout a vote, ln the consideratIOn by the Councii and by ItS Cornrmttüe5 and Commissions of any question whlch especlally affects ItS Interests (Article 53 of the Convention) The President may Invite sueh participation where he conslders that the condition 01 5pecJaI Interest IS fulfilled If a Contractlng State requests permission ta partlclpate on the grounds 01 special Interest, the President may approve the request If he flnds tha! the condition 01 special Interest IS lulfilled; otherwlse, he shall reter the request to the Councii lor final decfslon • Id Legal Aspects of the IR655 Tragedy Page 33 Organlzatlon The Representatives of the U.S. Government were also present, led by R S Wllhamson, Assistant Secretary of State for International Organization Affalrs 100 ln hls opening statement before the Extraordinary Session of the Council, its President, Dr.A. Kotaite, noted that: "The dominant priority subjects on the Orgamzation's future Agenda as in the past Will be civil aViation safety and security. In fact the basIc alm and purpose of the Organization as enshrined in the Convention on International Civil Aviation is to agree on principles and ta make arrangements in arder that international civil aviation may be developed ln a safe and orderly manner throughout the world. The fundamental principle that States must refrain from resorting tu the use of weapons against civil aircraft must be respected by each 5tate. It is the primary responsibility of our Organlzation towards its 159 Member States ta take a" necessary measures so that civil aviation grows safely as an indispensable means of communication between peoples of the world and ail essentlal element in the world economy. It is our responsibility towards each one of the more th an one billion passengers currently carned annually by air [ ... ] to be able to travel safely and with full confidence. AViation technology has made tremendous strides; however, that technology must remain firmly in the hands and control of humans, and humanity must not be overtaken or dominated by technology. It was with a deep sense of shock, distress and sorrow that we learned of the tragedy of the Iran Air Airbus. We express our deepest sympathy and condolences to the Government of the Islamic Repubhc of Iran and to the Families of the 290 innocent victim of this tragic event. 101 The Representative of each country expressed their condolences and sympathy to the Iranian Government and to the families of the victims and to the Governments of those countries whose nationals were on board the aircraft which H)()See ICAO Bulletin; July 1988 at p.19. 101/d Legal Aspects of the IR655 Tragedy Page 34 was the vlctlm of this misfortune. They deplored ail clrcumstances leadlng to the destruction of IR655 and the kilhng of 290 innocent lives. Although much effort was made to conduct the discussion ln tflchnlcal and legal terms usual in the ICAO Council, the diScussion was unavûldably pohtlcally influenced. Most of Representatives deplored the fact that the fundarnental principles of ICAO and its Annexes were threatened by the IR655 Incident. Sorne of the Representatives supported the establishment of an International commission to investigate the facts and circumstances surroundlng the InCident and to present its report to the 125th Session of the Council ln thelr closing addresses, both the observer from the Islamic Republic of Iran and the Representative of the United States expressed their satisfaction with the Presldent's summary slnce it addressed the realities of the situation. 102 3.4.2) Decision of the ICAO Council in its Extraordlnary Session The President concluded the delegates' discussions at the Extraordlnary Session by summarizing the salient points 103 and then adJourned the Meeting 102C_Min 1988/2 27/7/88; Extraordlnary Session of the ICAO Councii at pp. 12-13. 103/d. at pp. 9-10 The President summanzed the sallent pOints emanatlng from the discussion ln followlng elements: "1)the Councii duly consldered the request by the Islamlc Republlc of Iran concernlng the shootlng down, on 3 July 1988, of Iran Air Airbus A300 on fllght IR655, 2)the Councii expressed profound regret over the loss of 290 lives, 3)the Councii expressed ilS deepest sympathy and condolences to the Government of the Islamlc Repubhc of Iran and to the bereaved familles of the vlctlms of th,s traglc event; 4)the Council deplored the use of weapons agamst a CIVil alrcraft, Legal Aspects of the IR655 Tragedy Page 35 for consultations. After consultation, the Council, taking into consideration the request of the Iraman Government, deplored the use of weapons against a civil alrcraft and reafflrmed the fundamental pnnciples which were necessary to the safety of air navigation. The Council instructed the Secretary General to open Immedlately a fact-finding investigation 104 to determine ail relevant facts in the series of events relating ta the flight and destruction of IR655. Ali parties involved were encouraged to support the investigation by their co-operation. The Council requested that the President and the Secretary General present a complete report to the Council as early as possible during its 125th Session in September 5)the Council reafflrmed the fundamental pnnciple that States must refrain trom resorting ta the use of weapons agalnst civil alrcraft; It also appealed to ail States which have not yet done sa to ratify, as soon as possible, the protocol introduclng Article 3 bis IntO the Convention on International CIvil AViatIOn; Il also strongly urged ail States ta refrain from any action which mlght Jeopardlze the safety of cIvil aViation ln the area; 6)the Councii dlrected the Secretary General ta Instltute an Immediate tact-flnding Investigation to determlne ail relevant tacts and technlcal aspects ot the chain of events relatlng ta the fhght and destruction of the alrcraft; 7)the Councii urged ail parties concerned to co-operate fully ln the Investigation; 8)the President of the Councii and the Secretary General should present a full report to the Councii as early as possible dunng the 125th Session of the Councii in September 1988; 9)the Councii dlrected the President of the Councii and the Secretary General: (a) to continue thelr efforts wllh ail States concerned for the earliest possible establishment of surtable arrangements for the proper co-ordination of cIvil flight operations and mlhtary actlvltles wrthln the area so as to fully sateguard the safety of cIvil air navigation; (b) to take ail necessary measures, ln co-operation wrth the States concerned, to Improve the routlng arrangements ln the area so as to facllitate safe operation of cIvil air traffic; (e) to undertake immedlately ail neeessary studles for the Improvement of the standards and Recommended Practlces to prevent the recurrence of such a traglc Incident; (d) the President of the COU ne il and the Seeretary General should report to the Councii on the Implementation of (a), (b) and (c) above as soon as possible.' 1D4rhe legal basls for the investigation Includes, mter alla, Article 55(e) of the Chicago ConventIon whlch states: the Council may "lnvestigate, at the request of any Contractlng States, any situation'. Legal Aspects of the IR655 Tragedy Page36 1988.105 3.4.3) Discussion of the Draft Resolution Except for sorne different ideas on the form of the summary made by the President, the investigation was supported widely by the Representatives of each country. A suggestion made by the Representative of MexIco to have the text reproduced as a statement by the President, as weil as another suggestion made by the Representative of Venezuela to have the Report dlstributed ta ail the contracting States in conformity with Rule 60 of the Councll's Rule of the Procedure, were strongly supported by a consensus of the Council. 106 However, sorne other Representatives stated that it would be better If the text was distributed in the form of a resolutlon and not as a statement fram the Chair which, in this case, would be contrary ta the ICAO Councll's prevlous practices. 107 The Representative of the Soviet Union indicated that the fact finding investigation team mentioned in item 6 of the Resolution should be international in character, supported by ICAO, and conslst of hlghly-tralned experts from within the ICAO Secretariat as weil as fram the States 105,CAO Investigation Report at p.2. 106See supra note 102 at p.11. 107/d. for example the Representatives of the former Soviet Union, Kenia and Cuba. Legal Aspects of the IR655 Tragedy Page 37 concerned. 108 The President affirmed the USSR Representative's request by having these statements written down for the record. Then the Representative of Venezuela expressed the bellef that the doubts voiced by certain Representatives could be resolved if the Council could reach consensus that the President's summary pertectly articulated the views of everyone in the Council. 109 Since ail Ideas expressed were on the form of presentation of the text and there was perfect agreement regarding the substance of the text, the ICAO Council approved the Presldent's statement as its own decision. (See footnote number 103 of this text) ln accordance with the instruction of the ICAO Council, the Secretary General established an Investigation team consisting of five experts from the international civil servants in the organization's regular programme. The te am was joined by ATC experts made available by Sweden, as weil as by the Representatives of both Iran and the United States. 110 The Investigation Team concentrated on establishlng the facts surrounding the flight and destruction of IR655. Only technical aspects were considered; legal and constitutional considerations were not within the mandate of the team. The team expressed its conclusion after a 109rhe Representative of Venezuela expressed her idea on the Rule 60 of procedure of the Councii whlch states: "The final text of ail resolutions and declsions of the Council shall constitute documents of the Organlzatlon and shall be forwarded by the Secretary General to ail Contractlng States as soon as possible. Id. 110lCAO Investigation Report at p.4. Legal Aspects of the IR655 Tragedy Page 38 thorough analysis of ail the information, including Interviews with concerned officiais and other personnel. In the ICAO investigation team's report Important facts came ta light regarding the broader background whlch contnbuted to the event. Among other concerns, they Identlfied problems with the lack of adequate co-ordination by certain military units operating ln the Gulf area wlth the CIVil unlts responsible for the provisions of the air trafflc services ln the alrspace concerned, and with the use of emergency frequency 121.5 MHz to challenge CIVil flights in an operationally inadequate manner. 3.5) Civil/Milifary Co-ordination 3.5.1) Annex 11 1 Air traffic control services 111, flight information 12, alerting 113 services , which are important elements, among other facllities, ta ensure the safety operation of air traffic services, are dealt with in Annex 11 to the Chicago Convention. Pursuant to Article 37 of the Convention on International CiVil Aviation, 111 1CAO, International Standards and Recommended Practlces: 'Alr Trafflc Services' Annex 11 to the Convention on CIVIl AViation, 9th ed. July 1990, Chapter 3. 112/d. Chapter 4. 113/d Chapter 5. Legal Aspects of the IR655 Tragedy Page 39 Annex 11, adopted by the Council on 18 May 1950114, together with Annex 2 115 of the Convention, adopted on Apnl 15, 1948 , regulate the application of "the procedures for Air Navigation Services" and the "Regional Supplementary Procedures" The objectives of air traffic services are, as deflned in the Annex, inter alia, to "expedlte and maintaln an orderly flow of air traffic" and 110 provide advice and 116 Information useful for the safe and efficient conduct of flights" . For this purpose, ICAO estabhshed flight information centres and air traffic control units. Since both Civil and military flights use the same airspace, co-ordination between military authonties and air traffic services is necessary. To meet these obJectives, Chapter 2 of Annex 11 specifies the requirements for agencies responslble for activities that may affect civil flights. It states that "air traffic services authonties shall establish and maintain close co-ordination with military authoritles",117 and requires air traffic services units to IIprovide appropriate military units with pertinent flight plan and other data concerning flights of civil aircraft" 118. Co-ordination of activities potentially hazardaus ta civil aircraft with the 1141d at Foreword. 115Annex 2 of the Chicago Convention at Foreword. 116See supra note 111 Chapter 2 at p.7. 117 See supra note 111 para. 2.15.1. 118Annex 11 para. 2.15.3.1. !:::.Le=-og::l!a::.:...I.!.-A~s:l::p~ec~t~s....::0~f~th~e~I!..!...R~6~5~5-!T..!...!ra~g~e~d-!:J.Y______--,-=P~lliL 40 appropnate air traffic services authontles is essentlal and should be arranged as 1 soon as possible. 19 It is also recomrnended that location, tlmes and duratlon of the actlvities be arranged. 120 Chapter 5 of Annex 11 deals with alertlng services 121 whlch alerts rescue co-ordination ln the event of a state of emergency occurnng to an aircraft 122 or when it fails to commUnicate or arrive wlthln thlrty minutes of its arrivai time 123 3.5.2)CiviI/Military Co-ordination in the Gulf Area On November 18 and 20, 1987, the PreSident of the Councii addressed letters to providers of air navigation services in the area and drew thelr attention to air traffic congestion problems occurnng ln the Gulf He requested that they participate ln an informai meeting whlch would take place at the beglnnlng of December 1987 at the ICAO Regional Office in Paris for the purpose of the 119 Annex 11 para. 2.16.1 . 120 Annex 11 para. 2.16.2.1. 121 The Annex deflnes alertlng services as "A service provlded ta nOllly appropn8te orgamzatlons regardlng alreraft ln need of seareh and reseue ald, and asslst suet! organ/lat Ions as reqUlred.· See Annex 11 at p.2. 122Annex 11 at 5.1.2. 123Annex 11 at 5.2.1. Legal Aspects of the IR655 Tragedy Page 41 "establishment of temporary off-Ioad routing in the area". 124 As weil, he drew 125 thelr attention ta Resolution A26-8, Appendix p , and with reference to NOTAMs Issued by an international organization or other communications unllaterally relatlng ta operations in the Gulf. The President requested the provlders of air navigation services ln the area to asslst ICAO in the improvement of the safety of fhght operations ln the Gulf and the Gulf of Oman. Subsequently, the meeting was held on December 1 and 2, 1987 but no resolution on additional routrngs was reached. 126 124Ref Pres AKl144 20 Nov.1987 and AN 13/403 18 Nov.1987. 12500C.9509 Assembly Resolutions ln force as of 10 October 1986 "The Assembly resolves that. 1 the cam mon use by cIvil and mliitary aViatIOn of air space and of certain faclllties and services shall be arranged so as to ensure the safety, regularity and efflclency of International cIVil air trafflc, and 2. The regulatlons and procedures establlshed by Contracting States to govern the operation of thelr state alrcraft over the hlgh seas shall ensure that those operations do not compromise the safety, regulanty and efflclency of International cIvil air traff,c and that, to the extend practlcable, these operatIOns comply wlth the rules of the air ln Annex 2. Assoclated practices 1 Contractlng States should as necessary Inltlate or Improve the co-ordination between thelr civil and mlhtary air trafflc services to Implement the pollcy ln Resolvlng Clause 1 above. 2 The Councii should ensure that the matter of ciVil and military co-ordination ln the use of alrspace IS Included, when approprlate, in the agenda of divislonal and regional meetings. 3 When estabhshlng the regulatlons and procedures mentioned in Resolving Clause 2 the State concerned should co-ordlnate the matter wrth ail States responsible for the prOVision of air traffic services over the hlgh seas ln the area ln question.' 126C_M1n. 125/18 (part 1) 31.1.89 125th Session of the Council. Legal Aspects of the IR655 Tragedy 3.5.3) Routlng Arrangements and Clvll/Military Co-ordination ln the P~.rslé!rLGu!f Area A decision was made at the Councll's Extraordlnary Session he Id on July 13 and 14, 1988 that dlrected the PreSident of the Councll and the Secretary General, inter alla, to continue thelr efforts ''to establlsh proper clvll-mllitary co ordination" within the area and to "Improve the routlng arrangements" ln the area 127 so as to safeguard fully the safety of cIvil air navigation Two Informai meetings were held at the invitation of the PreSident of the Councii on October 3 and 4, 1988 and October 6, 1988 which covered both issues The flrst Meeting focused on the operations of military forces ln the area and found that the civil/military operations of the States present at the Meeting who also provlded air navigation services ln the area, "complied wlth, and in sorne cases exceeded, the requirements specified by ICAO" However, with regard to the operation of mllitary forces trom other States ln the area, the Meeting felt that they "should be associated with the process of establishing sUltable arrangements for the co ordination of civil tlight operations and mllitary actlvltles ln the Gulf area" 128 The second Meeting was held to discuss the provIsion of air trafflc control services on ATS route A59. The Meeting found clvll!military co-ordination of each of the States' individual forces within the area satlsfactory. It also consldered other 127See supra note 103. • 128C-WP/8718 1.12.88 125th Session of the Councll and C-Mm. 125/18 (part 1) 31.1.89. Legal Aspects of the IR655 Tragedy Page 43 problems ln the area, partlcularly NOTAM which was issued by the United States. Flnally, the Meeting requested that its views be brought to the attention of the ICAO Councii for more consideration. It Invited the Council, inter alia, to emphaslze the slgmflcance of appropnate application of paragraphs 2.14 and 2.15 of Annex 11 of the Convention whict'l are concerned with the co-ordination between civil/mllitary actlvities and the co-ordination of actlvities potentially dangerous to civil alrcraft by the States concerned. 129 Those decisions and diScUSSions on efforts made to improve routing and civil/military arrangemell~s were consldered by the ICAO Council130 in its 125th Session and pursuant to 131 an exchange of vlews on the subJect,the Council : "a)noted the developments to date concerning routing arrangements in the gulf area and concerning co-ordination of civil flight operation and mllitary activlties within the area; b) noted that efforts to obtaln suitable and improved arrangements would be contlnued in keeping with the Council's directives as reflected ln paragraph 1.1 of C-WP/8718; c)emphasized the importance of correct application by ail States concerned of the provisions of Annex 1 l, paragraph 2.14 concerning co-ordination between military authorities and air traffic services, the provIsions of Annex 11, paragraph 2.15 particularly paragraphs 2 15,1 1 and 2.15.3, concernlng co-ordination of activitles potentlally hazardous to CIVil alrcraft, and the provisions of Annex 15,paragraph 3.1, partlcularly 3. '1.1.1, regardlng promulgation of Information; d)dlrected the President and the Secretary General to secure the agreement of the States c.oncerned with regard to the correct application of the provisions mentioned in c) above in relation to potentlally hazardous actlvlties in the Gulf area; and 129/d 130C_MIn. 125/18 (part 1) 31.1.89. 131 C_DEC 125/19, 19.12.88, 125th Session of the Council. Legal Aspects of the IR655 Tragedy Page 44 e)urged ail States concerned to co-operate fully in completing the necessary arrangements concerning routing and clvil/mlhtary co ordination in the are a so as to ensure the safety of civil aViation Il 3.6)125th Session of the 'CAO Council ln December 1988, the 125th ordinary Session of the ICAO Councii met in Montreal. At this meeting, in accordance with Article 53 of the ConventIon on International Civil AViation and Rule 32 of the Council's Rules of Procedure, observers from the Islamic Republic of Iran partlcipated without a vote. At the opening of the meeting, the President of the Council drew the Council's attention to the report of the investigation which resulted fram the Council's declslon of July 14, 1988. The leader of the Investigation Team was invited to present the report The introduction of the report stated that the Team had concentrated on estabhshing the facts of the incident. It considered only technlcal aspects and dld not take legal and constitutional aspects into consideration. The report stated that the aircraft's flight had been conducted as a normal routine civil airline operation, that after take off IR655 had climbed stralght ahead enroute, and that the alrcraft's climbing profile was normal for a civil flight operation. The leader added: ''the erroneous assumption by the USS Vincennes was maintained thraughout the flight of IR655" until It shot the aircraft down approxlmately flve miles off the coast of Oeshm Island. Finally, he enumerated the Important facts whlch contnbuted Legal Aspects of the IR655 Tragedy Page45 slgnlflcantly to the event and declared some recommendations. 132 The observer fram the Islamlc Repubhc of Iran was the next speaker. He expressed hls dlssatlsfactlon with the Council's decision taken during the Extraordlnary Session of the Council and, as weil, wlth the failure of the Council to take immediate measures to change the hazardous situation created by the United States' Illegal mllitary activities in the region long before the occurrence of the inCident. He requested both that the attention of the Council be focused on condemmng the shooting down of IR655 as an unambiguous recognition of an International crime, and that the responsibility of the United States Government to pay compensation for the damage caused be recognized. 133 Several times dunng the 125th Session of the Council, the observer of the Islamic Republic of Iran elaborated on different issues surrounding the IR655 incident. These issues included matters such as NOTAMs and the circumstances surrounding the issuance of NOT AM by the United States, challenges that were broadcast by the United States warshlp during the first seven minutes after take off of the aircraft, the positlomng of U.S. warships in Iranian territorial waters, the impossibility of misidentifying IR655 as an F-14, the belief that the USS Side was quite aware that what was termed an unidentified target was indeed a civilian aircraft, and the necessity of civil-military co-ordination. The Iranian observer also drew the Council's attention to para.j) of Art.54 of the Chicago Convention which clearly 132C_Mln. 125/12 125th Session of the Cou ne il at pp. 4-7. 133/d atpp.10-11 Legal Aspects of the IR=6=55:::...... :.T..:..:ra::o::g;L:e=d~y ______--.-!P~a~gl!:::e~46 states that the Council should report to Contracting States any Infraction of the Convention on International CIVil AViation, as weil as any fallure to carry out recommendations or determinations of the Council. 134 The Representative of the United States spoke several tlmes as weil He declared that the report of the fact-finding Investigation of events relatlng to the flight and destruction of IR655 was very comprehensive and technlcally accu rate He suggested that the Council refer this report to the Air Navigation Commission for a full review of its hlghly technlcal matenal. 135 The ANC, he sald, IS the most accurate forum for discussion of the highly technlcal procedures Involvlng NOTAMs. He asserted that The United States, in its Issuance of NOTAMs and ln the dissemination of aeronautical information, had attempted to inform ail parties concerned. He declared that the United States Government knew that ail governments involved in this incident were aware of the Information stating that the promulgation of the NOTAM in no way contributed to the accident; ln fact It had prevented other accidents fram occurring. The situation would not have been better if th~ F AA had not promulgated a NOTAM ta the Perslan Gulf States. The U.S. Representative said, that the U.S. has a serious concern for the safety of cIvil aviation in the Persian Gulf area, and he agreed that they must try to Improve co ordination between Civil and mihtary flights. A significant number of speakers wished the Council to formulate an 134Id. at pp.18-30. 135Id. at pp.12-13. Legal Aspects of the IR655 Tragedy Page47 appropnate resolutlon on the subject matter136 and supported the idea that the report be sent to the ANC to elucidate the technlcal circumstances. The Iranian observer stated that his Government would like ta know exactly what the Council expected the ANC to do 137. The Representatives of different States sald that States must refrain from any measures which mlght endanger the safety of civil l38 aViation, and partlcularly from resorting to the use of weapons. Speakers 139 expressed thelr Idea about the NOTAM issued by the U.S. as weil as their opinion of the Investigation Team's report, especially the necessity of improving operatlonal co-ordination between civil aviation and military aviation authonties 140, particularly in the area of communication. With respect to the nature and quality of the report,141 The Representative of Czechoslovakia stated 136But they dld not suggest any speclflc method for examlmng the Incident ln the framework of the ICAO The Representative of the United Klngdom, offenng an acceptable wordlng for an agreed-upon statement or resolutlon, stated that 'It is not the responslbilrty of thls Council to comment on the dlfflcult and complex polltlcal Issues whlch 5urrounded thls Incident nor 15 Il the responslbliity of thls Councii to seek ta apportlon personal blame.' Id at 12. 1371d at p.18. 138Examples are, the Representatives of China stated that ,he U.S. Government has unshnnkable responslbllrty for the Incident, so, the compensation should be pald for the loss of lives and property ln the Incident'. Id at 28. 139For example, the Representative of the United Republic of Tanzama stated that the NOT AM should be wlthdrawn to create safe conditIOns for cIvil air trafflc operations ln the area. 140For example, the Representative of Panama caUed If the only means of ensunng the safety and orderly development of cIvil air operations and preventive measures agalnst a recurrence of the traglc events. 141 C_M1n. 125/13 125th Session of the ICAO Councll. There were other ideas ln this matter; for Instance the Representative of Kenya stated that the Report was a very good report but not a perle ct one, and the Representative of Canada thought that the team of experts was Independent and congratulated the fact-findlng Investigation for the thoroughness and timellness of the report The Representatives of Japan and China stated that If was a tremendous work Legal Aspects of the IR655 Tragedy Page 4B that the report of the Investigation Team dld not "fully correspond to the task" tor whlch It was Issued, because "thlS team has not consldered and evaluated ail available tacts and information obJectlvely".142 He stated that desplte the many objective facts that were presented ta the Councii on pages 23 and 24, the Investigation Team of ICAO had arnved at no correspondlng conclusion ta them The Czechoslovakian Representative argued that, Instead of carrylng out the objective investigation itself without any influence, the Investigation Team had declded to present ln sorne of the subparagraphs information that was copled from the report prepared by the U S., and had made th,s Information Its main reasons and arguments for the final evaluatlon of the causes of destruction of IR655. He said that the responslbihty for prevldlng the aeronautlcal Information services and publishing correspondlng Information belongs to the Contractlng States ln the Region, and not to the State whlch IS many thousands of miles away Therefore, this Representative consldered the NOTAM promulgated by the US invalid. The Representative of Czechoslovakia concluded that the final declslon of the USS Vincennes' commanding ottlcer ta shoot down IR655 was not ln conformity with ail the details and techmcal Information whlch the commandlng otticer had available during the last few minutes before he Issued the order for firing the missiles. This traglc act was carned out as a ruthless and an unforglvable done ln such a short penod. The Representatives of China and Japan stated that rt was a tremendous amount of work done ln such a short tlme. 142'd at pp. 13-16 Legal Aspects of the IR655 Tragedy Page 49 violation of the very well-known principles of international law. 143 The observer from the Islamic Republic of Iran was the last speaker. He quoted Art.54 (j) on the mandatory function of the Council, which states that it must. "Report ta contractlng States any intraction of this Convention, as weil as any failure ta carry out recommendations or dete:-mination of the Council". Then, ln thls regard, the President explained that the ANC would be free to consult the Legal Bureau if a legal opinion, or interpretation, was requested on the topic under consideration. He also drew attention to another mandatory function of the Council stated in Article 54(k}, and indicated that any decision made should be reported to the next ordlnary Session of the Assembly. After the Representatives of the different States expressed their views regarding ail aspects of the matter and discussed the draft Resolution prepared by the President of the Council, the Council of the ICAO reached its decision. This decislon was made at the 14th meeting of the 125th Session on December 6, 1988. 144 1441d The Council: 1 Recalled Its declslon of 14 July 1988 adopted at Its Extraordinary Session concermng the shootlng down, on 3 July 1988, of Iran Air Airbus A300 on fhght IR655; 2. Recelved the report of the fact-flndlng investigation Instltuted by the Secretary General pursuant to that declslon of the ICAO Councll; 3. Recogmzed wlth appreClatlOn that ail parties concerned co-operated fully ln thls Investigation 1 4. Expressed agaln Its profound regret over the IOS5 of 290 lives and its deep sympathy and condolences to the Government of the Islamlc Repubhc of Iran and to the bereaved famihes of the vlctlms of thls traglc event; 5. Urged ail States to take ail necessary action for the safety of navigation of civil aircraft, partlcularly by assunng effective co-ordination of civil and mllitary actlvltles; =L=eg~a~I~A=s~p=e=d=s~0~f~t~h~e~I~R6~5~5~T~ra~g~e~d~Y ______-uPage 50 3.7) 120th Session of the Air Navigation Commission Further to the ICAO Council's decision of July 14, 1988145, the preparation of the fad-finding Investigation report, and the consideration of that report by the Council, the Council found it necessary to refer the safety recommendations contained in the report ta the Air Navigation Commission for further study. In addition, the Council requested the ANC ta examine the results of the studies which had been undertaken after Its previous deCISlon on July 14, 1988. These studies focused on improving the Standards and Recommended Practices ta prevent the recurrence of such a traglc inCident. The Commission studied the safety recommendation and it also cansldered the report by the Secretariat an the improvement of SARPs. 146 Since the study of the ANC was limited to examlmng the safety 6. Reafflrmed agaln the fundamental pnnclple of generallnternatlonallaw that States musl refrain from resorting to the use of weapons agalnst CIVil alrcraft; 7. Appealed urgently to ail States whlch have not yet done sa ta rat Ify , as soon as possible, the protocollntroduclng Article 3 bIs Into the Convention on International CIVil AViation, 8. Instructed the Arr Navigation Commission ta study the safety recommendatlons contalned ln the report of the fact-flndlng Investigation and ta report ta the 126th Session of the Council on any measures It conslders necessary sa as ta provent the recurrence of a simllar traglc event; 9.Directed the Air Navigation Commission ta examine upon the" completlon, the results of the studles undertaken under paragraph 9(c) of the Councii declslon of 14 July 1988, 10. Declded that C-WP/8708 no longer has a restncted character, and 11. Decided ta Include the Report of InvestigatIOn as reqUired ln the Councii daclslon of 14 July 1988 ln the Work Programme of the 126th Session of the Councii 145C_Min 1988/2 27.7.88 Pnnted ln ICAO Bulletin July 1988 at p. 19 146See; AN-WP/6289 see also an analysis of the recommendatlons outl/ned ln C-WP/8708. See Appendix C Legal Aspects of the IR655 Tragedy Page 51 recommendatlons contalned ln the fact-finding investigation report, which (as expressed by Representatives of dlfferent States) was not a complete report, it 147 was Impossible for the ANC to make a complete conclusion on the report . This Instruction dlffered fram the mandatory function given to the ANC by t~ ~ ICAO Councii ln ItS Extraordlnary Session on KAL 007. 148 ln thls case, the Council dlrected the ANC to consider possible amendments to the provisions of the ConventIOn and its Annexes, and to examine ways to Improve both the clvll!military co-ordination, as weil as the "procedures in cases involving the Identification and Interception of CIvil alrcraft". The ANC was instructed by the Councii to adopt new rules to ensure the safety of civil aircraft. 149 Dunng the discussions of the commissioners, it was stated that although the current SARPs were adequate, they could be Improved in order to understand them more easily. IFALPA's Task force had studied the facts available and presented ItS comments and recommendations. Most Importantly, the IFALPA's task force commented on the definition and identification of an area potentlally hazardous to International flights. It . ecommended that, inter alia, whenever there 147See; AN Mm. 120-621.2.89 related to AN·WP/6289 Presented by Yu P.Darymov, and see also AN Min 120-6 al p.23. Mr.Darymov suggested that "the ANC defer discussion of AN WP/6289 untliits mandate was broadened ta Include the full report of the investigation'. In his presentation, he enurnerated some of weaknesses of the ICAO Investigation Report. For example, he sald that the report dld not determlne the place at whlch IR655 was shot down or dld not say whlch rules of Interception has been vlolated. 1489680.C/1 014 Councii Extraordmary SeSSion, 20 August 1973 and 80th Session 1 October- 13 December, 1973, Montreal. 149(1983) 22 Int'I Leg. Mat. 1157. Legal Aspects of the IR655 Tragedy Page 52 is a reasonable doubt that the safety of a civil aircraft ln an area IS, or is beheved to be, hazardous, the appropriate authonty should designate It as an "Area of Confllct" (AoC) or IIPotentially Hazardous Airspace" (PHA). The responslble state authorities should, inter alia, designate the area and deflne Its dimension If It falls to do thlS, ICAO should deslgnate the dangerous area.1~ IFALPA recommended that ICAO should particlpate ln or monitor the estabhstlment, duties, and responsibility of the civil/military co-ordination cell ln an AoC or PHA area 151 since ICAO, as a neutral party, was in a position to co-ordlnate international civil aviation in an IIArea of Conflict" 152 It mlght be argued that ICAO could not play the role of an executive Institution because any endeavour to allocate executive function to ICAO would mean that ICAO would be responslble or liable. Since only states have obligations or responsibihtles ln connection with international civil aViation, this would glve rlse to a host of legal complications. Although ICAO does pertorm sorne executlve functlons 103, they are ultimately the responsibility of the States. ICAO also cannot be consldered a IIneutral element" because ICAO itself, as a Representative of 172 States who have at least conflictlng interests or conflicting interpretatlons, is a place for consultation 150ANC Task NO.RAC-8801 and 8901 related to AN-WP/6289 pp.1-2. 151/d at p.3. 1528ee supra note 147 at p.24. 1538ee; Articles 71 and 72 of the ChIcago ConventIon. Legal Aspects of the IR655 Tragedy Page 53 and co-ordination and does not have an executive function of its own. 154 ln its study, the ANC Identified a number of elements fram ICAO provisions that had the status of guidance material and requested the Secretariat to develop them for early review by the Commission. It was said that those elements would be included in ICAO Manuals 155 Publication of these Manuals by ICAO, as weil as the insertion of "notes" in the body of Annexes which appeared in some of papers prepared by the ANC, ignited some discussions between the commissioners and ICAO Legal Bureau. It was stated that: 1)"Notes" cannot be a part of SARPs or used for interpretative purposes because they have no legally-binding force. 2) There is no legal binding power for Manuals and they do not give any "operatlonal" functions or obligations to ICAO, but ICAO can provide "good offices" under them. 3)lt would be a great and unexpected development if the Organization had given the power to promulgate NOTAMs. The Air Navigation Commission, at several meetings and after discussion and consideration of many proposais aimed at the Improvement of the current Standards and Recommended Practices, found them to be adequate, in relation to military activities. The ANC stated that one 154AN-Mln. 120-8 120th Session of ANC at P.32. 155See; C-WP/8803 126th Session of the ICAO Council al p.S. Legal Aspects of the IR655 Tragedy Page 54 Recommended Practice in Annex 11 should be upgraded to a Standard 156, to provide the necessary safety protection for civil aircraft. ln its final conclusion, the ANC, because of the scope of its duty, dld not pass a judgement on the IR655 destruction, but rather emphaslzed that if the current provisions had beeo properly carned out, the present Incident should not have happened. 157 3.8) 126th Session of the Council The ANC invited the ICAO Council to note its conclusion as weil as the safety recommendations provided in the report of the Investigation Team, which were presented for the Council's consideration. In this Meeting he Id on March 13, 14 and 17, 1989, the Representatives of different countnes expressed thelr views on the matter. Some of them believed, inter alla, that; -The task done by the ANC had been of a high-quality 158 and the Information obtained was enough for the Council to make its final and substantive 156Annex 11 paragraph 2.16.1.1 reads:"lf the appropnate A TS Authorrty 15 not that of the State where the Organlzatlon planning the actlvitles IS located, Initiai co-ordinations should be effected through the ATS authority responsible for the alrspace over the State where the OrganizatlOn IS located." 157See supra note 155. 158C_MIn. 126/18, For example, the Representatives of the USSR (at p.21), France (at p. 27) and U.K. (at p. 27). Legal Aspects of the IR655 Tragedy Page 55 declsion 159 -The current ICAO Standards and Provisions were adequate. The ANC asked the Organlzation to urge ail States to implement appropriately the ICAO provisions whlch were essential to prevent Incidents; 160 -This tragedy was an accident and not a premeditated act; 161 -The ANC's recommendation with regard to the development of an appropriate gUidance matenal were necessary for both civil and military authorities; -The co-ordination between civil and mihtary activities was significant. However, the observer fram the Islamic Republic of Iran stated that, in spite of its importance in the safety of civil fhghts, the issue of co-ordination had least relevance in the matter since this incident happened in Iranian airspace, with U.S. naval forces intrudlng on Iranian territory .162 The Council then expressed satisfaction with the ANC report and requested the Presiaent of Council to prepare appropriate resolutions implementing the report's various relevant elements. The Council continued to hear proposais on the draft Resolution 163 159For example, the Representatives of Czeehoslovakla (at p.18), France (at p. 28), Ghana (at p.28), SWltzerland (at p.29), Tanzama(at p.31), and Tumsla (at p. 32). 160For example the Representative of Egypt at p.25. 161 For example, the Representatives of Italy and U.K. (at pp. 26-27) and Australia (at p.30). 162/d at p.31 163C-WP/8821 The observer trom the Islamie Republie of Iran stated that the text was not acceptable because Il lacked certain elements which were expected to be embodied in that resolutlon. Legal Asp-ects of the IR655 Tragedy Page 56 prepared by Representatives of the United Klngdom 164. The Representative of the Soviet Union 165 made known the desire of his delegatlon for an amendrnent to the sixth clause of the text. The amendment reads: "Condemns the use of armed force against civil aViation, includlng act which resulted in the traglc destruction of an Iran Air alrllner and the 10~ts of 290 lives, whlle noting the accidentai sequence of events and errors in the identification of the alrcraft Il Pursuant to Rule 41 of the Rules of Procedure for the Councl1 166whlCh states "[a)ny member of the Council may Introduce a motion or amendment", the Council cunsidered the amendment and upon proposai of the Representative of Czechoslovakia and in accordance to Rule 51 of the sald Rules 167 whlch states that [ ... ) the vote shall be taken by secret ballot if a request to that effect IS supported ... " the Cc.)uncil proceeded to vote and the amendment was reJected with 6 votes in favour, 19 against, and 6 abstentlon. 168 The Council, a\'ter the Representatives commented on the draft Resolution approved the text Res,')lution in its unamended form. 169 164C-DEC 126/20 20.3.89 supported by Canada, France, Federal Republlc of Germany, Italy, Japan, Spain, Swltzerland and Austraha. 165Supported by the Repre~;entatlve of Czechoslovakla. 166See supra note 98 at pp.25-26. 167/d. 168See supra note 164 al p.2. 169/d. 'The Councll; Recallmg Ils decisions of 14 July and 7 December 1988 concernlng the shootmg down,on 3 July 1988,of Iran Air Airbus 300 on flight IR655 by a warshlp of the United States, LgllilJAsQects of the IR655 Tragedy Page 57 3.9) Some Legal Aspects of The ICAO Council Decisions As mentloned, the ICAO Councll, pursuant ta the Iranlan Government's request, consldered the IR655 case, on July 13 and 1 4, 1988. The Council contlnued ItS discussions and ItS declslon-maklng process ln December 1988 and March 1989 It made several requests: a) that the Secretary General set up a fact-flnding Investigation ta flnd out ail relevant facts. 1 70 Chapter XI (Articles 58-60) of the Chicago Convention refers ta the ICAO Secretanat (Secretary General and other Personnel of the Organizatlon). Legal ground for the Secretary General to Investlgate the facts IS based on Article 55(e) Havmg consldered the report of the lact-flndlng Investigation Instltuted by the Secretary General pursuant to the deCISlon of the Councii of 14 July 1988 and subsequent study by the Air NélVlgatlon CommiSSion 01 the salety recommendatlons presented ln that report; Expressmg appreclatlon lor the lull co-operation extended to the fact-flndlng miSSion by the auttlonlles of ail States concerned, Recal/mg that the 25th Session (Extraordlnary)of the Assembly ln 1984 unanlmously recogmzed the dut Y of States to refrain from the use 01 weapons agalnst cIvil alrcraft III fllght; Reafflff/lmg ItS pohcy to condemn the use of weapons agalnst cIvil alrcraft ln fllght wlthout preludlc..e to Ille provIsions of the Charter 01 the United Nations, Of'eply c1eplores the tl aglc Incident whlch occurred as a consequence 01 events and errors ln Identification of the alrcralt whlch resulted ln the accidentai destruction of an Iran Air alrhner and tlle loss 01 290 lives. Expresses agaln ItS prolound sympathy and condolences to the Government 01 the Islamlc Rppubhc 01 Iran and ta the bereaved familles, Apped/s age/tri urgently to ail Contractlng States whlch have not yet done so to ratlfy, as soon as possible. the Protocol Introducmg Article 3 bIS Into the Convention on International CIvil AViation, Notes Ille report of the lact-f1ndlng Investigation Instltuted by the Secretary General and endorses Ille conclusions 01 the AIr NaVigatIOn Commission on the safety recommendations contalned 111üWIIl, Urges States to take ail necessary measures ta safeguard the salety of air navigatiOn, partlcularly by assunng effective co-ordinatIOn of cIvil and mlhtary actlvltles and the proper Identification of CIvil airerait • 170See supra note 103 Item 6. Legal Aspects of the IR655 Tragedy Page 58 of the ConventIon whlch permits the Council to investigate "any situation WhlCll may appear to present aVOIdable obstacles to the development of International air navigation". There is a very close IInk between the ICAO Councii and Secretary General because the Council has to appOInt a Secretary General who 15 a "chief executive officer,,171 and shall "determine the method of appOlntment" and "conditions of [his] services". 172 The ICAO Secretanat, whlch IS governed by Chapter XI (Article 58-60) of the Convention. "shall not seek or recelve Instructions in regard to the discharge of [his] responsibllities fram any authonty external to the Organization". Thus the Secretariat General and the staff of the Secretanat are independent and impartial International civil servants Implementing thelr duties under the policy guidance of the Council. b) that ail parties co-operate in the Investigation.173 Pursuant to the Council's directions invitlng "ail parties to co-operate in the investigation", the Assembly established an investigation team. The Team was joined by the Representative of both parties, Iran and the United States 174 ln tact. the ICAO Council's decisions are, tor lIali parties" concerned, morally 171 Anicle 54(h) of the Chicago Convention. 172An. 58 of the Chicago Convention. 173See supra note 103 at Item 7. 174See ICAO InvestigatIOn Report at p. 2. Legal Aspects of the IR655 Tragedy Page 59 bindlng 175. ThiS binding value is understood first fram the wording of the Council's decislons and second, it cornes from the principle of co-operation in the Convention. The Convention of International Civil aviation is "subject to ratification by the slgnatory States"176 and when a state ratifies the Convention, it, in fact, recognizes the power of the Assembly and the Council, and has to implement according to the Convention and the Council's Resolutions. This conclusion follows fram the axlom of the international law of treaties "pacta sunt servanda" which is codified in Article 26 of the Vienna Convention on the law of the treaties of 1969; that Article also emphaslzed the princlple of "good faith" in the implementatlon of treaty obligations. The Convention, in its Preamble expresses its deslre ''to promote [ ... ] co-operation between nations". If aState refused to co- operate with other States, and failed to comply with the ICAO Provisions, it would not be entitle to enjoy the co-operation of other contracting States. c) that the ANC should review the Safety Recommendations of the ICAO Investigation Report. 177 The ICAO Council addressed itself to the ANC. This action of the Council denves fram the Provisions of the Chicago Convention. The Convention expressly 1751n KAL 007 Incident, ICAO Councii deplored that the USSR falled ta partlclpate ln the search and rescue attempts of other Involved States, ta provlde Information for the Secunty Councii and ta co-operate wrth the ICAO Investigation Team. See G.F.Fltz Gerland,"The Use of Force Agalnst CIvil Alrcraft; The Aftermath of the KAL 007 Incident", 1984 Can.Y.lnt'I.L. 291 at 291- 311 176Art. 91 of the ChIcago Conventton. 177 See supra note 144 Item 8. Legal Aspects of the IR655 Tragedy Page 60 provides for the establishment of an Air Navigation Commission by the Council178 and defines its duties which ail are related to the technical aspects of international civil aviation. Article 57 of the Convention states that the ANC shall, inter alia, IIconsider, and recommend to the Councii for adoption, modification of the Annexes to this Convention" and finally It states that the ANC shall "[a]dvlce the Council". Legal ground for adoption and amendment of the Annexes IS set out in Articles 37, 38,54(e) and 90 which involve both the ICAO Council and the Air Navigation Commission. 178Art. 54(e) of the Chicago Convention. Legal Aspects of the IR655 Tragedy Page 61 Chapter 4: Relevance of the NOTAM in the USS Vincennes' case 4.1) NOTAM issued by the FAA Followlng the USS Stark Incident (in which the USS Stark was damaged by Iraqi Exocet missiles launched fram a location beyond the protective radius of the U.S. warnlng) a NOTAM Class 1 was issued in September 1987 by U.S. FAA to make It known that United States warships in the area were taking additional defenslve safeguards. The notice stated that ail aircraft flying in the area (including flxed wlng and hehcopters) should keep listening to 121.5 MHzfrequency and that unidentified alrcraft whose intentions were ambiguous or who were flying toward United .:>tates warshlps would be contacted on these frequencies and required to Identify themselves and state thelr intentions.179 It also stated that: "[I]n nrder to avoid inadvertent confrontation alrcraft may be requested to remain weil clear of United States warships. Failure ta respond ta requests for identification and indication of intentions, or ta warmngs, or operating in a threatening manner could place the alrcraft at nsk by United States defensive measures. Furthermore, illumination of a United States warship with a weapon's fire control radar would be vlewed with suspicion and could result in immediate defenslve reaction. These measures would be implemented in a manner that would not unduly interfere with the freedom of navigation and overflight". The content of the NOTAM was also included in subsequent issues of the United States International Notices ta Airmen publication, and was current on July 3, 1988.180 1791CAO InvestigatIOn report at p.11. 180ld at p.10. Legal Aspects of the IR655 Tragedv Page62 It will be recalled that in early 1984 the United States had issueu " r. '1tice that naval forces in the Persian Gulf, the Strait of Hormuz. the Gulf of Oman and the Arabian Sea (north of 20 degrees north) were taking defenslve precautions. However, this notice was significantly different tram the 1987 NOTAM. The apparent final defensive zone for aircraft foreseen ln the 1984 NOT AM was the area described by a circle with a radius of tive nautlcal miles, extendlng 2000 feet into the air 1 while the 1987 NOT AM no longer speclfied any normal defensive zone. 181 4.2)Pre-conditions and Recommended Practices Concerning NOTAM 4.2.1 )Annex 15 Annex 15 of Convention on International Civil Aviation deals with Aeronautical Information International Services. Its tirst requirements were adopted by the ANC as a result of recommendations of a Regional Air Navigation Meeting They were published by authority of the ICAO Council as Procedures for International Notice to Airman (NOTAM) in January 1947. It was revised several tlmes and became applicable on 1 April 1954. 182 A NOTAM, whlch "shall be prepared ln conformlty 1811d. The reader should note ln passlng that the NOTAM was dlstnbuted through officiai CIVil and mllrtary channels and also through U.S, Embassles ln the area. Id at p.11 182See Id. at Histoncal Background. Legal Aspects of the IR655 Tragedy Page 63 wlth the relevant provisions of the Convention"183 according to the chapter 2 of Annex 1 5 to the Convention on International Civil Aviation, is defined in the following terms; Il A notice dlstributed by means of telecommunication containing information concernlng the establishment, condition or change in any aeronautical facility, service, procedure or hazard, the timely knowledge of which 15 essentlal to personnel concerned with flight operations." 184 Annex 15 deflnes two fundamental matters which were required as pre- conditions ln provlding aeronautical information services: the first is that the contractlng state Issuing the information possess a thorough understanding of precisely what the user needs to know, and the second is that the user (aeronautlcallnformation services of another state) of those data be assured of recelvlng ail the available aeronautical information necessary ta ensure the safety, regulanty or efflclency of air navigation when it is needed. 185 The Annex also mentions that the Information must be related to the contracting state which Issued it, otherwlse that state will have to clearly indicate that it is published for and on behalf of another state and under the authority of that other State, and the State concerned shall remain responsible for the information published.186 183'd at 5 3.4 184ICAO International Standards and Recommended Practlces; "Aeronautlcal InformatIon Services' Annex 15 to the ConventIon on International Civil AViation, 8th ed. July 1991, Chapter 2. 185 Id at 3.1.3. 186Id at 3.1.1. Legal Aspects of the IR655 Tragedy Page 64 Article 3.2.1 states the followlng; "Each contracting State shall take ail reasonable measures to ensure that the information it provides relating to ItS own terntory IS adequate, accurate and timely ... " And, so as to check its accuracy and to ensure that ail necessary information has been included in the NOTAM, the state must venty that information and act in co-ordination with the services concerned pnor to distribution 187 Annex 15 unambiguously states that thls information shall be bnef but comprehensive in expression,188 and be made available ln a usable arrangement. Article 3.2.4.1 of annex 15 says; "Material to be issued as part of the integrated aeronautical information package shall be thoroughly checked and co-ordlnated by the responsible services before It is submitted to the aeronautical information service, in order to make certain that ail necessary information has been included and that it is correct ln detall pnor to distribution. 1I Chapter 5 of Annex 15 deals with the ongins, general specification and distribution of the NOTAM. "Temporary nature" and "short durationll are two important elements indicated in the first Article of Chapter 5. That Article states that: liA NOTAM shall be originated and Issued promptly whenever the Information to be disseminated IS of a temporary nature and of a short duratlon or when operationally significant permanent changes, or temporary changes of long 187Id. at 3.2.4.1. 188'd at Section 5.2.2. Legal Aspects of the IR655 Tra.::o.g=ed::;.jy'---______---'P~a::.o:g:l!:e~6~5 duration are made at short notlce."189 For example NOTAM information might Include advlce that a certain airspace will be temporarily closed. The two most important matters, which are relevant in the present case, presence of hazard and discontinuance, are enumerated in section 5.1.1.1 of Annex 15. It states; liA NOTAM shall be origlnated and issued whenever the following Information is of direct operational significance: inter alia; -Presence of hazards which affect air navigation (including obstacles, mlhtary exerClses, displays, races, major parachutlng events outside promulgated sltes)",and; -/lestablishment or discontinuance (including activation or de activation) as applicable, or changes in the status of prohibited, restricted or danger areas". 4.2.2)The Third Middle East Regional Air Navigation Recommendation 190 At the Third Middle East Regional Air Navigation Meeting in April 1984 , The view of the users was that the Middle East region was one of the most 189/d at Section 5.1.1. 190'Vlewod as a unit-as they must be for a proper understanding of the OrganizatlOn's regulatory actlvltles- ICAO Annexes, PANS, and SARPS together make up an Integrated international air navigation code. This code IS supplemented by the Regional Air Navigation Plans, whlch are ICAO Councii recommendatlOns setting out the reqUirements for adequate air navigation facllîtles and services ln the ",ne SIr navigatIOn reglons estabhshed by the organlzatlon These plans are formulated at the respectIve Regional Air NaVigation Meetings, and are approved by the Councii under Article 69 of the Convention. [ ... ] It IS thus readily apparent that the ICAO Annexes, PANS, SUPPS, and RegIonal Air Navigation Plans constrtute an Integrated body of aViatIOn leglslatlon comparable both ln structure and content to comprehenSIVe domestlc air navIgation codes.' See supra note 83 at pp.119 120. Legal Aspects of the IR655 Tragedy Page66 crowded, restrictive and dangerous areas in the world and that there was a great risk of serious air traffic accidents in certain parts of the area. The Meeting recommended, inter alia, that the States. in order to achieve the optimum jOint use of airspace with the most favourable conditions with safety. regulanty and efficiency of international civil air traffic should "refrain, to the extent possible, trom establishing prohibited, restricted or danger are as bearing ln mind that prohlbited areas or restricted areas may only be established over the territones of astate and not over international waters.'1191 4.2.3lMeeting in the European Office of ICAO Pursuant to the ICAO Council's decision taken at its Extraordinary Session held on July 13 and 14, 1988 and at the invitation of the president of the Council in November 1987, an informai Meeting was convened in the European Office of ICAO to discuss the provision of air traffic services on ATS route A59. The Meeting considered the NOTAM promulgated by the U.S. in the Persian Gulf area and stated that the United States had violated approved ICAO Standards and Recommended Practices. The Meeting stressed that only appropnate ATS authorities of the states which provide services in the FIAs concerned and ln the adjacent airspace over the high seas are eligible to promulgate aeronautical 191 ,CAO Doc. 9434 MID/3 Report of the Third Middle East Regional Meeting, Montreal 27 March-13 April 1984. Legal Aspects of the IR655 Tragedy Page 67 information and air traftic services in both above mentioned areas, and that these services are to be in conformity with relevant ICAO provisions and the air navigation plan of ICAO. In conclusion, the Meeting emphasized that the promulgation of a NOTAM by the U.S. Federal AViation Administration was the main reason for the problems caused ln the Persian Gulf area, and requested tt"lat the ICAO Council "take appropriate measures to secure the withdrawal of the referenced NOTAM".192 4.3) Violation of Standard and Recommended Practices The adoption of International Standard and Recommended Practices and Procedures (SARPs) is the most important legislative function of ICAO, and its authority to adopt them originated from Art.37 of the Convention which states: "Each contracting State undertakes to collaborate in securing the highest practicable degree ot uniformity in regulations, standards, procedures, and organizatlon in relation to aircraft, personnel, alrways and auxiliary services in ail matters in which such unitormity will facilitate and improve air navigation. To this end the International Civil Aviation Organization shall adopt and amend trom time to time, as may be necessary, International Standards and Recommended Practices and Procedures dealing with, inter aliB, rules of the air and air traffic control practices. 1I ICAO deslgnates these SARPs as Annexes to the Convention. There are 18 such Annexes which have been promulgated by ICAO up to now. In the practice 1925ee supra note 128 Items 2.3.4 and 2.3.7. Legal Aspects of the IR655 Tragedy of ICAO, a standard, ln relation to air navigation matters, IS deflned as follows. "Any specification for physlcal characteristlcs, configuration, matenal, performance, personnel or procedure, the unlform apfJlicatlon of whlch IS recognized as necessary for the safety or regulanty of International air navigation and to whlch Contractlng States will conform ln accordance with the ConventIOn, ln the event of impossibility of compllance, notification to the Council IS compulsory under Article 38 [of the ConventIOn] ,,193 As we see being "necessary" and its "blndlng nature" are two important characteristlcs of an ICAO Standards "Recommended Practlces" ln relation ta air navigation matters IS deflned in Annex 15 as follows' "Any specification for physical characteristlcs, configuration, matenal, performance, personnel, or procedure, the unlform application of which is recognized as desirable in the Interest of safety, regulanty, or efflclency of International air navigation, and to whlch Contractlng States will endeavour to conform in accordance with the convention" Recommended Practices are regarded as desirable, but there IS no legal obligation to comply wlth the provisions of an Annex unless States flnd It practicable The ICAO Councll, however, has requested 194 that member States notify the Organization immediately if the State finds "It Impractlcable to comply ln ail respects with any su ch International standard or procedure, or to brlng ItS own regulatlon or practice into full accord wlth any International standard or procedure after amendment of the latter, or whlch deems It necessary to adopt regulatlons or practlces dlffenng in any partlcular respect fram those establlshed by an international standard". The obligation that States have assumed ln Article 37 of 1935ee Annex 15 at Foreword 1945ee Art. 38 of the ChIcago ConventIOn. Legal Aspects of the IR655 Tragedy Page 69 the Convention merely consists of an undertaking ''ta collaborate in securing the hlghest practlcable degree of uniformlty in regulations, standards, procedures, and organlzatlon ln relation to alrcraft, personneL .. " Article 38 Indlcates that the contracting States have retained the right ta de part fram the provision of an eXlsting standards any time they decide to do sa, provided that they notify the organization accordingly.195 There are exceptions for these freedom of depart'Jre from ICAO Standards and Recommended Practices (i.e. Article 12 of the Convention lays down the most Important pnnclple of the ICAO Standards and Recommended Practices). This Article reads. "Each contractlng State undertakes ta adopt measures ta Insure that every aircraft [ ... ] shall comply with the rules and regulations relating ta the flight. [ ... ] Over the hlgh seas, the rules in force shall be those established under this Convention [ .. l". Article 12 indicates that acting according to these ru les is mandatory. The "ru les" mentioned in Article 12 refer to the ru les relating to the fhght and manoeuvre of aircraft which the Organization has been authorized ta estabhsh Article 37 of the Convention empowers the Organization to adopt International Standards and Recommended Practices, inter alia, "with rules of the air". So International standards can be the "rules [ ... ] established under this ConventIon" wlthln the meaning of Article 12. 196 ln its debate over the adoption 1955ee supra note 83 at pp.5B-BB. 1965ee supra note 83 at p. 80, Professor Onon contend that "the reference is to international standard as weil as to recommended practlces.· However, Annex 2 contalns only Standards and no Recommended Practices. Legal Aspects of the IR655 Tragedy Page 70 • of Annex 2 related to Article 12 the ICAO Council agreed that this provision should be applied to any rules relating to the fhght regardless of the Annex in which these rules were contained.197 This question was consldered by the Councii ln 1950. The Chief of the ICAO Legal Bureau said that "a careful study of the Convention had convinced the Legal Bureau ... that 'the rules and regulations relatlng to flight and manoeuvre of aircraft' were any rules that the Council deslgnated as such and were not limited to the Rules of the Air as set out in Annex 2".198 If we accept the validity of this view, the standards of Annex 15 are equally mandatory and every state has to follow them. When ICAO, a specialized agency of the United Nations, makes a bindlng determination on the legality of an action or situation, the State concemed has the obligation to ablde by this ruling. However, the consequence of a determinatlon of "illegality" will be recognition of the aet, its legal"nullity". A team of ICAO experts expressed its belief, after analysis of the situation, that the promulgation of the NOTAM was not in conformity with the provisions of ICAO Annex 15. The U.S. Federal Aviation Authorities had issued a NOTAM in an area whlch was within the responsibility of the International NOTAM Offlce199 for Abu Dhabi, Baghdad. 197/d. at 83. 198/d. 199ICAO Investigation Report at p. 11; International NOTAM Offices have been designated ln accordance wrth ICAO Provisions for the International exchange of NOTAMs. Each International Office is responsible for an area whlch has been determlned by contracung States and ln accordance with ICAO provisions. h~131Aspects of the IR655 Tragedy Page 71 Bahraln. Bambay. Karachi. Kuwalt. Muscat and Teheran. The ICAO Investigation te am stated that. "The full Implications of the rules of engagement of the United States warshlps were not sufflclently reflected ln the notice promulgated by the United States It was not specified what was considered to be "operatlng ln a threatenlng manner". what distance was considered "weil clear of United States warships". and what was meant with "cou Id place the alrcraft at nsk by United States defensive measures" The safety nsks Imposed by the presence of naval forces ln the Gulf area to cIvil aViation may have been underestimated. in partlcular as cIvil alrcraft operated on promulgated tracks Including standard approach and departure routes from airports in the area ,,200 It IS to be regretted that the ICAO report stops short of the most important legal argument based on Article 1 of the Chicago Convention which is declaratory of general Internatlonallaw ln its recognition of complete and exclusive soverelgnty over the national air space Therefore NOTAM. Issued by the U.S authonties, purported to apply ln the soverelgn airspace of Iran IS in flagrant violation of the pnnclples of general International law. 2OOICAO Councii Report at p.11. Legal Aspects of the IR655 Tragedy Page 72 Chapter 5: SeH-Defense 5.1 )Use of Force as Self-Defence in International Law An international convention, because of Its blndlng force between ail slgnatories, stands as the basIc source of International law The Cr.arter of the United Nations 15 an International convention whlch upholds as an Important pnnclple the restnctlon of the use of force by ItS members The U N Charter provldes that "[a]1I Members shall refrain ln thelr International relations trom the threat or use of force agalnst the territortal Integrity or pohtlcal Independence of any State, 01 ln any other manner InconSISÎ.t.mt wlth the purposes of the United 201 Natlons" . However, at Article 51, the Charter states that thp remalnlng provIsion of the Charter, Includlng Article 2 para 4, Will not dlmlnlsh the Inherent nght of self aefence agalnst armed attack. It reads as follows; "Nothing ln the present Charter shall Impair the Inherent nght of Indlvldual or collective self-defenee If an armed attack occurs agalnst a member of the United Nations, untll the Seeunty Courlcil has taken the measures neeessary to malntaln International peace and secunty Measures taken by Members ln the exercise of thls nght of self-defence shall be immediately reported to the Security Councii and shall not ln any way affect the 201 U.N. Charter Art.2 para.4 Legal Aspects of the IR655 Tragedy Page 73 authority and responsibillty of the Security Council202 under the present Charter to take at any time such action as it deems necessary in order to maintain or resort international peace and security". A stnct Interpretation of Art.51 and Art. 2, paragraph 3 which orders member states to settle thelr disputes by peaceful means without endangering Intl9rnatlonal peace leads us to conclude that an armed attack is a condition precedent to the lawful use of force in self-defence.203 Custom IS a second major source of international law. It requires the exist,ence of twa elements: first, a well-established practice among states and second, a shared feeling in the international community that this practice can be consIC1ered as law.204 Similar to international conventions on the subject, customary international law provides that a nation's use of self-defense is limited by the requirements of 202Professor Wnght argued that the Unrted States quarantlne of Cuba ln October 1962 ta prevent th(~ dehvery of nuclear missiles Into Cuba from the Soviet Union was an unlawful exerclse of the ngh\ of seH-defence beeause, mter alia, "the Unrted States has [not] hved up ta its legal obligation [ .. ] to submrt threats to the peaee ta the Unrted Nations before taklng unilateral action'. See, Q.Wn~lht, 'The Cuban Quarantlne', [1963 57] Am. J. Int'l. L. at 546-560, See also mfra note 203 203See; G.M.MeCarthy, 'lImrtatlOn on the Right to Use Force Agalnst CIvil Aenallntruders, The Destruction of KAL Flight 007 ln Communrty Perspective'; [FaU 1984, V.6] N.V.L. Sch.J. Int'I & Comp L at P 186 'Resort to the use of force ln self-defenee was narrowly limlted ta an armed attack as a preeondltlOn because the Charter was Interpreted as provldlng a meehanlsm for the peaceful settlemenl of dispute Art.33 reqUires the parties to a dispute ta seek a solution by peaceful means'. 204Recently some authors have stated 'sorne doubt whether state practlce 15 not enough and the opm/O jUflS can be neglected'. Sorne state practlces are based only on polrtical consideration. See, R Bernhardt, Customary International Law, Encyclopedla of Public International Law; supra note 219 at p 62. Legal Aspects of the IR655 Tragedy Page 74 "necessityll and IIproportionality". This means that there must eXlst an actual taklng over of the right of the defender and a failure on the part of the Infnnglng state ta cease Its offensive actions.205 ln the next chapter, we will examine a question related tf) the concept of "necessity", i.e. the length of time durrng whlch a nation vlctlm of aggresslon can legitimately use force as a self-defence. There are sorne slmilarrties in thls respect between the norms set forth ln the U.N. Charter and those contained ln customary law 206 A great maJorrty of internationallawyers holds that Article 2, paragraph 4 on the threat or use of force, with other provisions of the UN Charter, IS a declaratory statement of the modern customary law. This problem was dealt with by the ICJ in ttle Nicaragua Case The Court stated that the princlple of the non-use of force expressed ln Article 2 paragraph 4 is both a principle of customary International law and a fundamental principle of the Charter.207 205See supra note 203 at pp 187-191. 206See J.Mrazek mfra note 237 at 85-89. 207/d at 86. Legal Aspects of the IR655 Tragedy Page 75 5. 2) The Temporal Elements in Self-Defene. The IR655 tragedy occurred during the eight year war between Iran and Iraq. On the day of the incident, according ta U.S DOD Repo~. the USS Vincennes Interpreted the presence of armed Iranian speedboats nearby as a demonstratlon of hostile Intent, and consequently, it opened fire on them, sinking two boats and causing much damage to others. The U.S warship then fired on an Irnnian commercial alrplane believing it to be an Iranian mihtary aircra~. Given the prevlous "attack" by an Iranian speedboat, how long afterwards could the Vmcennes invoke the "self-defence" argument, since its commanders were aware of the flight schedules for commercial airliners passing above the Persian Gulf? Once the emergency of an armed attack has ended, a victim of il/egal aggression should seek a peaceful settlement of the dispute. In fact it has been suggested by some authors that the Idea of self-defence contains a temporal element,210 in which a response must be made shortly after an attack or imminent threat. When respondlng ta an attack or imminent threat, the victim must refrain from aggression against other targets allegedly involved in an aggressions. Measures taken in self-defence should not go beyond the scope of the 208000 Report at E7. 209U.S letter ta the U.N. Securrty Council, July 6, 1988, See DOS Bulletin,Sept. 88 at p.38. 21 00 .Schachter, "in Defense of International Rules on The Use of Force'; [1986 Vol.53] U. CHI. L. REV. 113 note 94 at 132 Legal Aspects of the IR655 Tragedy Page7~ aggression, I.e. there must be some "proportlonality" ln the vlctlm's purpose The United Nations Security Councll quahfled defenslve actions that exceeded the provocation suffered as illegal retahatlon Instead of legltlmate selt defence.211 One could also construe the principle of self-defence as only belng avallable to a nation until the Council has taken appropnate measures to malntaln International peace and security. (Note that according to Article 51 of the UN Charter, self- defence measures have to be reported Immedlately to the Councll, whlch reserves Its rights to take any action to preserve International peace and secunty.) 5.3)A Prior Aeriallncident One serious incident involving loss of life occurred on Feb 21, 1973 A Libyan Boeing 727 devlated from ItS course because of sand storm and entered a prohlbited military zone over the occupled Sinai Penlnsula When It flew over the Israeli mihtary air base of Bir Gafgafa an Israell interceptor shot the alrhner down and ail 108 persans on board dled as a resuli12 ln considering this incident, one must remember the clrcumstances ln whlch it occurred: -A state of war existed between Israel and its Arab ne~.ghbours, and there 211/d 212See KHallbronner, Toplcal Problems of International AViation Law, 1973 Law and State, InstJtute for SClentlflc Co-operation Tublngen, Landhausstr, Federal Repubhc of Gerrnany, at 96,99. Legal Aspects of the IR655 Tragedy Pagen was senous concern that an Arab alrcraft entering Israeli airspace over the Sinai Penlnsula could have do ne so wlth hostile Intent.213 -The Israel! Jet flghter pilots clalmed that they used IIhand li signais to instruct the alrcraft pilot to land, but that using a hand signal, he signifled his refusai to comply wlth thelr request The Israel!s then flred several warnlng shots in his direction before flnally openlng flre on the Llbyan alrcraft 214 -Israel argued that the Llbyan alrliner had violated Its alrspace and the Israel! Mlnlster of Transport stated that hls country's actions respected the pnnclple of Internatlonallaw and were only taken after senous consideration. The Egyptlan CIvil AViation Mlnlster, supported by an Egyptlan air trafflc controller, rebutted Israeli argument and vlgorously denounced their actlons.215 International public opinion criticized Israel. In this incident the Council of ICAO passed a Resolution strongly condemnlng the Israeli action, whlch it bel!eved constltuted a senous danger agalnst the safety of international civil aViation 216 The Councii also underlined that Israel had flagrantly vlolated the pnnclples enshnned in the Chicago Conventlon.217 The ICAO Assembly 215See supra note 203 at pp 196-198. 216From ICAO News Aelease of June 1973; See also I.A.Vlasic supra note 45 at p.291 The Council ln th,s case: 'Strongly condemns the Israel! action whlch resulted in the destruction of the Llbyan civil alrcraft and the 1055 of 108 Innocent lives.' 217/d Legal Aspects of the 1R655 Tragedy adopted a resolutlon condemnlng Israel whlch was carried by a margln of 1 05 votes ta one with the single "No" vote cast by Israel The votes condemnlng Israel Included those of the Western States, as weil as those of Eastern bloc 218 countnes . 5.4rReasonableness" in Self-Defense ln ail legal systems, persans are allowed to proteet themselves by uSlng force, if thelr lives or property are belng senously threatened The extent ta whlch this Individual right of self-defence IS recognlzed vanes tram one legal system ta 219 another. A persan who is the victlm of an attaek, even If he has commltted no wrongdoing, may defend hlmself. Some wnters beheve that the persan attacked must not use force if there is another way ta repel the offender, unless the victim is ln hls own home 220 Wh en Justlfymg hls action, the vlctlm must show that he did not commit a fault which led ta hls belng attacked Hawever, we must ask how far a persan can be justlfled ln uSlng force What can be considered as a "reasonable" use of force under the law? European and Amencan 218See supra note 203 at pp 192-196 219rhls nght depends on the centralizatlOn of law ln the legal systerns See,B 0 Bryde Self Defence, VA Encyclopedla of Public International Law, 1982 Publlshed undor the Auspice of ttle Max Planack Instltute. [Instalment 4 p.212] 22Dwhlle ln others' opinIOn a vlctlm can defend wrth deadly force If he has strong reason ta beheve he 18 belng attacked See; I.J Sioan, The Law of Selt-Defense, Legal and Ethlc~lJmQr~!pJQ~, London, Rome, New york. Ocean Publication, 1987 at p 7 Legal Aspects of the IR655 Tragedy Page 79 authors view the concept of "reasonableness" in different ways. For Americans, the vOlce of reason has become the spint of tolerance.221 Technically, the defendant must reasonably beheve both that he was going to be killed and that It was necessary to respond with deadly force. The tenants of this view refer to it as the subJectlVe222 theory, slnce they believe the legal decislon should excluslvely depend on the defendant's subjective state of mind at the moment of Incident. The statutory standard of "reasonable belief' does not depend on the defendant's subjective belief but rather on what a reasonable person would have beheved had he been in the defendant's position. In sorne cases U.S. Courts have reJected clalms of self-defense because of the absence of a "reasonable , 223 224 behef . The leading case for the prosecution is People V. Coll ice , in whlch the Supreme Court of New York summanly affirmed the conviction and held 2210thers have a dlfferent Vlew, See G.P.A. Fletcher A Crime of Self-Defense, New York: The Free Press, A DIVISion of Macmillan, 1988 at P.40. 222Thls theory tlrst made Ils appearance ln 1981 to slip Into the declslon of the New York Appellate DIVISion (In Albama thls Court stands between the tnal DIVISion of the Supreme Court and Court of Appeals) See, for example "People V Gonzale:!". Other lawyers support the Objective Theory, whlch deflnes the standard for 'reasonable action" as an objective standard set by an act of a reasonable person under the clrcumstances. See Id. at pp.41-42. 223For Instance the objective standard caused the grand JUry to reJect Goetz's cial m, ln People V Goeez, (131 mlsc,2d 1,5 (1986),185 NE 2d 912,233 NYS 2d 476, Appellate DIvIsion) of self-defense as unreasonable and remforced ttle prosecutlon's chance of secunng a conviction for attelllpted rnurder, See supra note 221 at P 44. 22441 NY 2d 906, 1977, NY, 394 NYS 2d 615; 393 NE 2d 340 Appellant DIVISion; ln thls case the defendant clalmed self-defense, presumably on the ground that the complalnant put hlm ln fear of Imminent aggresslon by followlng hlm home. See also supra notes 220 and 221 at pp. 51- 52 Legal Aspects of tlle IR655 Tragedy Page80 that evidence did not warrant a charge. It stated. "Even if the defendant had actually believed that he had been threatened with the Imminent use of deaoly physlcal force, and there is no evidence that he had so believed, hls reactlons were not those of a reasonable man acting ln self-defense [.] [t]he defendant's conduct could not be reasonably perceived to have been useful ln evading danger, let alone "necessary to defend hlmselt" " Although the U.S. view of the concept does not reflect a general opinion on the question of "reasonableness", It IS relevant to our study of the case at hand ln the IR655 case, the USS Vincennes' commander, after hls personnel submltted different argument as ta whether the plane was a commercial Jethner or an Iranlan military alrcraft, took the final decision and ordered it be shot down. Two questions come to mind: Flrst, did the USS Vmcennes's commander have a vahd clalm and factual basis to support hls defence, and second, who IS entitled ta declde If the action taken by the commander can be justified as an act of self-defence? 5.5) A valid Claim in the Incident On July 3, 1988, shortly after the IR655 incident happened, President Reagan stated that the USS Vincennes had followed standing orders and elaborate procedures, and had only flred ta protect Itself agalnst a possible attack.225 On July 13, 1988 AssIstant Secretary Wllliamson, ln explalnlng the general background of the sItuatIon before the ICAO Counc/', stated, mler all8, 225U.S. DOS Bulletin. Sept. 1988 at P.38. Legal Aspects of the IR655 Tragedy Page 81 that this tragedy had occurred in the context of the continuing war between Iran and Iraq. On the day of the Incident, he then added, the Vincennes and another U.S. naval vessel approached the group of Iranian boats that had fired upon a U.S hellcopter, and the captaln of the Vincennes decided to defend himself and the men under hls command.226 It seems that the first question one has to answer is whether the above mentioned claims can be justified as examples of "reasonable bellef' or ''valid clalms". Thi',; questlcn arises only if the USS Vmcennes' personnel were not aware that the aircraft flylng overhead was in fact a commercial Jethner. (Otherwise they could not validly use the self-defence argument in Justitying their actions). ln some cases, personnel who were responsible for such kind of attacks were deemed to have exercised force in a negligent mar.ner.227 Negligsnce of the state in preventlng unlawful international acts has been an important concept ln relation to the question of neutrahty in time of maritime warfare. As we will see, in the Dogger Bank Incident, the Commission of Inquiry followed the rule that the eXistence of a mistake would not free the wrongdoer from hability.228 One can draw important parallels between the IR655 incident and maritime cases in which belligerent authority and neutral rights have been recognized and 226/d at PP.38-41. 227 See D.A.Ewlng; "The Downing of Iran Air FIIght 655, Highhghtlng the Need for International Adjudication of Damages·, spnng 1990, Suffolk Tran.L.J. 656 at p.685. 226See 1 G. Schwarzenberger, International Law as Applied by International Cour. and Tnbunals VoJ.1 London. Stevens 1957 at 639. Legal Aspects of the IR655 Tragedy Page 82 discussed at length by authors. One notable incident of misapprehension of attack ln the naval context which is most relevant to an assessment of the fhght 655 Incident IS the 1986 229 Nicaragua V. United States . On April 9,1984, Nicaragua alleged numerous violations by the United States of both general International and treaty law ln addition to the mlning of ports, there were ten unlawful acts wlth whlch Nicaragua charged the United State. Here are some of the alleged acts -8 September 1983. an attack was made on Sandino International Alrport in Managua by a Cess na aircraft, whlch the Nicaragua Army shot down; -13 September 1983: an underwater oil pipeline and part of the 011 terminai at Puerto Sandino were blown up; -2 October 1983: an attack was made on oil storage facllities at Benjamin Zeleden on the Atlantic coast, causing the loss of a large quantlty of fuel, -10 October 1983: an attack was made by air and sea on the port of Connto, involving the destruction of flve oil storage tanks, the loss of millions of gallons of fuel, and the evacuatlon of much of the local population, -14 October 1983: the underwater oil pipeline at Puerto Sandino was agaln blow up; -4/5 January 1984: an attack was made by 7Eeedboats and hellcopters uSlng 2 rockets against the Potosi Naval Base ; ln this case, the International Court of Justice found that the United States had violated several tenets of customary International law by Its actlvltles ln and 229N/car vUS; 1986 I.C.J. 70 (Judgement on ments of June 27). 230Mlhtary and Paramllrtary A ct IVIt1 es ln and Agalnst Nicaragua (N/car vUS J, 19861.C.J 70, para.1. Legal Aspects of the IR655 Tragedy Page 83 231 against Nlcaragua . If we compare the declarations made by United States Secretary of State Shultz in thls Incident with those made ln the IR655 incident, there are a number of simllantles. Shultz filad an affidavit with the Court wherein he declared; "The United States has abundant eVldence that the Government of Nicaragua has actively supported armed groups engaged in military 32 and paramllitary activities in and against El Salvadoi2 [ .•. ] The Government of Nicaragua also partlclpates directly in the procurement and transshipment through Nicaraguan territory, of large quantltles of ammunitlon, supplies and weapons for the armed groups conductlng mihtary and paramilitary activitles in and against El Salvador:233 ln Its decislon, the Court started by examining the U.S.' previous conduct ln the International arena, such as its support of the Resolution of the Sixth International Conference of American States condemning aggression as weil as ItS ratification of the Montevideo Convention on Rights and Duties of State. The Court also noted the United States' acceptance of the prohibition of the use of force ln the Conference on Secunty and Co-operation. In that case, participating nations agreed to refrain trom the threat or use of force in international relations. 231 See Z Modabber; 'Collective Self-Defence: Nicaragua v. United States', [1988 Vol. 1 0 No.2] loy L.A Int'! & Corn L.J. 456 at pp.449-460. 232Thls eonthet be/ween the U.S. and Nicaragua began when the President of Nicaragua was overthrown The United States government suspected that the Soviet Union supported the Sand,n,sta movement and rt ralsed the tear that the close dlplomatlc and economic lies the U.S. enjoyed wrth countnes ln Central Amenca were ln danger As a result, ~ openly supported the al1tl Sandlnlsta guernllas. Accordlng to the United States, NIcaragua provlded assistance to lettlSt guemllas ln El Salvador by funnelhng Soviet arms through rts ports and across its temtory 50 it threatened bath the government of El Salvador and the U.S. Interests ln the area. See Id. at 451 for background on th!s Incident 233See supra note 230 paras. 70,128. Legal Aspects of the IR655 Tragedv Page B4 The Court stated that these examples amounted to an acceptance on the part of the United States of a pnnciple of cLJstomary internationallaw, so the Court held the U.S. responsible for a violation of this princlple234 The correct interpretation of the idea of self-defence was conflrmed ln thls case. The I.C.J. did not accept the U.S. argument that It had exerclsed ItS Inherent right of individual and collective self-defence. The Court conflrmed the eXistence of the right of self-defence only ln the case of an armed attack that has already occurred.235 The Court stated that mere incidents and certain transborder incursion do not constitute armed attack. 236 50 the Court refused to accept a broad interpretation of self-defence and various Justification for the use of force.237 Another incident which seems to be crucial because of ItS relevance to an assessment of the IR655 incident is the Dogger Bank Dispute, between Great Britain and Russla (1904). The issue arose dunng the Russo-Japanese War On October 7, 1904, the second Russlan squadron of the Paclflc Fleet anchored with the purpose of coahng before contlnulng its voyage ta the Far East. From the time of departure, precautions had been taken by vessels ta be ready 234See supra note 231 at pp.458-459 235See supra note 230 at 70,110 236See supra note 230 at 87,93,103,127. 237See J.Mrazek, 'prohibition of the Use and Threat of Force; Self-Defence and Self-Help ln International Law', [Annua11989 V.27] Can.Y.B.lnt'l.L. 81 at pp 81-111, See also supra note 231. Legal Aspects of the IR655 Tragedy for possible attacks by Japanese torpedo boats, glven that numerous reports had been received fram the agents of the Imperial Government on the Imminent threat of such attacks. In addition the Commander of the Paclflc Fleet, Ad rlll rai Rojdestvensky, had been warned of the presence of SUSplCIOUS vessels on the coast of Norway. The commander of a transport shlp whlch was comlng fram the North informed him that he had spotted four torpedo boats carrylng a single hght on the previous night. The last vessel of the fleet had been required ta reduce its speed because of damage to Its engines. It then suddenly met same unknown vessels and opened fire on them. Its commander reported to Admirai ROJdestvensky that his ship was being attacked on ail sides by torpedo boats. This news and other information which he had heard caused the Commander-ln-Chief ta take even more care and to look out for an attack by torpedo boats. According to British witnesses, the squadron was slowly advancing, following its usual rules and the ships' lights were worklng properly but the nlght was dark and foggy. Suddenly the attention of the officer on watch on the bndge of one of the ll vessels was attracted by a green rocket which was sent up by the lIadmlral of the fishing fleet. Almost immediately after this flrst alarm, the lookout men scanned the horizon with their night glasses, but they saw no hght because a shlp appeared ta be bearing down upon them. Followlng that they recognlzed a torpedo boat proceeding at great speed. The Commander then ordered tire to be open on thls Legal Aspects of the IR655 Tragedy Page a6 unknown vessel At the same tlme, the lookout men noticed another suspicious vessel whlch presented the same features as did the object of their fire on starboard, so 11re was also opened on this second abject. The Commander -In- Chief, Admirai Rojdestvensky, Indicated the objects against which the flre should be directed by throwlng his searchhght upon them, but each vessel in the squadron also swept ItS own searchhghts along the horizon ta avoid belng taken by surpnse, leadlng to an erroneous conclusion. The Russian vessels did not reahze that the unidentified boat they had encountered were in fact only a flottila of British flshing vessels. The battleship fire lasted ten to twelve minutes. and as a result, two men were killed and six others wounded.238 The facts ln the Dogger Bank dispute resemble those in the IR6SS flight incident. In the former, there were torpedo attacks against the Russian squadron dunng her voyage and in the latter, Iranian boats were involved in surface action wlth US warships239. Also in the Dogger Bank dispute, the commander of the Russlan squadron could not confirm the presence of torpedo bORts in the vicinity of the Baltic fleet, whlle in the case of IR6SS, USS Vincennes personnel disagreed on the nature of the aircraft flylng overhead as it dealt with Iranian torpedo boats. Furthermore, the pattern of events following the incidents in both cases are quite 238See the Northsea or Dogger Bank Case between Great Britain and Russla, Findlng Report Feb. 26,1905, The Hague Court Reports, New York Oxford Umversity Press, pp.403-410. 239See ICAO Investigation Report at P.8. Legal Aspects of the IR655 Tragedy PageS? similar: On the one hand, the USS Vincennes clalmed ItS Innocence240 and the Iranian Government presented a demand before the ICAO Councii and the 1 C J , while on the other hand, Great Bntaln demanded of Russla an offiCiai apology, compensation, and punlshment of the offlcers responslble for the Incident Russla, however claimed that Japanese torpedo boats had been seen surfaclng ln the area and that ItS actions had been provoked and It refused to punlsh the offlcers (Note that in the Dogger Bank dispute an International Cùmmlssion of Inqulry was appointed and charged both wlth fact-findlng and determlning where the responslbility for the incident lay, and what was the degree of fault of the wrongdoers241 . The Commission found that the Russlan flee1's openlng of tire had not been justified. It held the Russlan Admirai responslble for what had happened)242. The views on self-defence as shawn ln the NIcaragua case and the Dogger Bank case may help ta better understand the Iran Air Flight 655 Incident since there are many slmilaritles between the facts of these events There IS no agreement, however, as to which clrcumstances may actually warrant the use of force in self-defence. There are different Interpretations of the nghts granted by the Charter of the United Nations and by customary International law tt;) proceed to 2405ee supra note 225. 241 The Commission sat ln Pans and consisted of one senior naval ottlcer each trom Great Britain, Aussia, the Unrted States, France and Austna. See P. Schneider, Dogger Bank Incident, Encvclopedla of Public International Law, supra note 219 V 10, p.131 242/d. Leqal Aspects of the IR655 Tragedy Page aa antlclpatory self-defense against an imminent danger of attack. A number of authors qualify anticlpatory self-defense as aggression. A.Verdross and B.Aimma suggest that the dlfterence between a "preventive war" and a "preventive defence" depends on the United Nations' deflnitlon of "aggression,,243; if astate starts to use mihtary activities, that state is the aggressor.244 5.6) A Third Party is Entnled to Evaluale the Self-Detence The second question, raised at the beginning of this section, was whether an individual has the nght to declde an immediate action to use force, or, if this evaluation should require the approval of others. The accu rate response is that wh en astate has to use force outside its borders, its conformity with the rules of internationallaw shall be judged by other states or international agencies who will examine the case and determine the kind of action to be taken for the purpose of self-defence245 because If astate claiming a right has the exclusive authority to decide on the lawfulness of its exercise, it will cause the law to vanish. The International Tribunal at Nuremberg in 1946 accepted this idea when 243rhls Idea has been confirmed by other authors such as a.Wright, N.Bentwich A. Martin and many othprs, See; J.Mrazek, supra note 237 at pp.81-111. 244'd 245 J.Stone, Legal Controls of International Conflict, Sydney: Malnland Publications 1959 at 243,244. Stone further contends that Article 51 provides that astate is not the sole ludge of ilS own action, but IS subject to revlew by the Secretary Council. Legal Aspects of the IR655 Tragedy Page 89 it refused to accept the argument of the Counsel for the Nazi Leaders that Germany had acted in self-defence and that every state IS the judge ta declde whether it has the right of self-defence.246 The Tnbunal stated that ''the nght of self-defence does not confer upon the state resortlng ta war the authonty ta make a final determinatlon upon the Justification for ItS action ,,247 Customary internationallaw, as weil, reJects the Idea that astate need only declare its own act as an act of self-defence for It to be consldered as "defenslve" in law. Self-serving, unilateral justifications are thus nelther in state practlce nor by international organizations. Therefore in the present case, the legltlmacy of the USS Vincennes' use of armed force in Iranian terntonal waters must be evaluated by other states or organizations. 5.7) Misfaken Self-Defence ln concluding this part of my study, 1should say that internatlonallawyers regard self-defence as a legal right defined and legltlmated by International law. Governments agree with it and they claim self-defence as thelr legal Justification when they use force, but its validity under law is open to evaluation ln each specific case. Use of force for preservation of the self has long been consldered 2460.Schachter; 'Self-Judging Self·Defence', [V.19 Spr.1987] Case W.Res.J.lnt'l L. at pp.121- 127. 247G.M.McGarthy; See supra note 203 at 192. Legal Aspects of the IR655 Tragedy Page 90 a natural nght of the state The U N Charter has reflected this Idea ln recognizing self-defence as an "Inherent nghtll248 Still no U.N resolutlon has approved the use of force ln any of the cases that 1 have already enumerated. There are a few cases ln whlch the action has been accepted as legal but the self-defence argument was reJected The maJority of cases alleged ta be lawful, has been 249 cntlclsed as contrary ta the UN Charter. In some cases , for instance in the Dogger Bank Case, the use of force wa5 se en as an incident ot mlstaken self defence, that 15 ml51nterpretatlon of events led to a mistaken understanding of the tacts by the commander of the ship whlch caused the incident. However, mistaken self-defence should not be considered as self-defence250 to justify the use of armed force because it lacks necessity251 which is one of the most significant elements of self-defence. 248See 0 Schachter; "Self-Defense and the Rule of Law" [April 1989 Vol.83] Am.J.lnt'1 L. 259 at pp 259- 277, The ICJ ln 1986 )udgement in the Nicaragua case stated that Article 51 of the UN Charter recogmzes a "natural" or 'mherent' nght of self-defence. 249/d al pp 271-272 250DKLlnnan, "Iran Air Fhght 655 and Beyond: Free Passage, Mistaken Self-Detence and State Responslblhty', [Vo1.16 nO.2 $ummer 1991] Y. J.lnt'I L. 245 at 339. The Greco-Bulganan Frontler Incident happened ln 1925 when Bulgarian territory was oecupled by Greeee. The Council of the League of Nations appolnted a commissIon of mqulry to determlne responsibihty for thls event The Commission stated that compensation should be pald even if the Greek mllitary's actions were premlsed on a mlstake. Id at 370. 251 See supra note 228 at 31. Legal Aspects of the IR655 Tragedy Page 91 Chapter 6: State Responsibility 6.1)The Concept of ResponsiblIIty The concept of state responslbility, and Its sources, is one of the most complex subjects in the general theory of international law. In 1979 The International Law Commission (ILC) adopted Article 19 of its Draft Articles on state responsibility and for the first time tried to determlne dutles and obligations of states, a violation of which would be considered to be an International cnme252 The word responsibility is used for the term Ilobhgatlon" Usually an obligation arises from a contract or when one violates the ru les of law It IS the violation of an international obligation, i.e. any act on the part of astate that breaks a ru le of internationallaw, which constitutes the unlAwful act and gives rise to International responsibility. The quality of the violation of international law depends on what IS in fact prohibited by the particular rule of international law, the type of Illegahty and the nature of the rules governing the incidence of responsibillty. There exists a basic rule that lIevery international wrongful act by astate glves rlse to international responsibility.1I253 If an act of astate causing in jury ta another state was 252See J.H.H.Weiler; International Crimes of Stale l A Cr:tlcal Analysis of the ILC's draft Article 19 of State Responslbllrty; Berlin, New York: Walter de Gruyter, (1989) at pp.1-3. See also Zemanek, 'Responslbility of State: General Pnnclple', supra note 219 Vol 10 at 362-372 253Mr. Ago, acting as Rapporteur of the International Law Comml~slon, formulated the 'basiC rule' under the rubnc "he mternatlonally wrongful act as a source of responslbl/rty' See, I.Brownlie; 'System of the Law of Nation', mfrB note 255 1 at 23. In the ludgement on the commltted wllfully and mallclously or ln a grossly negllgent manner, this would constltute Intentlonal dellnquency 254 6.2)The Proper RaIe of Fault (Qulpa) and Intention (dolus) InternatIonal obligations have different structures and impose their reqUirement on states ln dlfferent ways If a law establlshes that a state will not be held responslble for harm caused by rebel or by government forces countenng rebel's actlvlty unless there IS a fallure to exercise due diligence,255 50 there should not be InternatIonal responslbllity if it shows steady effort to refuse trom wrongful act and breach of obligation 'ne same IS true when the mere faiiure to comply wlth such obligations IS the result of "VIS maJor,.256 ln fact, in many SItuations no responslbllity WIll anse because there will be no proof of a lack of due diligence There IS some difflculty ln recognlzlng if the responsibility of astate anses ln a certain case because of the distinction between culpa (negllgence, C/lOrzow Factory the court sald: 'It IS a pnnclple of International law, and even a general conception of law, tllat any breactl of an engagement Involves an obligation to make reparatlon'. See m'ra note 258 a! 434 254Se,a L OppenhelrTl, International Law, A Treatlse, 7th ed. Vol.1 London, New York: Longrnans (1949, at p.311 255See 1 Brownlle, System of the Law of Nations, State responsibllltv, New York: Oxford UrllVerslty Press (1983) Part 1 at 172. 256See m'ra note 259 at 227, ThiS has conflrmed by Russlan mdemntty case (1912) whlch states 'The exception of VIS major, Invoked as the flrst IIne of defence, may be pleaded ln public International law as weil as ln pnvate law' Legal Aspects of the IR655 Tragedy tault) and do/us (Intent) wlthln the concept of wrongfulness257 When ttle relations of them are very close, the former one explalns the types of blan",e and It may have a slgnlflcant role ln a certain context 258 Tl1e tel m culpa (fnult) IS synonymous wlth "omission of duty,,259 and unlawful act ln fact fault as weil, IS ongln of respons,b'lity260, e.g. In the Jamalca case?61 Hle Cormllissioner stated that responslbllity must be based on a fault Imputable ta tl1e pel sail charged. The term do/us IS used ta descnbe an Intentlonal aet of an officiai to cause harm and wlth no regard at thls stage as ta whether or not the law perrnlts the act. 262 Therefore, responsiblhty ln International law requlres the eXistence of a fault, sa If the USS Vmcennes' commander dld commit a fault ln ordenng that IR655 be shot down, responslbihty shall be [mposed upon hlm accorcllng ta the above definltlon For the determlnat[on of responslbllity related ta an International unlawful act, there [S no need to prove that a person's act was commltted wllfully and mahclously, or with culpable negligence. 257Thls IS Grotlan vlew whlch certain emlnent opinions support Il says, Cu/pa alld dO/liS malus provldes the proper basls of state responslblllty ln ail cases Seo 1Brownlle, If/lm noto 250 at p.438 258See 1 Brownlle, Pnnclple of Public International Law, 4th ed, Clarendon Pres~, Oxford (1990) at p 440. 259See B Cheng, General Pnnclples of Law as Applled Qy Internatlqr.lal CQI-!.rJ~JlII~j TrltJl!n~I<;, Cambndge, Eng GrotiUS Publications, (1987) at p 218-225 260'd at 225, The declslon of the permanent Court of Arbltratlon StlOWS tha! "rfJault r.:onslst'i ln the Violation of an obligatIOn, g/vlng flse ta responslblllty". Such Violation has boen torrnmJ 'unlawful actA 261 1978,41nt Adj. M.S.P. 489 (Jay Treaty (Art/Gle VII Arb (1749), G B/U S) 262See supra note 258 at 441. Legal Aspects of the IR655 Tragedy Page 94 A persan IS said ta be negligent if he acts without taking due care and 263 attention wlth respect ta the harmful consequences of his action • In that sense, neghgence can be considered as the fallure ta perform obligation. In the IR655 case, are there any other grounds to consider that the USS Vincennes cou Id be held ta a standard of care? One is expected ta take due care wh en there eXlsts a foreseeable risk of harm. Foreseeability of risk is a necessary condition for blame and for the liability related ta a certain action. Foreseeability conslsts of the natural and probable consequences of one's actions. An example of thls IS a case ln whlch the harm caused arises fram an intentional action, i.e. where the wrangdoer had the desire ta cause certain consequences. Astate is responsible if its Intentlonal action caused harm even though it had unintended consequences. Any negltgent act will foreseeably have harmful effects. Therefore, everyone has the duty to act according ta the standard of care 50 as ta avoid 264 causlng harm . In the case of the USS Vincennes, the Court will evaluate which actions the ships's personnel should have taken ta avoid bringing about the damage. Modern forms of state responsibility are ditferent from those which eXlsted ln the past. Because of the scientific and technological advances which have drawn humanity towards new actlvities, states tend to disregard the idea lOf fault as a basic factor of the international wrangful action and do not seek to determlne whether their act is in fact wrongful. 'f one applies this reasoning tel the 263See J.C.Smrth, Llabllity ln Negligence, London: Carswell Legal Publication (1984) fit p.2. 264/d. at pp.130-135. =L~eg~a=I~A~s~'p~e~ct~s~0~f~th~e~I~R~6~5~5~T~ra~g~e~d~y~ ______page 95 case at hand, one must conclude that the USS Vincennes commltted an International wrongful act, since It falled to exerclse due diligence ta prevent causing harm to others,265 and more speclflcally falled to prevent the shootlng down of a ciVil aircraft. As 1 have already mentloned ln thls study. the Iraman Government, as the claimant, origlnally formulated the responslblilty of the United States for the IR655 incident ln the follo"ving terms. A)As a member of United Nations, the United States vlolated the sovereignty and territorial integnty of Iran, contrary to the recognlzed obligations emanating from the spirit of the United Nations Charter and the Chicago Convention, by posltlonlng the USS Vincennes ln the Iranian terntorial sea, and finng at a commercial alrcraft wlthln airspace of Iran. B)The United States imposed obstacles to the development and regular operation of civil air transport in the area of the Perslan Gulf C)The United States promulgated NOTAMs and Imposed restnctlons upon civilian alrcraft in an area whlch stood outslde of ItS aeronautical information services jurisdlction, D)The United ~tates posltioned Its warshlp at the centre of a civilian airway withln the Iranian terntonal sea.266 If the Court supports the Iranlan pOSition, the Umted States will be found to have breached its obligations under international law and therefore should be held responsible for the consequences of its actions by havlng ta pay compensation, since this flows as a consequences of Its hability for the damage 265See M.BedJaoul, "Responsiblhty of States; Fault and Strict Llablhty", supra note 219 Vol. 10 at 358-362 They prefer the pnnclple of "absolute hablhty" Independent of any question of negligence or want of care. 266See supra note 132 The observer of the Islamlc Repubhc of Iran betore ICAO Councii Meeting on 5 Dec. 1988 at p.1 O. Legal ASQects of the IR655 Tragedy Page 96 caused ln passlng, It IS useful to comment on state responslbillty that may stem tram occurrences outslde the state's own terntory The most Important case en state responslbillty whlch the pnor ICJ precedent addressed IS the Corfu Channel Case On May 15, 1946, two Bntlsh warshlps, when passlng through the Corfu Channel, whlch 18 located between the Albanlan main land and the northern part of the Island of Cortu, were tlred upon by an Albanran battery but suffered no damage The Bntlsh Government clarmed the rrght of passage through the straits concerned wlthout the need to ask permission, whlle the Albanlan Government declared that the passage of forelgn shlps had to be announced ln advance and requlred ItS apprcval A squadron of British warshlps, Includlng two cruisers and two destroyers, then left that part of Corfu and proceeded northward. The two destroyers struck mines and Incurred heavy damage; in addition forty-four British sallers lost thelr lives, torty-two sailers were inJured, two shlps were cnppled and 267 one shlp was totally lost . The Bntlsh Government contended that the mines had been laid by the Albanlan Government or, at least, with the knowledge of that Government. Albanra, therefore, should be responslble for any minefleld existing wlth ItS knowledge ln ItS terntonal waters It was also stated that government's duty ta Issue a warnlng at once to other governments and/or ta ail vessels likely to use the International seaway. The Albanla Government stated that a government 267 R Bernhardt. 'Carlu Channel case', See supra note 219 Vol.2 at 61. Legal Aspects of the IR655 Tragedy should not be held responslble If the damage was Just caused by reason of the tact that the mines happened to be ln ItS terrltonal waters, except If ttllS accu!! ed as a result of that state's actions or wlth ItS wllful dlsregarcJ It clrgued thélt astate should not be he Id responslble for ail that happens ln Its water s, becausp Il must allow its waters to be accessible ta navigation of ail shlps even If It does not possess mlnesweeplng equlpment268 Mines are weapons of naval warfare and the act of puttlng tbcm ln the path of forelgn merchant vessels should be consldered as the use of arrned force ln thls case, 1 C.J held, by eleven votes to flve, that the factual eVldence made It improbable that the Albanlan authontles had been unaware of thls mlne-Inylng ln Albanlan waters.269 The Court declared that U[ .. ] every state has an obligation not to allow knowlngly ItS terrrtory to be used for acts contrary to the nghts of the States [ ] these grave omiSSions Involve the International responslbliity of Albanla r ] therefore [ .] Albanla IS responslble under International Inw for the explosion whlch occurred on October 22nd 1946, ln Albanlan waters, and for the damage and loss of human IIfe whlch resulted frorn them and [ .. ] there IS a duty upon Albanla ta pay compensation to the United Klngdom.u270 The facts ln the Carfu Channel Case are slmllar ta those ln the IH655 incident. ThiS resemblance IS partlcularly noted ln the followlng areas Albanla 's responslbillty for actions taken by its natlonals although It clalmed to be unaware 268See 1Chang; Legal Problems Involved ln the Carlu Channel Incident, GemNa. E.Dral (1959) at 152-159 269See supra note 267 at 63 270See supra note 268 at pp.158-159. 1-:~~1 Aspeçts of the IR655 Tragedy Page 98 of mlne-Iaylng, the responslbliity of the U.S. for ItS warship's personnel; the reactlon of the Governments after the Incident happened However, ln the former Incident, It was possible to defend Albanla, elther because it was unaware of mlne laylng, or because the accident happened to a forelgn vessel when passing through Albanlan waters Although the IR655 Incident occurred ln Iranian terrltonal waters thls same defense can be used to support thls case. 6.3)Responsibility of the State for Acts of Armed Forces When acts or omiSSion of state personnel are incompatible with the rules of International law, they glve rlse to state responsibility because the conduct of any state organ under the Internai law of that state shall be considered as an act of the state concerned under international law, whether Its functions are of an international or an Internai character. Thelr conduct shall be considered as an act of the state If su ch persons are acting on behalf of that state or exercising governmental authority in case of the absence of the official authorities. The nature of the act and the nature of the function of the official are important factors to determlne whether astate is to be held responsible or not. If an individual commts êln International cnme, he or she must be punished according to the 27 ments of the special case ', while responsibility on the part of the state 27'See supra note 254 at pp 329-331. Legal Aspects of the IR655 Tragedy Page9~ consists of its failure ta live up ta International obhgation ta act wlth due dihgence ta avold causlng damage ta other states The Mexico-United States General Commission in the Janes case(1926), ln whlch a Mexlcan national was held hable for havlng killed an Amencan national, declared that astate IS 1esponslble fOi what it has done or failed ta do and not for the act of Indlv,dual persans It sald "[T]he government IS hable for not havlng measured up to Its dut Y of diligently prosecutmg and probably punlshing the offender The culpnt has transgressed the penal code of hls country, the state, 50 far from having transgressed ItS own penal code (whlch perhaps not even is applicable to It) has transgressed a provIsion of International law as ta State dutles. [---] [T] he government can be sentenced once the non-performance of its judiclal duty is proven to amount to an international dehnquency, the theories on gUilt or Intention ln criminal and clvillaw not belng applicable here. The damage caused by the culpnt IS the damage caused to Janes' relatives by Janes' death; the damage caused by the government's neghgence IS the damage resultlng fram the non-punishment of the murderer."272 A government is the aggregate of ail Its offiCiais, Includlng those ln ItS armed forces, and It bears a wlde and unlimited vicanous responslblhty for their acts which explains why it must be held to a hlgher standard of care. A recent example of responsibllity arising from actions of armed forces IS the Soviet shooting down of KAL 007.273 The United States Government is responsible for the USS Vmcennes' 2725ee supra note 259 at pp 174-176. 2735ee supra note 259 at pp.131-137 ln Massey case It was sald' '1 beheve that rt IS undoubtedly a sound general pnn",plr !llat, whenever mlsconduct on the part of any such persans, whatever may be thelr partlcular status or rank under domestlc law, results ln the fallure of a nation to perform ItS obligations under Internatlonallaw, the nation must bear the responslblllty for the wrongful acts of Ils servants' See supra note 259 at 195 k~9flL~spects of the IR655 Tragedy Page 100 actions ln the downlng of IR655 because milltary and naval forces were under its dlsclpllnary control, and because any use of force in the exercise of offÎCIal actions 15 consldered to be p"ma facle an act of 5tate. In determining the liability of the USS Vmcennes, It make5 no dlfference that it was operating in hostile territory because lIablllty may even anse fram the activltles of forces lawfully stationed in forelgn terntory. 274 274See supra note 255 at p.183 Article 3 of the Hague Convention of 1907 states that "a state is responsible for ail acts commltted by Its armed forces'. ln the hostlhtles between the Chlnese and Japanese force, the British Government informed bath parties that they should be responslble for any loss of British lite and property caused by thelr armed forces ln February 1938 the United States annaunced that "n would attrlbute ta Japan responsibllity for damage caused to United States natlonals or property by Japanese armed forces in China'. See supra note 254 at pp.323-330. Legal Aspects of the IR655 Tragedy Chapter 7: Iranian and U.S. Governments Position 7.1) The Iranian Government Position and the Case Pending Before the ICJ The Iranian position before the ICAO Councii and the ICJ was that the USS Vincennes vlolated Internatlonallaw Iran's delegatlon at the 125th Session of the ICAO Council stated: "The study of the report cle-arly reveals the commltment of an act of violence agalnst a commercial alrhner by the United States, whlch has shattered the confidence ln the safety and secunty of air travel"275 Iran declared that the ICAO Councll's efforts to resolve the case wlth the United States had been unsuccessful and that the Councii had rejected Iran's request to rectlfy the problem, so the declslon of the ICAO Councii was ln errur Iran appealed the ICAO Council decision taken on March 17, 1988?76 and, ln its application, took the position that the Government of the United States, by shooting down of IR655, had vlolated both the 1944 ChIcago ConventIon and the 1971 Montreal ConventfOn277 (Convention for the Suppression of Unlawful Acts 275See supra note 132 at p.8 2761ran submltted Its applicatIOn ta Instltute proceedlngs agalnst the Umted States on May 17,1989, Aenallncldent of July 3,1988 (Iran vUS) 28 1 L.M. 843 (1989) See Appendlx D 277 Convention for the SuppressIOn of unlawful Acts Agamst the Safety of Civil AViation (sabotage), Sept.23, 1971, 24 U.S.T. 564, T.I.A.S. NO.7570 1 L.M. 1151 (1971) (herelnafter Montreal Convtintlon). Bath Iran and Umted States are parties to the Montreal Convention. Legal Aspects of the IR655 Tragedy Page 102 Agalnst the Safety of CIvIl Aviation). Iran in its contentions requested the ICJ ta declare that the U.S. Government had violated the Chicago Convention, including the Preamble, Articles 1,2, 3 bis and 44(a) and 44(h) and Annex 15 of the Chicago Convention. as weil as Recommendation 2.6/1 of the Third Middle East Regional 278 AIr NavIgation Meeting of ICA0 , and Articles 1,3 and 10(1) of the Montreal Convention. According ta these Articles, Iran 's important legal contentions before the ICJ would be bath that USS Vincennes' action violated Iran's right ta soverelgnty over the airspace ab ove its territorl79 including the airspace above 280 its territonal seas , and the use of armed force against civil aircraft which is prohibited under the Preamble and Articles 44(a) and 44(h) as weil as Article 3 bis of the Chicago Convention. Iran's contention in referring to the Recommendation 2.6/1 of the Third Middle East Regional Air Navigation Meeting was apparently to criticize the co-ordination of military and civil uses of airspace in the Persian Gulf area, and its reference ta Annex 15 of the Chicago Convention was ta contend that the NOTAM issued by the U.S., because of the lack of some important elements, was not in conformity with the provisions of the Annex. 278See supra note 191. 279ChlCBgO Convention at Art.1. 280ChICBgO Convention Art.2. Legal Aspects of the IR655 Tragedy 7.2) The United States Government Position Iran, by refernng ta Articles 36(1) and 37 of the Status of the Court, and t0 Article 84 of the Chicago Convention, appealed the ICAO Councll's declslon taken on March 17, 1989. The United States obJected to the junsdlctlon of the ICJ ln the IR655 Case on March 4, 1991. In thelr competlng clalms over junsdlctlon, Iran asserted that mandatory junsdlctlon is deflned by Article 84 of the Chicago Convention and Article 14 of the Montreal Convention, while the United States denled the Court's junsdiction alleging that the dacision of the Councii was not ta ken under Chapter XVIII of the Chicago ConventIOn and for that reason was not appealable under Article 84 of the Convention. Furthermore, the Iranlan reference to the 1971 Montreal Convention causes some legal diffleultles, since that ConventIOn deals with en minai acts of Indlviduals and was not Intended ta apply ta aets of states. The fact is that the Montreal Convention of 1971 eontalns a clause on the compulsory Jurisdiction of the ICJ, and thus reference ta that Convention would appear ta reinforce the Iranian assertion that the ICJ IS competent to conslder the matter. It remalns doubtful whether the substance of the Montreal ConventIon of 1971 is relevant in this case. The vlews of the United States wlth respect to the IR655 Incident have been expressed in the U.S. Department of Defense Investigation Report, ln conJunctlon with the ICAO Investigation Report, and in vanous U.S. authontles' declarations hEill.êL8§Q~cts of the IR655 Tragedy Page 104 before the U.N. Secunty Councll and the ICAO Council. A day after the IncIdent, President Reagan announced hls country's regret. He sald that the U S would make an ex grat/8 payment to the families of the vlctlms, and then he Issued a statement of sympathy and condolences ta the familles of the passengers and crew who perished.281 On July 14 VIce PresIdent George Bush defended the U.S. actIon before the U N Secunty Councll and added that the USS Vincennes' action was justifiable under the InternatIonal law of self-defense.282 ln tact, the United State's Government denied its responsibility and contended that tlrst, slnce the USS Vincennes' commander believed the aircraft ta be an ImmInent danger for his ship, he acted in a good faith, and second, that the Iranlan Government shared responsibility for the downing of IR655 by allowing IR655 to fly over a warshlp engaged ln battle.283 This American claim has no legal slgnlflcance and it mlght be merely a political rather than a legal statement. Slmllarly VIce-PresIdent Sush's stated before the U.N. Security Council that if Iran had termlnated ItS war with Iraq, then th,s incident would not have occurred. The UnIted States positIon in the present case IS different from its position ln prevlous simllar cases The United States, as weil as other natIons which have argued that violence against ciVil aviation is morally wrong, on a number of 281 See supra note 225 282See Newstranscrrpt, supra note 33 at p.5. 283See supra note 35. Legal Aspects of the IR655 Tragedy Page 105 previous cases, except in the present case which has dlsclalmed habihty, argued that nations who have used force against civilian alrcraft should be he Id hable. For instance, if we compare the U.S position in the KAL 007 and IR655 Incidents, thls difference will be clear. -- ln the KAL 007 the Soviet Union clalmed that the airer aft was performing a military function. In this incident the Soviet authontles assumed KAL 007 to be an intelligence aircraft.284 -- ln the IR655 incident, according to U.S Department of Defence Report, the commanding officer of USS Vincennes believed the aircraft to be hostile and a threat ta his Shlp.285 President Reagan stated that the Vincennes followed standing orders and widely-publicized procedures, tlring to protect Itselt against possible attack.286 --A key e/ement in the US charge against the USSR in the KAL 007 Incident was that Soviet fighters did not seriously attempt ta warn KAL 007 before the shoot down of the airliner. President Reagan's allegations, which after further 287 examination were proved to be wrong , were that: "Among the rest of us there is one protective measure, an international radio wavelength on whlch pilots 284See; C.A. Morgan, "The Downing of Karean Air L1nes Fhght 007' 1985, Y.J.lnt'I.L. at 218. 285See DOD Report at EA6. 286See DOS Bulletin 1988 at p.38. 287See R.W.Johnson, Shootdown the Verdict on KAL 007, London. Chana and Wlndus, 1986 at p. 181. Legal Aspects of the IR655 Tragedy Page 106 can communicate with planes of other nations if they are in trouble or lost. Soviet planes are not so equipped because that would make it easier for pilots who want to defect."288 (President Reagan, 5 September 1983) After the KAL flight 007 incident, many nations strongly condemned the Soviet Union; the United States expressed outrage over what it was understood to be a barbarie act of murder.289 Helm, the FAA Administrator, stated that "I need not repeat the outrage expressed at the highest level of my Government at the interception and destruction by Soviet military aircraft of Korean Airliner #007."290 -In the Iran Airbus incident, the U.S disclaimed its liability. President Reagan 's spokesman announced that "the United States is prepared to provide compensation to the families of the victims ... this compensation will not be otfered on the basis of any legalliability or obligation."291 According to the princip les of maritime law, the appropriate response to a ship that has strayed into territorial waters is to offer assistance, not to act aggressively against it. The United States of America and the U.K have pointed to these pnnciples and applied them to cases of innocent overflight byanalogy.292 288 'd 289See supra note 227 at p.663. 290See DOS Bulletin 1983. 291 See DOS Bulletin, Sept. 1988 at p. 39. 292See supra note 227 at 668-669. Legal Aspects of the IR655 Tra~g=e=d:...LY______Page 107 Prohibition of the use of force agalnst clvilian alrcraft was clearly stated ln declarations of other nations and international orgamzations The conclusion ln the ICAO Report of 1958 on the leglslation and practlce of States wlth regard to alrspace violation IS that most states use warnlng shots to the alrcraft to land or ta change course, but by no means preclude the opemng of tire ln case of pursuing ItS course in splte ot su ch warmng. Legal Aspects of the IR655 Tragedy Page 108 Conclusion On July 3, 1988 Iran Air Flight 655 (IR655), on a schedulad flight from Bandar Abbas ta Dubai, crashed and the aircraft wreckage plunged into the sea and sank. The preliminary information provided by the U.S. Department of Defense Investigation report into the circumstances surrounding the downing of IR65S, as weil as President Reagan's announcement on the day of incident and, later, the U.S. presentation to the ICJ argued that the USS Vincennes' action was in strict conformity with and justifiable under the internationallaw of self-defense. However, as has been dlscussed in thls study, the USS Vincennes' commander did not have a valid claim and a factual basis to support his defence. The Investigation Report made by the ICAO Fact-finding Investigation Team, and essentially in line with the ICAO Procedures, gives no clear indications that the IR655 represented a threat of hostile action. A natlon's use of self-defense is limited by the requirements of "necessity" and "proportionality". According to the first requirement, there must eXlst an actual taklng-over of the right of the defender, and evidence that the measures taken in a given case were reasonable. And under the principle of "proportionality", these actions even permitted under the principle of IInecessityll may be prohlbited in accordance with the principle of "proportionalityll if they are incommensurate with the satety requirements of the air navigation. Whatever the circumstances, such as unintended and innocent human error, a wilful action by the captain for a nonpolitical reason, or a deliberate action Lega/ Aspects of the /R655 Tragedv Page 109 by sorne of the crew members in fu/fi/ment of surreptitious behaviour, it is a tact that a civilian aircraft was shot down by mi/itary warship resultlng ln a serious loss of life. Decisions taken by the ICAO Counci/ in the IR655 incident on July 14,1988, as did its previous decisions on simi/ar matters, reatflrmed, inter 8/18, ItS pohcy, outlined the principle of customary internationa/law related to the non-use of force against a civil aircraft in flight, and condemned the use of weapons against civil aircraft in flight. Once again. as at numerous other times ln ItS history, the ICAO Council recognized such use of armed forces ta be a grave threat ta the safety of international civil aviation. On December 7,1988 the ICAO Councll urged ail States to take necessary actions ta improve the safety of air navigation, particularly by assuring appropriate co-ordination between the responsible mlhtary authorities and the appropriate air traftic services authoritles. a proposai that was also urged ir~ .,le final Resolution adopted by the ICAO Councii at the twentleth meeting of its 126th Session. The ICAO Council found it necessary ta refer the safety recommendation contained in the ICAO Investigation Report to the ANC for further study. The ANC concluded that the current ICAO Provisions were adequate to prevent any recurrence of such incidents. The ANC, with regard ta the civil/military co-ordination, was of the opinion that Annex 11 adequately covered the requirement for the exchange of information between A TS authontles and military authorities, and that there was no need for the additional standards. However, the ICAO Council and the ANC could furnish no specifie solution except Legal Aspects of the IR655 Tragedy Page 110 that they recommended that States avold such intrusion, and improve their air navIgation faclhtles and alds to th,s end. There are some Important simllantles between the KAL 007 and the IR655 Incidents The ICAO Council, ln Its Resolution on March 6, 1984, condemned, inter alIB, the use of armed force whlch resulted in the destruction of KAL 007 and the tragic loss of Innocent passengers, and it deeply deplored the USSR's failure to co-operate with the ICAO Investigation Team. (It must be remembered that the same sort of resolution proposed by the Representative of the USSR was not approved by the ICAO Council in the IR655 case.) One clear conclusion drawn fram the ICAO resolution is that in the opinion of the ICAO Council, whatever the circumstances whlch may have caused the Karean aircraft to deviate trom its course, the use of armed force against it is known to be incompatible with the norms of international behaviour and the Chicago Convention, as weil as the humanitarian pnnciples. ln spite of tremendous efforts during the last few decades, we are witnessing tragedies with heavy losses of life. We should be actively seeking ways to answer the questions of what should have been done that was not done, and what can be done to ensure that incidents such as IR655 do not occur again. In response to these klnd of questions which have been asked each time, the ICAO Council has produced International Standards, and Recommended Practices and practical guidelines for States, aircratz and airport operations to attempt to maintain the safety of international civil aviation. The International Civil Aviation Legal Aspects of the IR655 Tragedy Page 111 Organization is unable to face the risks to the safety of civil aViation unless States strive to increase their knowledge and urge themselves and their Indlvlduals to act in conformity with the ICAO provisions Such compliance wlth International law assures the safety and efficient development of air transport The decisions taken by the ICAO Council are legally and morally blndlng and politically significant. To ensure international co-operation, they may be enforced if there is a specifie threat of sanctions for non-compllance. =B=ib=ho=g~r=a=ph~Y~ ______~Pa~g~e. 112 Selected Bibliography 1) Books: Brownlie,1. Pnnciples of Public International Law, 4th ed., Clarendon Press-Oxford (1990) at 440 Brownlie,1. System of the Law of Nations - State Responsibilitv, New York; Oxford University Press, (1983) Part 1 at 23 Bllx,H. Sovereignty. Aggression and Neutrality, Pub!. by the Dag Hammarskjold Foundation (1970) at 42 Buergenthal,T. Law Making ln the International Civil Aviation Organization, N.Y.: Syracuse University Press (1969)at 58-88 Cheng,B. General Principles of Law as Applied by International Courts and Tribunals, (1987) Cambridge, Eng. Grotius Publications, at 218 Cheng, B. The Law of International Air transport, Published under the auspices of the London Institute of World Affairs, (1962) at 1-170 Chong,l. Legal Problems Involved in the Corlu Channel Incident, Geneva: E. Droz (1959) at 152·159 Fletcher,G.P.A. A Crime of Self-Defense, New York: The Free Press, A Division of Macmillan, 1988 at P.40 Johnson, R.W. Shootdown the Verdict on KAL 007, 1986, London: Chatto and Windus Matte,N.M. Treaties on Air-Aeronautical Law, Montreal: ICASL, McGiII Uni. (1981) Bibliography Page 113 Milde,M. International AViation Organization; course material, lAS L, McGl1i Uni Fall (1989). Oppenheim,L. International Law, A Treatise; 7th ed. Vol.1 London,New York: Longmans (1948) at p.311 Stone,J. Legal Controls of International Confliet; A Treatles on the Dynamlcs of disputes-and War-Law, Sydney: Maitland Publications, (1959) at 243,244 Smith,J.C. Liability in Negligence, Toronto: Carswell Legal Publication (1984) at p 2 Schwarzenberger ,G. International Law as Applied by International Court and Tribunals, Vol.1 London: Stevens, 1957 at 639 Sloan,I.J. The Law of Self-Defense. Legal and Ethical principles, London, Rome, New York: Ocean Publication, (1987) at p.7 Sekiguchi M. Aircraft Accident Investigation in Canada. the U.S. and Japan IASL. McGiII University (1981) at p.1 Encyclopedia Britannica Vol.11 Published in 1968) • Weiler ,J.H.H. International Crimes of State. A Critical Analysls of the iLC's draft Article 19 of State Responsibility; Berlin, New York: Walter de Gruyter, (1989) Articles: Bedjaoui,M. "Responsibility of States, Fault and Strict Liabilityll Encyclopedla of Public International Law, [Vol. 10 1982] Published under the Auspice of the Max Planack Institute. at 358-362 BlbIJography Page 114 Bryde,B.O. Self-Defence, Encyclopedia of Public International Law, [Vol.4 1982] Published under the Auspice of the Max Planack Institute. ~instalment 4 at 212] Bernhardt,R. ll "Customary International Law , Encyclopedia of Public International Law, 1982 Publlshed under the Auspice of the Max Planack Institute. [instalment 4 at 212] Schulz,K. T. ll IIThe Legal implication of United States Policy toward Nicaragua , [Vol.22 1985] San Diego L.Rev. 895-939 Dinstein,Y. IINeutrality in Sea Wartare"; Encyclopedia of Public International Law, [Vol.4 1981] Published under the Auspice of the Max Planack Institute. [instalment 4 19-28] Ewing,D.A. IIThe Downing of Iran Air Flight 655, Hightlighting the Need for International Adjudication of Damages", spring 1990, Suffolk Tran.L.J. 656 at p.657 FitzGerald,G. F. "The Use of Force Against Civil Aircraft; The Aftermath of the KAL 007 Incident" 1984 Can.Y.lnt'I.L.291 at 291-309 Hallbronner,K. 'Topical Problems of International Aviation Law", 1973, 8, Law and State, Institute for Scientific co-operation Tubingen, Landhausstr, Federal republic of Germany at 96,99 Kaplan,N.J. "The Attack on Osirak: Delimitation of Self-Defense Under International Law' [Vol.4 1982] N. Y.J.lnt'l.& Comp. L. 131 at 131-156 Linnan,D.K. IIlran Air Flight 655 and Beyond: Free Passage, Mistaken Self-Defense and State Responsibility", [Summer 1991 Vol.16 no.2] Y. J.lnt'I L. 245 at 339 Menefee,S.P. "Gunboat Diplomacy in the Persian Gulf; An Alternative Evaluation of Bibliography Page 115 Contemporary Naval Confliet", [Vo1,31 1991] Va.J.lnt'l,L. 567 Morgrant,C.A. "The Downing of Korean Air Lines Flight 007", 1985, Y.J.lnt'l,L. at 218 Modabber ,Z. "Collective Self-Defense: Nicaragua V United States", [1988 Vol. 1a no.2] loy.L.A.lnt'l.& Com.L.J. 446 at 449-460 MeNeill,J.H. "Neutral Rights and Maritime Sanctions: The Effect of twa Gulf wars"; [VoI,31; 1991] Va.J.lnt'l.L. 631 at 632 MeCarthy,G.M. "Limitation on the Right to Use Force Against Civil Aenal Intruders, The Destruction of KAL Flight 007 in Community Perspective" [Fall 1984; V.6] N. V.L. Sch.J. Int'I & Camp. L. 177 at 185 Mrazek,J. "prohibition of the Use and Threat of Force; Self-Defence and Self-Help in International Law', [Annual 1989 V.27] Can.Y.B.lnt'l.L. 81 at 81-111, Milde,M. "Interception of Civil Aircraft vs. Misuse of Civil Aviation", [Vol. XI 1986] Ann.Air.& Sp.L. at 125 Milde,M. l "Aircraft accident investigation in international law , [VoUX nO.1 1984] Air Law, at 61-65 Milde,M. "United Nations Convention on the Law of the Sea , Possible Implication for International Air Law' [1983 VoI,VIII], Ann. Air & Sp. L. 167 at 168 and 179 Peaee,O.L. "Major Maritime Events in the Persian Gulf Between 1984 and 1991; A Juridical Analysis" [VoI.31: 1991] Va.J. Int'l. L. 545 at 552-554 Ronzitti,N. "The Right of Self-Defense and the Law of Naval Warfare" [V. 14 1988] Syr.J. Int'l. L.& corn. 571 at 571-575 Blbllography Page 116 Schachter,O. "Self-Judging Self-Defence", [V.19 Spr.1987] Case W.Res.J.lnt'l L. 121 at 121-127 SChneider,P. "Dogger Bank Incident, Encyclopedia of Public International Law, Vol.10 1982 Published under the AusrJice of the Max Planack Institute. at 131 Schachter,0. "In Defense of International Aules on The Use of Force"; [1986 VoL53] U. ChI. L. flev. 113 at 132 Schachter,O. "Self-Defense and the Rule of Law" [April 1989 VoL83] Am.J.lnt'l L. 259 at 259-277 Seidel,P. "The Alabama", Encyclopedia of Public International Law, Vol.2 1982 Published under the Auspice of the Max Planack Institute. at 11. Wolfrum,R. "Reflagglng and Escort Operation in the Persian Gulf, An International Law Perspective", [Vo1.29 1989 ] Va.J.lnt'l.L. 387 at 394 and 395. Wright,Q. "The Cuban Quarantine", [1963 57] Am.J.lnt'l.L. at 546-560. Zemanek,K. "Responslbility of States: General Principles", Encyclopedia of Public International Law, VoL10 1982 Published under the Auspice of the Max Planack Institute. VOL. 10 at 362-372. ICAO Publication: 1. DOC;C-Min. 14.7.88 Extraordinary Session of the Council. 2. DOC:C-Min 125/12 23.1.89125th Session of the Council. 3. DOC:C-Min 125/13 23.1.89125th Session of the Council. 4. DOC:C-Min 125/14 20.1.89125th Session of the Council. Bibliography Page 117 5. DOC:C-Wp 8718 1.12.88 125th Session of the Councii. 6. DOC:Ref: Pres AKl144 20 Nov.1987 and AN 13/403 18 Nov 1987. 7. DOC:9509 Assembly Resolutions in force as of 10 October 1986 8. DOC: 125/19 30.1.89, (part 1) 125th Session of the Council. 9. DOC:C-DEC 125/19 19.12.88 125th Session of the Councii 10. DOC:C-Min. 125/18 (part 1) 31.1.89 125th Session of the Councll. 11. DOC:AN Min. 120-621.2.89 related to AN-WP/6289 12. DOC:ANC Task No. RAC-8801 related to AN-WP 6289). 13. DOC:C-Min. 126/18 27.6.89 ICAO Council- 126th Session. 14. DOC:C-OEC 126/18 13.3.89 126th Session of the Council. 15. DOC:C-Min 126/19 24.7.89 126th Session of the Council. 16. DOC:C-DEC 126/19 29.3.89 126th Session of the Council. 17. DOC:C-DEC 126/20 8.8.89 126th Session of the Council. 18. Appendlx to C-WP/8708 Report of ICAC ~act-Flnding Investigatlon- November 1988. 19. DOO Investigation Report; Formai Investigation Into the Clrcumstances. Surrounding the Downing of Iran Air Flight 655 on ,July 3, 1988- App E to the ICAO Investigation Report. 20. DOC: 9680-C/1 014 Council Extraordinary Session, August 20, 1973 and 80th Session October 1 - December 13, 1973, Montreal 21. AN-Min. 120-8 120th Session of ANC. 22. C-WP/8803 2.3.89 126th Session of the ICAO Council. 23. DOC.9509 Assembly Resolutions in force as of 10 October 1986. Blbllography Page 118 24. DOC. 9434 MID/3 Report of the Third Middle East Reglonai Meeting, Montreal March 2? -April 13, 1984. 25. DOC.9581 Annual Report of the Councll-1991 for the Session of the Assembly in 1992 26. ICAO International Standards and Recommended Practices: Rules of the Air, Annex 2 to the Convention on International Civil AViation, (9th ed. July 1990). 27. ICAO International Standards and Recommended Practices: Air Traffic Services, Annex 11 to the Convention on International Civil Aviation, (9th ed. July 1990). 28. ICAO International Standards and Recommended Practices: Aircraft Accident Investigation, Annex 13 to the Convention on International Civil Aviation, (7th ad. May 1988) 29. ICAO International Standards and Recommended Practices; "Aeronautical Information Services Il Annex 15 to the Convention on International Civil Aviation, 8th ed. July 1991, Chapter 2. 30. ICAO Bulletin; July 1988 at 19. 31. C-Min 1988/2 27/7/88; Extraordinary Session of the ICAO Council. 32. ICAO News Release of June 1973. 33. Ref: Pres AKl144 20 Nov.198? and AN 13/403 18 Nov.1987. Others: -REF. 588/4.7.88 in Iranian Delegation in ICAO: The First Letter which was sent to ICAO Council by Iran/an Government. -Transcript# 2898 ABC News July 1, 1992. -Department of State Bulletin - September 1988 at 39. -Newsweek, The International Newsmagazine; July 13, 1992 at 15. Bibliography Page 119 -(1983) 22 Int'I Leg. Mat. 1157. -DOS Bulietin,Sept. 88 at p.38. -United States, Laws, Statute, The laws of neutrallty as existing on August. 1 ,1914, Washington, Government Printing Office (1918) at p 91. -the Northsea or Dogger Bank Case 1905 (Great Bntaln v. Russia), in: J.B.Scott (ed). The Hague Court Reports, New York Oxford University Press (1916), at 403-413. -UN Convention on the Law of the Sea: Public International Air Law 1 Edlted by I.A. Vlasic 2nd ed. September 1989 for the use of students IASL. McGl1I Uni. -Map; Y.J.lnt'l. Vo1.16: 1991, 245 Note to Appendix C: Because of the smalt size of the letters in Appendix C, we are obliged to provide each page into two; therefore the reader should note that the two pages are to be read as one whenever IIcontlnuedll appears. List of Abbreviation Page 120 Ust of Abbreviation ANC ICAO, Air Navigation Commission AoC Area of Conflict Am.J. Int'I L. American Journal of International Law Can.Y.B.lnt'l.L. Canadian Yearbook of International Law Case W.Res.J.lnt'l,L. Case Western Reserve Journal of International Law CHI. L.REV. Chicago Law Review C-WP ICAO Council-W'Jrking paper CITEJA Comité International Technique Dexperts Juridiques aériens Doc ICAO Document 000 Department of Defense DOS Department of State FAA Federal Aviation Authorities G.c.e. General Claims Commission H.C.R. James Brown Scott: The Hague Court Reports 2 Vols. New York, 1916-1932 HF. High Frequency ICAO International Civil Aviation Organization IASL Institute of Air and Space Law ICJ International Court of Justice IFALPA International Federation of Airline Pilot Association List of Abbreviation Page 121 IFF Identification of Frlend or Foe ILC UNI International Law Commission Int'!. Leg.Mat. International Legal Matenal Int.Arb. J.B.Moore Hlstory and Digest of the International Arbltration, 6 Vols. Washington 1898 IR655 Iran Air Fhght nO.655 jd. Junsdlction KAL-KE Korean Air line Los Ang.lnt'I & Com.L.J Los Angles International and Commercial Law Journal Loc. Cit. Loco Citato (lat) The Place already Clted MHz Mega Hertz NM Nautical Mile NOTAM Notice ta Airman NY New York N.Y.J.lnt'I.Com.L. New York Journal of International and Commercial Law N.Y.L.Sch.J.lnt'l.& Comp.L. New York Law School Journal and Comparative Law P. Page PANS Air Navigation Procedures PCA Permanent Court of Arbitratlon PCIJ Permanent Court of International Justice PHA Potentially Hazardous Airspace List of Abbreviation Page 122 Pres.A.K President! Asad Kotait Ref. Reference SARPS Standard and Recommended Practices SUPPS Supplementary regional Procedures Suffolk Tran. L.J. Suffolk Transnational Law Journal Syr.J.lnt'l.L.& Corn. Syracuse Journal of International Law UK United Kingdom UN United Nation U.ChLL.Rev. University of Chicago Law Review US United States USSR Union of Soviet Socialist Republic Va.J.lnt'l.L. Virginia Journal of International Law Vol. Volume VHF Very High Frequency W.Res.J.lnt'l.L. Western Reserve Journal of International Law Y.J.lnt'l.L. Yale Journal of International Law Table of Cases Page123 Table of Cases Alabama Case: (1872) U.K. & U.S. 1, Int.Arb. p495, Arbitral awards of 1827, Moore, John Bassett, History and Digest of the International Arbitrations to whlch the United States has been a Party, vol.1 (Washington: Government Pnnting Office, 1898) 495-682 Corfu Channel Case: (U.K. v. Albania 1949) ICJ. 4 (merits) Chorzow Factory: PCIJ; German/Poland: jd. 1927 Dogger Bank Incident: (u.K. v. USSR 1905) Finding Report Feb.26. 1905, The Hague Court Reports N.Y. Oxford University Press, pp. 403-410 Falkland-Malvinas Conflict (1982) Greco-Bulgarian frontier incident: (1925) Leaque of Nations, Doc.C.727,M.270 Janes case: (1926) U.S.-Mexican Claims Commission (Annual Digest, 4 (1927-8), Case no. 143) Jamaica case: 1798, 4, Int. Adj, M.S. p.489 (Jay Treaty Art. VIII, Arb. 1794, G.B/U.S.) Arbitral awards; Moore, John Bassett, International Adjudication- Anclent and Modern History and Documents, together with Mediatorial Reports, Advisory Opinions. and the Decisions of Domestic Commissions on International Claims,Modern Series IV (New York: Oxford University Press, 1931) 489- 518. Massay Case: Mex. U.S. G.C.C. (1923) Nicaragua (Nicar. V. U.S.): 1986 I.C.J. 70, para.1 (Judgement on merits of June 27) Pakistan v. India: C/1001 8956: 372, A case before the ICAO Council in 1971 Table of Cases Page124 People v. Collice' 41 NY 2d 906; NY 394 NYS 2d 615 People V. Goetz: 131 misc,2d 1,5 (1966), 185 NE 2d 912; 233 NYS 2d 476; Appellate Division) People v. Gonzalez' 80 AD 2d 543 (supreme Court Appellate Division, 1st Dept. 1981 Russian Indemnlty Case: (1912) H.C.R.P. 532 at p. 546 (transI.) and (1912) PCA: Russia{furkey Appendices Appendix A Page A-1 IInl'l Bandar 'Abbas IRAN azireh-ye d HOnTIUZ ,.. , ,, ,, . ,, ,.. " , Strait lIâ! ' u.s.s s.. ___ .---,,-" ... " "- Jazireh-ye ,r"""..... ,I. " ./ Hengam Il,'...... il ··Hormuz "" (Ina) Il 1 \ .-, \ # ,_. Great , u.s.s 114....-, • /. " ,~ Quoin J.. •. J u.u. v_ l (OmM)., Lutle 1 ••• •• "-.... ,. ... •••• .-,~,~ Quoin 1. f 1 • , 1 ~, 1 l12nauul 'cal ,, 1 mile limit 1 1 1 ' f Persian ,1 , Gulf 1 • 1• Gu{fof ,~• ,1 Oman • ."', • -.. " ~ ,• #.• • , ,# • • • f, • • , •• ! OMAN ,• ,, ,, ,, • , \. ( ,• Line 1 10 HM U .A.E. ~'.AdminiSlrativt• Appendix B 8. SAFETY' 11lI1Il,)I1 p.l\\l'I1).!l'I-klllllllt'lll" l\l\" ,11dllll Il''111 \1 (Ii 11\ I()()(l \(10 (l,1 III 1()li 1, .I~ .1 t' Prelurunary InfOrmallon on airer aft accidents Im'ol\'lOg passcnger fata1ltlc~ 10 schcduleù air sen'Iccs for leAO Il1fOllll,lllOIl ,01lU 1III Il " Ih,' , Il, ,!> ,'1 li Il !.l Il 1111 1111, 1 l, 1< Il,, l' ContractlOg States <;ho\\'~ tha( l!Jere wcre 30 fatal ;mcraft '-<1111,1111,,1 ln t 'h 11'1"1 \'11 - \, 1.11"'11 .... , lI"l\ aCCidents 111 1991 Inyolvltlg 653 p:L%L'llga f,ltalltll'\ 111 (, Il IllJ\ (", 11<11"llh.II ("1 1<>\'1. .1, 1'11('.1111, l ".lI·. III J( \ll scheduled ser\'lCCS, comp:Lred (0 25 L~tal acclùctlt'. and .jo:, 1('''lId ,,' .11' "kil!> .Ilhl 1.11 "IIH \ " 1'1(\(,.,(,11 111.' '11'1'(' 1. III re-halt'IlLl' Ip .... lu.tllt 1 .llllr.lIl lli l~llIllIlUt( Z \11.\111.\\1 t\I"" III passcnger falal1ucs III 1990 (~el' Table~ 1-17 ami 1-18 and llrel.III"II\. b..'lh ,,(lt'dllk.t .lIld ""11" 1,,',\111," 1 hl' \Ih'" Dlagram 1-5) 6 Relaung passcngcr faldhtlL'~ 10 ùle volume "'Illllll' 1\ h"h!'\l'd III bl 111'>1I'IlI'I •• IIII III Il,, 1\,,'1 .dl \.Iltl' of traffie, the numbcr of pa<;<;engcr latahues per 100 l'ICI"!,: \lI lOIlIlII<'I Table 1·17. Aircrafl accidcnl~ ln\'oh'ing pa.\<,(·ngcr fatahtlc\ 011 !.chcduh'll air "T'Ile .. , I l)72-1 1)1)1 .. ~~------~ ---- Passenoer lalallbes ratai aCCidents ~atill ilrcl(jel1t~ per tbo million per tOJ mllhon PPI 100 Ot,1 Alrcrah Passenge~s passenger passenge' krr miles airerait iHrer ,lt: Yea: a~cldenls killea km miles fi 0\\ 1\ flown h01l11 I,I"dlrH1" Excludmg Russ/an FederatIOn 1972 41' 1209 026 042 057 092 034 043 1973 36 862 017 027 048 071 o ?8 o:lG 1974 29 1299 024 038 039 063 o ?3 030 1975 21 467 008 o 13 028 o 4S 017 o..'J', 1976 202 734 012 019 026 041 OlS o?O 1977 24 516 007 012 030 048 o la 0;'4 1978 25 754 009 015 029 047 018 0(>4 1979 31 877 010 016 034 o5S 021 01'9 1980 22 814 009 014 024 038 o 1~ 01'1 1981 21 362 004 006 023 031 014 0:'0 1982 26 764 008 o 13 028 o 4G 01B 01") 1983 20' 809 008 o 13 021 034 013 (J lh 1984 16" 223 002 003 016 026 010 Olt. 1985 22 1066 009 015 021 034 013 019 1986 17 331 003 004 015 0(4 009 () 14 1987 24 890 006 010 020 032 012 Û lh 1988 25 699 005 008 019 031 012 018 1989 27 817 005 008 020 032 o III 019 1990 22 440 003 004 015 025 009 o 1~ 1991 25' 510 003 005 018 o 2CJ 011 018 Includtng Russ/an Federat/on 1986 22 546 004 006 na na na na 1987 26 901 006 009 na na na na 1988 28 729 004 007 na na na na 1989 27 817 005 007 na na na na 1990 25 495 003 004 na na na na 1991' 30' 653 004 o OE na na na na 1 Ineluoes IWo mld-rur ColliSions shown nere as IWo aCCidents 2 Ineluaes one mlo'a:r colliSion snown here as one acclden~ 3 Incluoes o~e coll'slon on tne grouno shawn here as one aXlden, 4 In:luoes one colliSion on tr,e ground shawn here as IWo aCClaents Prehmlnary ligures na nOI avaliaole ~------Page 8-2 ------'Jahle I-Ut Nurnher 01 fallil accldcnl~, pa.,~cngcr fatalitlc\ and ~unlvor., lur!Jo-jel, luroo-propeller and p/\lon-enf{tncd aIrerafl, Icheduled atr sen:/ces, 1984-1991' (total, /n/('rnatlOnal and domesl/c) ------~------Totallor Cla~51lf..drl0n 1984 1985 1985 1957 '988 1989 199~ 1991' 8 years ------rJlal pas5enger iJrGldents Turbo I",t 2 7 8 10 11 10 10 9 67 2 rurbr) propr~ller 9 10 9 12 13 15 13 14 95 PI',1on-<} nrlIIlP d 5 5 5 4 4 2 2 7 34 Total 16 22 22 26 28 27 25 30 196 P(JSSenger~ killed lurbci-iei 47 861 405 633 462 571 310 433 3722 l urbo-proprller 159 179 105 249 261 241 174 159 1 527 PI',lon-erlgtnbd 17 26 36 19 6 5 11 61 181 Tolal 223 1 066 546 901 729 817 495 653 5430 Passcngers survlvmg TurbO-let 109 93 177 116 448 906 616 289 2754 Turbo-pro;;cller 39 24 90 15 39 44 57 63 371 Pl'ilon-'~ngtned 4 5 16 3 29 5 2 10 74 Tola l 152 122 283 134 516 955 675 362 3 199 1 olia Irom 195~ 10 19~ 1 Incluae Ule Ru sSlan FeaeratlOn Daia lor earller years do not <' In'Iudes oné mld alf colliSion belWeen IWo lurboprop airera" (counteo as one accident) p, dlllOlnary ligure, ------ eXlhldlll,l! thc RU\\I Fatal Accident Rates for Passengers on World Scheduled Servlces*, 1972-1991 1400~-r--~~--~~--~-.--~~--~~------ : : ~'-i\---'-~+--NU+--mbe+--,J~ss-en+~-,,-,+ k~:,~t 1_ -m---_ 800 -+--T-__~~--_t_-+-_'___f0._tn-s-ch__\eduled services __ 1 l- _ ! 600 +--+--+--H--F--i-'~-/ 400 1 200~~--~~--~~--~~--~-L--~-L--~~-~~ __~-L __~~ 035 - 1 1 1 030 --- 1 _-HLl- 025 1 1 --- 1 1 1---'1 L_ 1 0.20 i\ JI\ - ~---- 1 j--j-J-T1 -- 015 Y \1 ---1 ------! Passenger fatalltles per / J 1 1 100 million pass ·km 1 / \ 1 -- 010 \' ~ r----T-----.------<- - ~ v~ 0.05 1 l\/~n+rl - - - 000 1 c ::======-=-=-!TITlT-- o 4 ~-+---"t---i-----,---""'--~---~---'-~--,~! -; ++T- o 3 -t-+-~~--:--:7'*-____ ~~ --'--:, : i r 1 02/ Fatal accidents p'er 1 0.1 ~-+-__+---+- _____~_1~~~~_ ---L--;~- ~ ____ .: _ 1 i Iii 1 1 l' 1 1 1 00~~ __~~ __~-L __~-L __~~ i __~~ ______~ __~~~ 1972 73 7~ 75 76 77 78 79 80 81 82 8~ 84 8", 8E, 87 8i! fl') 'jr) l'J'J1 • AccIdent rates rple' te trafflc of ICAO Contractmç; States erCludlnr; th", RU<;~.I"r "'''J'''''' 1 1'" Appendix C Page C·1 Discussion Paper No.3 related to AN-WP/6289 3/2/89 AIR NAVIGATION COMMISSIOIN ANC Task No. RAC-8801: Provis ions pert inent to act iv it ies potentially hazardous to civil aireraft (Counctl Subject No. 14.1) ANC Task No. RAC-8901: Safety measures relating to activities potentially hazardous ta clVll ancraft (Council Subject No. 14) (Prcseoted by the Director of the Air Navigation Bureau) 1. As requested by the Air Navigation Commission on 2 February 1989 (120-6), a four-column presentation of the material in Appendix A, Band C to AN-WP /6289 i& attached. 2. The opportunity has been taken ta include extracts from the relevant lexts of Annexes also ln cases where no amendmeots have been proposed ln AppendlX B to the AN-WP but where the safety recommendations can be related to ('X l S t l ng tex t s . (12 pages) RAC/ SAl~ Appendix C Page C-2L1 nÎSClISSll1l1 1'.lper 'Il). J n'Llted tü \'I-\';1'/623Q Safety Reeommendations in Secret,lr i.ll LOlIIllll'llts C-WP/870B, page 26, para 4 ------t ln areas where mi l1tary aetivitles ThE:' prlnc1pl(' pml)('dc!pd ln tllt~ flr·;t potentially hazardous to civil flight sentence 1s rt'fl('cted (n Annex 11, operations aireraft take place, pa ragraphs 2.) It ilnd Î. l 'i. A Tht, Ill'pd optimlDll functioning of civil/military expres'ied ln t h,-' "t'colld ~l'Ilt t'ne!' 1 s co-ordinat ion should be pursued. When i mpli cl t ln pi! ra g rd Il Il s 2. Il, • 1 il Il cl such military activities involve Stdtes 2.1 /,.2. not responsible for the provision of air traffic services in the area concerned, civil Imi li tél t Y co-ord ind t Ion will need to include buch States. Ta this end: Appendix C Page C-2/2 Hel{~v;lnt Text of Annex 11 Proposed amendments ------~,------~------ 2 14 Co-ordinalioD MI",«n mililary aulborlÛtS aad air InUic ~~icn 2 14 1 Air traflïe services aUlhortlles shall eslabltsh and malfllatn close co-operatIOn wllh mllttary authoriues responslble for actlvllies thal may affecl nlghls of civil alferafl ..- 2 14 2 Co-ordmatlon of aellvltleS potentlally hazard- ou~ to civil atrcraft ~hall be effected ln accordance wlth 2 15 2 14 3 Arrangemenls shall be made 10 permll mfor matlon relevant 10 Ihe safe and expedltlous conduct of Olghts of cIvil aITcrafl 10 ~ promptly exehanged between aIT 1r a fflc services unllS and approprlale mihtary unlts_ 2 14 3 1 AH traffle serVices unlls shall, ellher rou rmel} or on requesl, ln accordance wllh locally agreed procedures, provlde approprtate mlltlary umts wlth pertlnenr nlghl plan and olher dala eoneerntng Olghts of 0\11 atrcrafl ln order 10 ehmmale or reduce the necd for Inlerl"eplloru, air Iraffle serVices authofllles shall designale Jm arca\ or route~ "here the reqUlrements of Annex 2 lOneernmp nlghl plam. two-way communlcallons and pOSlllon reportlflg apply 10 ail nlghls 10 cnsure Ihat ail pertinent data le; avallahle III approprlale air lraffle services llflll' e;pl'llflcally for Ihe purpose of faetlltaltng Identlfl l.lIlon of llVlI atrcraft ~ 14 l 2 Spel"lJI pro...:edures shall be t"'irabhshed ln ordcï to emure that ,1) ,lIr Ir,lrrll ,cn'Ile' unit' arc nOllflcd Il 3 mtlllary unit oh\ef\'r\ Ih,lI .ln alrerafl "llIch IS, or mlghl be, a cl .. iI alrCf,l!t I~ approJlhmg, or hJS enrrred, any area ln "hl(h Illter~-epllon mlghl br_orne neeessary, bl ail po\slhk dfort~ are made 10 conflrm the Identlty of the ancraft and ll' provlde Il wllh the navlgatlOnal gUldamr ne(essar\ 10 avold Ihe need for interception Appendix C Page C-3/1 ------r------+--, Safety Recommendations in Secretar Llt COfiUnt'nls C-WP/8708, page 26, para 4 This rf>commendat 1011 ampli t [l'S the a) Military forces should, initially through their approprlate State recommendation in "lITH'X Il, 2.1 ').1 .1 hy authorities, liaise with StatC's and rcferring ln i nit 1.11 1I.li·,Ull t hlough ATS unlts in the area concerned. appropriate St"l t' .llIt !Iollt It's, whlch may Jncllldp ,111 t !l\l[ It 1(,:, nthPI Ih.1Il tlll' ATS duth()rltll·~>. hlt-thPIn101 1 ', Il supplements th .. ~;t.llldard III "IIIlP)' II, paragr,lph 2.1').1 hy callill~: for If.II',OIl with ATS lItlit~;. SPt' dr.l(t a!O('(H!m('nt ro AnllPx 1 l, p.lrOlgr;lph 2. l'j.). 1 011 Apppndix R. J< Continued~ Appendix C Page C-3/2 ---.------Rt' ll'v ln t TeKt of Annex 11 Proposed amcndments 2.IS Co·ordin.Uon of aerlvllltS pOltnll.lI) hllardous 10 chil Ilreral. 2 15 J The Irrangements for IWvltles polenllally hazardous 10 cIvil alrcrafl, whelhe:r over rhe: temlor) of a Slare 01 over the hlgh Se:3S, shall bf co·ordln3red wllh the appropna" Ilr traffle servlce:s luthontte:s The co ordination shall be effe:Cled early enough to permll IImely prornul~a(lon of information regardlng (he actlvllies ln Recommendation.- If the aCC<1rdance l'Ith the provislon~ of Anne .. 15 2.15.1.1 ------. organizatlon planning the actlvitie!: 2 15 J RKOIDDludldo •. - If Iltr oppropflou A TS belongs [0, or 15 located in, a 5tate Qulhonl) LI nof llaol of Iltr SlaU whtrr tltr orgamuwon other thiln that responslble for the pla"nlng Ihr ocl/vlflrs LJ locQ/rd, ",lllol co-ord",ol/on provision of air traffic services ln shou/d ~ rffrclrd IhrouI" tla~ A TS ou 0, orttY resporlSlblr the airspace atfected by the for thr alfspoct ovu tlat S(ar~ whrrr rhr organlU1fIon I.S 1 .1ctivities, initial co-ordination /ocolrd 1 should hl' ef ferted through the ATS authOrlty of the State where the 2 15 2 The ob)e-<:uve of the co-{)rdmauon shall b( to organ! zat 10n 1s located, or ta which achleve the best arrangements .. tuch WIll aVOId hazards to clVlI Ilfcraf( Ind mlrumllC rnterferenu Wlth the normal \ belong', operatIOns of 5uch aJrcraft Appendix C Page C-4/1 ------~------Safety Recommendations in Secn·tdrl.1l COl1\lIwnt!l C-WP/8708, page 26, pdra 4 c) Advance information on scheduled Anllex Il, jldf.lgr,lph 2.JII.LI n'q\l(n''l civil flights should be made that this be dorll' "in .H'Cllt l:.HlCI! \.Ii t Il available ta military units locally agre(·d procedures". Such including the allocated SSR Mode A p roc e d li r e S \.10 II 1 d Ill' e d t () 1)1' e!. loi bIll. 111-' cl codes when available. through co-ordln.lt!on Ill'twt.'en mlltt,lry and alf trafflc !,('lvicl.·!, .I\1lllorltles/ unlts ln y.l'epfng \.II th Annex II, paragraplls 2.1 /•. 1 llnd t.15.1. Sl~e draft new paragr.lph 2.15.2.7 of Annex Il at Ap()(·ndl'5 J. /; .'t Sec co 11111111 l, Appendlx C Page C-4/2 ---- -,------.----c--t- /{('I .. vJnt Text of Annex Il P roposl!d alul!llIhncn t S ------~------2 1~ 2 1 Rt('ommndIUo. - ln dntrmtnlng Ouse arronlt'mtnlJ lM followtnl Jhould bt' opplitd al rht' IcKOIIOn! or ortOl, umt's and durarlOnJ jor Iht U((lylf/tl should tH Stltcll'd 10 o\lOld closuft or r('aill" mtnl of tJlobluht'd Ars rouUs, blod:tnl of Ih(' mosl (conom/c fllthl lt'vt!J, or dt'Iays of Jch,.dult'd auerafl o~rOI/on" unlt'Jj no OIh('r opl/OnJ (''xLII, b) Ihl' J/~t' of Iht Uff 'l'OC t dtHlnall'd for th,. conducl of Ihr al 1/ ~',I/tl jhouu! tH *((11 'u Jm(J1I Q1 pou/bit', el !!.!rt'cL!-~l!!'UnlCtJl!QI) t>rlw('('n Ihl' appropriaI! fifï'SJ H Ihl, t .. ~ OU!~(,~{!-.!!!.ratr traffic suvletJ UnIt and Iht orlanlt -H 1111 Il l,,) OllOn or §i[fiOn(Jü(i,ng Ihl' oellv/lltJ shoufd br (l'',H ,d~d for uu ln Ihr ~vt'nl Ihol C1yt! aueraft cmNr tn(/~j or Dlhn unfurtu:~n etrcumjtonaJ rt'Qutrt [ duconflnllol/On of rht OCIlVIfI~JX------4--ll (,r lm!> 1 t ml!lllil t ion of uthl!r safety measure X------·------..J- 2 1~) The Ipproprtalt AT S .. u,horJllc~ shall bf The rneBns and methods ot H"P()Il~lblc for 1Il11I.lInE Ihr promu/gallon of Informal,an 2.15.2.2 88tlsfylng 8ny requlrement5 for rcgardlnS Ihe ICllvllln cxchange of i.ltorrn8tion regarding tllehts ot civil aireratt whieh rnay be 2 1~ ~ lI«ommrDdl,loD - If QC(lvlfltS pOltnflol/)' afteeted by the actlvitles shall !Je hozordOUl III CI\'II DI,rrofl talu plou on 0 (('gll/ar or CQnt/nulng bam, JIV( /01 commlf/UJ 5hould bt tslablLJhtd governed by specIal agreements. al rrqlJlrtd 10 r"5urt' Ihol Iht' r('QLI/ft'mtnfJ of 011 porlitS cOllrrrnt'd olr atft't/uoltll co-ordmrJltd Appendix C Page C-5/1 ----'1-~------.------Safety Recommendations ln 1 Sec re Lu Lil COllllUl'l\ t s C-WP/8708, page 26, par..l 4 b) ~lil1tary forces should be fully A n Ill' x 1 5. p.1 r .1 g ra phs 4. 1. 1, '). 1. 1. 1 • informed on the ex tC'nt 0 f aIl 5.:.1, AplH'lldi:-.. l, Sl'ctloll ') .l\IlI promulgated routes, types of Appencllx J It'qllirf' promulg.l! Ion of ~;uch airspace, and relevant rep,lllatton~ inform,lt ion ln ,!l'rOIl,llI! Ic,11 Illfollll.lt Ion ct nd r E' s tri c t ion s • publlc,llIOIl'> .Ind NOTAt-ls. 'JI1(' Ill't'tI fil provielf' mlllr.1ry ,lIIthorlrlt"';/lInlts ·~·1th rl'l(,v.lnt Information fs Jrnplfctt l Tl ,\IlIH'X 11, P,l ragr.lphs ï .1 /•• l ,lIlel 2.1 'l, The IlldlllH'r ln whl! Il th" ÎnforfTl.lt1on ..,110\11<1 he provldt'd WHlle! Tll't,d to hl:' dgrped wirh lllt' .ippropriatC' ArS ,llIlhoritles. Contlnued. Appendix C Page C-5/2 Hl'}l'Vlnt Text of Annex 15 Proposed amendments CIfAPTEI~ II. - AEHONAUTICAL INFORMATION PUBLICATIONS ~ ( flnlt'nl .. 4 1 l ,\, 1I\II,IIIIll,II Illlorl1l.lllOIl l'lJhlllilllOI1\ .. hdll ,11111.1111 llllrllli 1III1Irlll.lllOl1 rel.lIlll!! Ill, Jrllj arr.lf1gl'u IlIlIler, 111I\'l' \lIhl"I' t'Il IIfl1l'r.1Il'(j III Appl'nul\ 1 I!I,II .ll'pe.1I Ifi ~(}IJl,1II fi Pl', t'\lL'pl Ihal \\hL'/1 Ihe: AIP. or \Olllllll' (II Iht' -\11', l' ul'\I!!lll'LI ha\llollI) 10 falilualL' IIp<,r.IIIIIII,II lI\l' IIII/I!'III. Ihl' prl'lI'>C forrn.11 .11 al ,trrJngl' IlIl'lll fIl,1\ hl' Il'fl 10 Ihl' Ol\lrellllfl (lf Ihl' ~1.lIr PIO\ rLled Ih.11 .111 .ldeqll.lll' 1.lhle (II "IIlIl'lll, " Illdudl'U ·1 1 1 1 Rt'(f1I111lU'ndallon- -1 ('{()I/U /1 fI( u/ 11/ 1Of I//(/l/ll/I /'/1/1/" ,Ilil/l/l IhIJu/d, /11 ut/dlT/ol/, «(JIIIUIII (/lrr('l// 11/111111/11//(/1/ n'/a/lllg (I) {I/(II(' 1/1/1/('( /1 enlllllNU{l'd /1/ 1/'/"'IIt/1l / {ha{ (//'/1/'(/' /fi II{///( {',/J(' CHAPTEI 5, NOTAM 5,1 OriKina.ion 5 liA NOTAM shall bl' orlglnall'd and lssued promplly "hcnt'ver Ihl' InformallOn 10 bl' dlssemlnall'd 1\ (If a Icmporary nalurr, or 1\ "sued undl'r Ihe AIRA( \)'~Il'm. or would nOI be made 3\allabll' wllh sufflclenl rapldllY by Ihe IS\UC of. or amendmenl 10. an AIP. ~ 1 liA NOT AM ~hall be ortglnated and 1~~lIed \\ l1el1e\er Ihe foll()\'1ng Informallon " of dll~cl opl'r 3110n31 \Igfll rlcanet" pre\encc: of hazard~ "hlch affect ail navigallon 1) or other activities (lI1cludang obslacles, mlhtary e~erclsesJ dlsp ays, races, major parachullng eVl'nl~ outslde promulgated slle~). Page C-611 Appendix C ------.------,- Safety Recommendations ln C-WP/8708, page 26, par.l Il ------~------~------ (See orecedin~ r~ge) ContinuedJ> Appendlx C Page C-6/2 Relevlnt Text of Annex 15 Proposed amendments c; liA 1''1'1',1{ '). - NOTAH (Con t ' d • ) 5 2 Rrl:ulal('d ""Irm (AIR -\( , 521 NO r A"I L(lrllCfrnnr Ihl' lIflUITl\lan,es 11\11.'<.1 ln AI'Pl'ndl~ J, l'MI l, \h.11I hl' (HI~III.IIl'd Illlder Ih~ rcgul..lled \"Ie/ll (.-\IRA(), 1 l' h,l\lllg c\I.Jtll"hrncnl \\llhdrallalof \lgrllfll.HlI dl.ln~l'\ llP(1(1 .1 \cr le\ (lf lOl11m,)r! rffl"Lfi \(' JJle\ .11 Ifll('rl.11\ o( 2H d.I\\ Illdudlllg 1" bnllar\ 19R7 Jhl' NO!A" \Il.dl hl' oriFI1I31ed and JI\lnhMd h\ Ihr 1\1<' lJlIlI.1I 1e.1" 42 d.l\' ln .Hh.lIlLl' (lI Ihl' .:1 It'Lll1e dall' \\lIh 1Ill' (1llletllll' (\1 rl'.I,IIII1!! fl'llplcnl l oll 1..-;1'121' d3\\ III ,I,h .HIL(' (lf Ihe dft'dllt' Jall' ,lI1d 111,' IllflHfli .. 1,111 !\tHlflCd Ihnt'III LIlJII 1101 ht' ,h.ln!!l'd funhL'f lor JI :~J,I Jnnlhef 2K d.111 .tllcr Ih(' dlt-,llll' d.lll' lInle'L Illl' "f,Un1\J;lnd' IIlll'II.: APPENDIX ] - AERONAUTICAL INFOR!>tATION PUBLICATIONS ()C\UlpIIOn of arr 1ra 1tiC ,erVlces provlded and, where nele,>\.tr), gr.1phll pOrlr.I}.11 of nlglll Informallon rl'glom, llllltrolkd a!llp.ICCI, adl lIor,' area~, deslgnalcd arl'as and dC\lgn.lled roui el .1\ dctJlled ln 5 3 1. 5 32, 5.3 3 .\IIt! " "\ 4 APPENDIX 3 - INFOR1-tATION TO BE NOTIFIED BY AIRAC NOTAM Appendix C Page C-7/1 Sdfety !{econuucllddt ions ln C-\-IP/8708, pdge 26, pMll 4 ------ ) Direct communications bet~een Th 1 5 r e c 0 mm e n Il il t 10 Il I~, 1 0 11 0; 1 ~, t (' 1\ t vIt h mll1tnry units and the approprlate the Stilnda rds t li AIIIJ(' x Il. 1':11 '1I.~rll ph', ATS units, not using regular ATC or 6 , 2 • 1 • 2 • 1 il) and (,. '} • 1 .;', Î "), .11 \( 1 ~ 1 t Il the emergency frequenc1es, should the ReCllnlmclldcc! 1'1,)( t 1 CI' fil Allf\('X Il, be establlshcd for the exchônge of p .\ See ('011111111 l, Appendix C Page C-7/2 ------r-.------ HI']I'" Inl Tex t of Annex 11 ------_._-- Cllfll'HH (l, - Alr{ THI\ITTC SI'ItVrCI:s rUr)IIIHl.lrltll!; Pli{ Cmltll!~IICflTlOIIS (,] 1 l ((lIlIlI/ltI/1I111/0'''' /11'111 ('('" (lIr /rafftc SUI'/CI'! 1111/11 ulld OIhl'r /111111 (, l ! 2 A fllglll mfollllalHHl c~nlrc and an :H~a lO/lllOI tr/llrt' ~h,11I Il,1\(: (,'(IIIlle5 for commUlllc.lIlons \\lIh Ih~ follo\\lrlf' 1II111~ rllOI Ilhul! a ~Cf\lce wIIIlIU Iheir f('\pn /lV(' .1('.1 (If fl'\(lOII\ll>illly .1) ,IJlJIJ()JI/I.II(' 1111111.11\ 1111111, (, ]. 1 ]. 2 Ail 3pprO.llh Wlll/ol office and an acro dlollle lIHlIrO! lowcr Illall have faullilcs for commun! l.IIIOIl\ \~lIh Ihe (OIlO\\llIg UIIII\ pravldlng.1 senlcc \\IIII/n Ihclf rc\pCIIIIC' ;11 ca of le~J1on\lhIlIlY .1' dpploprl.llc IIl1hl.lI~ IlUII~, (, l 1 2 J 1 hC' (OI1I1III1IlIL.IIHHl f:JLlIIIICS Icqutred undcr (, 2 1 2 1 .1) ,IIlU 6 l 1 l 2 JI Ilia Il Il1duuc prOVISIOI1~ for 1.1[11<1 .111<1 rdl,ltlle COIIHIlIIIlIl.lIlOll\ bClwC'ell Ihe aIr Irafflc IcrVlrn 11I1IlllllllCflH,"d and Ibf 11lIhlJfY unI! (sI respollSlblc for lOIlIlU! of InlcIlC'plHlU opelallons wllhin Ihe area of l ell'llll\lhdny or 1he:- .111 IrJUIL ~Cf\lleS IIn)( {Ed,Note.- Sec pages 3 & [. for complete text of current Z 1 \ 2 1 HrcOInrnrntlallo. -- ln dfll,,,,,,ntng Iht'sr provbion~.1 ''''/l''I/t'n'I''':I th, fo/lllw/tIK l!Jou/1i f~ appllt'd 1 J o!..,fl.· •,'m"""f~' ,If,"n !!!:/I!rf!'._ I~C..J!J!.P~oJ!!Jl![{ IA:ITl !.II '_ '"~I' !l'] GIf l"'Ifi, !"fI'las unit and /ht' organlt, , "''' '" fir!ïU, /1 "au, Ij,ix-Ihr actlv'/In should ~- 1'"",,1• .1 (,0' ulr ,,, Iht' (1'(nI l''al CIvil alferall (mrrg' ..,,, /1'\ li' (I,h.., l,n{"'(Il... n elfCl/ms/aners (r ------~------1 Safety Reconunendations in Sl'cret,ll-int COllllIIl' 1\ 1 ~ C- WP / 8 7 0 8 , pa g c 2 6, P ,1 r.l 4 ------ Hl1itary unlts should be equipped This recummpnd',ltlon 1s Ilot rt'flt'cted ln e) IIny of tlJ/.' clIrrt'!lt ICAO provlsi(l/ls. Il to monitor appropriate ATC frequencies to enable them to 15 complCt11Plltilry to tht' rpqulrt'lIlC'llt'i ln c) and cl) ahove d('si~'Ilt''' ro flldlltilte identify radar contacts ~lthout 1 de Il tif 1 C f) If challenges by military unlts on This n'comtnC'l1datlon rpfll'clr, Il 1I5:tp.t· (Jf the emergency frequency 121.5 MHz 1121.5 ~lIIz ~hlch 1<; not I.JlPcUlcnlly become 1nev1tablé, these should prov lded for ln Annpx 10, VOltllllt' l, follo~ an agreed message format Pdrl II, parl1r,rllph '1,1.).1.1 but mlly ~lth content operationally . have to he arcppt('d a~ .1 la·.t rt'sorl. mean1ngful to civil pilots. Sel' dr<1ft dlnClldcol'llt 10 AllI/l'X 10, Vol ume lat APP':'.!Id ~ x___ ~. 1< Speclftc,ltioll,) reyardlllg tht' lorrn ;111<1 con t e n t () f m/, '> '; il f: (' $ tl 1111 '. In 1 t t l' cl h Y ID 1 1 1 t a r y Il n i l!, 10'0 Il J d Tl e f' d t n bl' devf'loppd throllp,h co-ordinall on ~f t Il the appropriât!! ATS .llIthorUJf" •• il Sec CollIllln l, Appendix C Page C-8/2 --- ~------...,------ f{"!PV'III1. Text of Annex 10, Vol. l Proposed amendments ------'-- 1'1Irl fI RAD 10 FRr:0U ENC r ES CIIAI'TER 1•• UTILIZATION OF FIŒ(}UENC LES AnOVE 30 MHz Il \ 1 I."'Cfl:('nlY I/u",,,rt 4 1 ) 1 1 Iht ullngcllty th.lrlucl (121 S Mlfl) \hall bc \J\ccI o/lly rClr r' /ltlC/ll Cfllugcnly PUIPO\C\. a\ !llo;HJly Ollll,uccl 1/1 llor lollllwl/lR .1) ICI [1I1I\ldt' ,lllt,lI tlo,lllIltl helwccrl aller .. ri ln dl\llC:\\ or 1/111 'l'llll Y ,11111 01 rrllund \lallOI1 whtn Ihe 1I(11rnai l h ,.. "" hait hl'i/li' 11111 Il l'lI ror olllCI .lIru.dl. Il) 1" (Hllvltll ,1 VIti tllllllllunllallOIl lh .. nncl hClwccn ,III' 1." 1 alld .Il r IIdrlJl1It \, nOI nor fII.dly U\CÙ hy 1111er /I.JlII·n,oI.III \('l'''l\, IIll I\C of .In clllcrgcl1Ly lOIlÙlllll/l .11 1\11'1:, t) \0 plovrell .1 li 11111111111 VI Ir U)(IHlIUrlll31lUn chanllli h('lwu'lI .1111 I,lfl. rlllrcr uvrl IIr JllIhldlY. and hclwern \\lt h a lIua Il ..IIHj \Ur r.llI: \cr VICC'. Illvolved III corn filon \1.lItit Mill Il'IIlC opcrallOn\. pflOf III lhanr.lfll; .... hen IH',(\\.HY ICI Ihl' ,I('proP'I.IIC frcqllcllcy. d) 1(1 IHlJ\ldc ,III 1:lolllld lIH1HIIUrllcdlioll wllh 3rru.rll "hln allb"llIc t'l"lplllrlll fallure prevenl\ lloe U\C or Ihe Iq!lIl.ar 1 h,lIl1ll h, e) III III oVIde n frcqucncy channel ror Ihe opcrallon or slIl\I\al radlll cqlrlprmnl or emcrgency IOC3110n beacon --- allerarl ([. BA). ftnd rOf cornmllnicRflon bt-Iween \lII\I\3Il1all and allrrarl cngar,ed 111 scarch and reseuc opel JIIOI1\, 1) III provldc a Cnrllllll)n vllr channel for communlcallOn hrl\q'cn CI\rI allerafl and InlercepllIIg alrcrarl or l"ICleepl CO/lllol IInfls and bel .... rcil CI'" or rnlcrccpllng g) to provide 8 channel for .",clall ,Incl al/ fralflc scrvlce~ IIll1ls III Ihe c\enl of communication between Burface units Il1lelcel'llon of ,he CI\l1 aflerafl and aircraft for the purpOBe of ------f- warning the aireraft of hazardouB "'''Ir 1 - 1 hl' flll' of 1111' !u'qllrnCl' III J Mllx for Ihe ,'"fl'(llc' (JIIlllllcd /II e) Il/JO'I If to /l, '1\ Indl'd If Il Inlu!nt'J ln situations or 8Bsistlng them ln the •lIn 1101 IIl1h 1101' l'l/llIt"''1 I! ,\'''1''} - 1 hc' c /lfT,'nl Rlldl .. RrKIn'lllJons maltl' l'fO\'lJlOnJ ,h,lt 110,. 111'/"/1.:11111.1/ r/Tft'fgrl/,)' ffrl/urn()' III _\ '\fI{~ may .,/", />t' 1/1/'./ />1 ml't>Ji(' lIilIJIJn5 IJ{ Ihe ,\farrllme ,\fotJlII' \,'fI'il C', 1/1/1''':: 'Ill ,",,)\/(,,, tl) CO/TI"flllI/(otC (111 ,nif frt: ~·lIrrl. )' t,,, \.7Ic Il ""f:'11I'"\ "Jlh jtallOns o( tl'( Arf'1naullcal ,,,(I.~,/c· .\1'/11.1' (lIN \91, .'~'~\l a'ICi 2991) Appendix C Page C-9/1 Safety Recommendations in Secret.ui.lt Comment!! C-WP/8708, page 26, para 4 ------ The princll'le l'mhedded ln the first g) In areas where such mi li tary actlvities occur, information sen t ence i s re fIer t ed ln tlH' cllrrent necessary for the safety, provisions of Annex }'>, IoIlllch .,pecUy regularity and efficiency of air chat the nt'ce<;!.ùry InformJtlon shllll he navigation should be promulgated in promulgated ln uf'roll.tlltlcal Information a sultable forro. The information publications and NOIMI .... 11H' second should contain the type uf sentence IntIOd\lCl'~ rt'C)ulrt'mcnts \.Ihlch challenges that mlght be are imp) Ic i t ln thr current provi!;1ons transmltted, and should include ln the particuldr clrcllmstance,> instructions to pilots of civil exisllnr. In the CIIlf ,lreil. "l'l' .dso ai rcrafc to moni tor the emergl'ncy pardF!raph f) dhoVl'. frequency 121.5 MHz. Contlnued. Page C-9/2 Appendix C ------. ------.------'f------/(!'lt!VJllt Text of Annex 15 Proposed am~ndments <:lfAPTE:R J GENF.RAL J 1 Rt\Jltln\lIJ/lilln and "uncllon~ .1) '"IH Ilk.H1 arloll"IIIIL,.1 IItro,malloll ~CI\'ICI.'; or h) dl'fn' 14H11 ollr or more olher <.. Olllrallln8 Slale(~) rOf, Ihe r'lI\1111I11 pl .. JOIIII \l.'fllCe, 01 Note 1.- Annex Il prescrlbes the () dl )q' ,II,' 1III ,Ill 1hOIlI) r0' 1he plm 1~1I111 or 1he \1.'1\ Icr \0 respons1b111ty of the approprlate ATS ,1 11011 1''''lIlIlIlel'l,l) "f("llY, p'()'ldcd lh(' Slandald~ authorit1es for in1tiating the ,llId Hllllllllllllllkd l'r,llIllc\ nf Ihl~ Ann(''! arr ad- promulgation of information regardlng l'!U.lhll 11111 Llctivities potentially hazardou5 to civil aircratt, .... hether over the Ih,' ~1.1I1 ,1I1I,r'II,d IIldl! lelll.l/n It,pon\lblc (01 Il,, terrltor-y of a State or over the high IIlr,lIl1l.111(11I ru"h"Il'd seas. 1 1 1 1 \11 .1('IOII,lIll1cal IIlrllllllJIIOn ~rf\ Ile \11:111 (nllet l ,,111.111, ('(III and puhll\h .lrroll:lIIl1lallnfOlrnaIl0n Note 2.- It 16 recognlzed that in 1111" '"IIII!' Ihc CIIIIIC Il'IIIICH) 01 Ihl' ~Ialc .1\ v.cll al arral exceptlonal clrcumstances. e.g. when III ,,111.11 Ih.' '->I.lll' 1\ ,npollllhlc rOf .III IfJffll ~Cf\IIC, the responslble aeronautlcal lIlIl,,,h 11\ 1,'!llllI' .Jllli Ihll Ih.dl Illdudc, information service ls not funct10ning normally. the responslbility for .1) Ih~ l'"p.II.III,11l 01 Al'rOnaulIl,JI In(orrnallon l'11h11 originatlng NOTAH regard1ng actlv1tJc!. 1,1110 11\ IAII'). ' potentlally hazardous to civil air-cratl I>llh,' ,"11:111.111111101 N()IAI\I. opeuting outslde the territodes of '1 1111 "'I~IJI.III"11 01 Â,'lllllaUI"allnrclnldllll n ClflUIJII States. !Dsy have to be assumed by the <------+.~ aer-onaut ical information service of a \ 1 1 1 \\lIl'!l' ~,1 h01i1 \C, \ l' n, nOI PH" IJrtl. l'fille State other than that respons!ble for ,h,,11 !ll .11.111.1111,' dlirlJl~ Ihr .... hol, pClIlld an alluafl 111/1 aIr t r 8 f fIc se r vic es. In suc h IIIrhl III Ih,' MC.I 01 '''IH)ll\lllIh'\ 01 an arl(lnaUlllal cl rcum9tances. ft is expected that tlll' 111""'11.'111111 Il'''lC plll\ a p,1I0t! 01 al Icall 1"0 hOllr~ appropriate authority of the State "l'IlHI .'lId .1110 ""II P(floJ l he- \Cr,llC \hall ah,1 be: becoming Bware of the potentiai hllz,,," al.III •.!.11 .11 '1/1 Il nlh" 111111' .11 111.1\ be ,cqllcsled h) an apP'lll'lI,II,' l"IHII,d ory.lnI/JIII'n will take the initiatIve ln co-ordination w1th any other Stale aftected. \ I:! An ... roll.'l/lIldl rrlfn,mallon ~Cfllll.' chail, III .HldllIlHl, 0111.1111 1111111111:111011 10 cnable Il 10 plo\lde p,e rlir lll 1II101l1l.llIon \CII'le- and 10 llIecllhc nad (01 rn·rhllhl ,nr,,'I1I.lIl1lJl .1) 1'0111 Ihe .JClIIII.llIlllJI IIIlormalion \el\llC\ of olhcl "'IJllI, .11111 hl 110111 OIher ,Illtlll" Ihal 111.1\ be I\allablc ,S"fI' -_ 0111' \/1, l, \/1"" r 1\ l''r ll/hjc.1 Ilf U 1"/11 'Will /1' 7 1 1 ) Page C-10{1 Appendix C Safety Recommendations ln Secrctaridt Co~nents C-WP/8708, page 26, para 4 (See preced ing page) Contlnued~ Appendlx C Page C-10/2 * - -*------,- :"'ll'lJdllt /,--t of Annl'x ]1), ------V() l'IfTl(' 1 1 Pronosed amendments ln --.------~~;~~~~~~~~~_l~------s--ta-t-e--l-e-t-t-e-r--A~~--7~/~1~.~3~.~5~3_-~8~8~/~93~ CII/ll'Il H '.i III f{ONAlITICAL "10B!LI. SERVICr: ~ ~ ~ 1 (ommunllUlwnl hOlrh 'I(OllfJ of U"", • , , 1 1 Duronr fl,Qhl. ~lIoiah SI3110nl Ihall ",J'l'la", "'aHh 1\ Irqullrd h, Ihe arp'or"Jle ÂUlhorll) Jnd shJII n'II cC.I'r """h. r'(rpl for rrHO", of urrl' ","h\lUI,o(orllullf Ihe arronaulleal \11\'0/1111 conel/ned ~ ~ ~ 1 1 1 ÂIlOlli on lon~ ,"cr "'~'rr n'~"I\. or 011 rll,hll o'er drl',"~lrd arr." o'er '" '"lh Ihr ,JrIlJr\ ni \ur\ 1\ .. 1 r.ldu) rqulpmrru or cm,,"prnc\ 10".1110n b .. l ... OIl - Jill/ah If.! liA' u .rquI/rd ,hall wnllnUOII\" ~ulld Ihe "ur cm ... r,rn,, frrqu~m' I~I ~ ~Hli nccrl for Iho)c pC"Cld, .. hen ""'JII d't (.111 ',n[.oul \ClmmunOC:JI,on. on olher \'HF .h.,"nc" or f..b..rn 'I/borne .tl.I.l!!121!lt' lLmll':lI,nn 01 1,("LpII lue le te dUlln do nOI 1000r mil l,muhJm OUI IUJrd'n~ of 1'" \J Channel, ~ ~ ~ 1 1] Re,ommrn".'"," - Aorrrofi on 1"8h/l o/"n Iho/l Iholr Il'r, 'fit li on 1 ) _, 1 / 1 jhoulrl (onllnuor"/r ,"oJrrl 5.2.2.1.1.2 AircraCt shal1 continuous1y guard Ihr 1/11 cmrfKrn" jfrlj"rnr, I)/' MH:. flctpl IUf Ihou the VllF emergency frequency 121.5 MHz in areas J~"ud, "hl" Olfe fdl' 111' 1 urT Ilng Oui ,onlnrunlCOllOnl tI" or over routes where 8uch a requi rement has tfI"(" 1/11 ,)wnnr/J 0' "J'rn alf/J{)"1f ,"qU/pINrnl ImlllOllOnJ been establ1shed by the appropr1ate authoritv. Ilf • th 41'11 il",,,, 41011(1' prrnlll S""lIllunrOuJ "J,udinE of Ih (J ,Irunnr/l 5.2.2.1.1.3 RECOMHENDATION.-Aircraft on f1igh other than those spec1f1ed in 5.2.2.1.1.1 and 5.2.2.1.1.2 should continuously ~uard the Vl-IF \ J JI IW. Ih, UIC' 01 Ihl ;111 la ~II "Hr coon eOiergency frequency 121.5 MHz exC'ept when rnun"~II\JII\ d'.lnnrl IhJII er!\Uf\ Ihll .. JCQlIJIC "'Jllh \1 interrup~ed hv cockpit dutles. rn;a'"IJ1ned ,Hl dOIFllJlctI 1\ T ... foc"ue, '. Ihe frr4ucliQ 01 Ihe ;a,ronJ,,",~1 cnt,IFenl) d'~lIl1d. Jnd .ln~ olhcr maOlJaiUrv '" 31" h (,r"\ll:lh,I('\ 4 Page C-11/1 Appendix C ------~------Safety Rt!CI..1Uunenddt tons ln St.'l' t l' t .. ri d t CUIIlIIII'II ( " C-WP/8708, page 26, pdr.l 4 ------+------ h) To assist identltication hy Thl!> rel llmn1l'lld.lt iOIl l'rt''''lIppn~,I''' th.lt electronic emissions, pilots of d1reLlfr ,Ht' ',lIir,l!dy (·(/lI1pPl'd. civil aircrafl should ensure HOI.'('ver, s\Jch t'qui l'ml' Il t 1 ~ Ilot " continuous operation of illrbornr tlll 1 vU!"',.11 1 l'qu j 1 1'!T1I'1l (. rhl' weather radars and radio r p, (l nH1l t' 1]( f .1 ( 1 (\ n i <; '0\ Il) Il II' III (' Il (.1 1 Y ((1 t h t' altimeters. Ilmltl'd rt'qulrl·!1lI'Il('. 111 AllIlt'X 6, Part l, pdrd)~r.lf'h!, 6.11, /1.1').1 ,111<1 h.11.:' .Illd AIlIH''( tl, l'''11 Il, l'dldgrdpli b.9,1 rl'):,,[din~: 1 dl[ Id):I' of 1.I1'.I(I1t'[ raddr .Jllel !,lllUlld p[oxlmltv I.Idlllfllg ~ ys t l'In ... , ""h il li IIH IIJd!' r .Id 1 () il 1 r 1 ln 1:' ( t' r .... Contlnued~ Appendix C Page C-11/2 ------~------ P~oposed amendments ('IIAI''I'ER (,. AEfUlf'LANE IN'lTRut1ENTS, I:I!IJ J l'MI~NT AND /'1./ (;!IT DOCUHUJTS (, Il J'rt'\\IHltrd arroplane\ "hen carr)ln!! pa\\t'n\:en - V. ralher radar RI'( (lIn1nt'ndlillon - l'r,"\\I'flZer/ a/"op/unt'} H hen carn III/: /mlll'n;:/'" })wu/d /)(' t'llitl/'fied H I/h operalt)'(' Hi'alher radar H II/'n/'II" lue h aNl/jI/anC! url' !JI'/Tlg oflaaled 111 area} H here Il/und/'rHo",11 or (llhl'r pOICTlllalll ha~ardoul H'ealhN (Ol1lh'lUn \, r(';:arcll'd al (/t'lI'( l 6 I~ Turblnt tnglnt IItroplllnr\ Ground pro),lml!\ ,.. .rOlng 5) s!rm 6 15 1 Aeroplanes for ... hlch the Indl\ldual cerllflcale of alfworthlness y,a\ ftrSI Issued on or arler J luly 1979 Ail Illrlllne englnc aeroplane\ of a n,1\lmUm cerllflCa!ed lake-orr mas\ ln e,ce\~ of 15 000 kg or allhomed 10 carn more th.In 30 paHengen shall be equlppd y,llh a ground pro\Unll} "arlllnf S) slem 6 I~ 2 Aeropl.1I1t\ for ",hlch Ihe IIldl\ldual lCrlillCale of alr"orthlnCIS y,as flfs! I\Hled hefore 1 lui) 197Q Rtcom,mndlillon - Ali lur'Jlne engin!' aerup/anes of a f1I 6 15 3 A gr0unJ proxlmlly "armng \yslem shall be rJpJhlc (If pros Idln~ 31110mallcally a lImeh and dlSllllclIve "JJnlTl~ III Iht nlRhl .:re" \\hen the- aeroplane IS 111 pOlenllall} h.llJfdo\l\ prt'\lI11I1) 10 Ihe earch'~ surface Appendix C Page C-12J1 ------~------Safety Reco!IUUendations ln Secret.\rLll COllll1Wnt s C-WP/8708, page 26, pard 4 (See preCedlng page) (St'L' 111".'( l't! 1 n\~ Il.tgt') - E' D Continued. Appendix C Page C-12/2 ------~------,------ Hl'll'v.mt Text of Annex 6, Part II Proposed am~ndments ------cH/d'TER li. A EROPLANf: INSTRUMENTS AND EqU l PHENT 6 9 Turbine enllM uroplanH - (;round proxlmllJ .. amln, 5) stem 6 9 1 R«ommrndallon - A 1/ turbine t'nglnt aeroplanes of a maxImum ct'rujica/ed lake-off mass ln excess of 1.5 ()()() kg or aulhofll.ed la carr) mort than JO passengers should b, t'qulpped wllh a grounc proxlmlly warntng sysrem 6 9 2 A ground proxHTllly "" arntng syslem shall be <-apable of pr 0\ Idlng autornaulalh a umely and dI5Ilnc{J,e warnlng 10 Ihe nlghl cre\A, when Ihe aeroplane 15 ln pOlenlJally haJardllm proXlmJly 10 the earth's surface C-\./P/8803 APPENDIX APPENDIX 1 REVIEW OF SAFETY RECOMHENDATIONS CONTAlNED ON PAGE 26 OF C-~/R70~ Safety recommendations Comments In areas where milita~y activities The principle embeJd('·l in tilt> firsl potentially hazardous to civil flight sentence is reflpctPd in A\1Iwx 11, operations airc:Laft take place. paragraphs :? .14 and ~.I 'i. Thl' nl't'd optimum functioning of civil/military expre'lsed ln the sec0nd senten('t~ i., co-ordina tion should be pursued. When implicit in pélragrdph!, :' .1IL l ,md such military activities involve States 2.14.:' . not responslbl~ for the provision of air traffic services in the area concerned, civil/military co-ordination will need ta include such States. To this end: a) Militar) forces should, initlally This recommend,ltlon ,lmpl[! l,", rtll' chrough their appropriate State recomrnenddtion in ,'Iln!''' 11, :.1',.1.1 h" authorities, liaise with States dnd referrinp, to inlt!.1l lLI!',(ll\ thrrlll)',h ATS uni ts in the area conce rned. apprOprl inserted after u 1n fc)rm"d un". (,-'.,/P /8803 .t-.PPDiDIX Page C-14 Safety recommendations Comments c) Advance lnfor~ation on scheduled Annex Il, paragraph civil fllght& should be 2.14.3.1 requires made that this he avallable to 1Il1litary clone "in accordance with units locally agreed jncluding the allocated procedures". Such SSR Mode A procedures would codes Yhen available. need to b~ established through co-ordination between military and air traffic services authoritles/ units in keeping with Annex Il, paragraphs 2.14.1 and 2.15.1. The intent would b~ clearer if \lOrds \oI@re added to the effect that military units concerneè would take the initiative request ta the infonnation required. d) Direct conmunications between This recommendBtion military units alld the is consistent .. ith appropriate the Standards ATS units, in Annex Il, paragraphs not using regular ATC or the emergpncy 6.2.1.2.1 a) and 6.2.1.2.2 frequenc j es, a), and with should the Reco~ended be established for practice in Annex Il, the exchange of paragraph 2.15.2.1 real-time flight progress e). 11: erophasizes information, the need for real-time delays and information ca~unicatians to resalve problems on non-scheduled flights. concerning identification of civil airerait. l' ) Miliuny units should be equipped This recommendation to moni tor appropria te ArC i5 not reflected in any of the curren frequencips to enable them t ICAO provisions. to is camplementary Ir idpntJfy radar contacts ta the requlrements without c) and in communication. d) above dec;igned to facilitate identification of civil aireraft. The intent would be clearer if the text afte r .. frequencles" 15 amended ta read "to assist with identification of radar contacts whieh are not in direct commun Ica t ion ... f) If challenges !ly mllitary units on the eroe This recommendation rgency f requency 121.5 MHz reflects a usage of become 121.5 MHz which inevitahle, these should is not specifically fol1ow provided for in an agre,,-,d message format Annex 10, Volume T, Part II, paragraph with content op~rationally 4.1.3.1.1 but may meaningful have ta be to civil pilots. aceepted as a las t resort. Specifications regardin~ the iorm and content of messages transmitted by milita ry unit 8 wou~d need to be developed throLgh co-ordination with the appropriate ATS authorit1es. Page C 1 b 1 Safety recornmendatione Comm P Il t fi g) In areas where sueh military The principle rmbeddpd in the first aetivi tiee occur, information sentence i8 reflected ln the curn'nt neeessary for the safety, provisions of Annex lS, ~\lch sppcify regularity and efficieney of air that the necessdry information shnll hl' navigation should he promulgated in promulgated in i1('r,'n.llItfcal inf<)rmtlliun a suitable forme The informption publications dnd NOTMfs. The second shculd conta in the type of sentence int roducf's [t>qui [t'ment s wh tch challenges that might be are impliclt in the l'urrpnt provision ... transmitted, and should inelude in the particul.1r circumstances instructions to pilots of civil existing in the Gulf ..lrea. St'C al"o aireraft to monitor the emergency parclg raph f) above. frequency 121.5 MHz. h) To assist identification by This recommend.ltlo11 1 .. supplpmpntary III eleetronie emissions, pilots of the limited requiremPllts in AnllPx h, civil aireraft should ensure Par t l, pa rd p, r éI phs 6. 1 l, fi. l ') • 1 a Il d continuous operation of airborne 6.15.2 and Anm'x 6, Pan TI, p.!ragl"dph weather radars and radio 6.9.1 rrgarding cclrridgl' of w('atlll'r altilIIeters. radar and ground pro'( 1ml ty wa rn 1 n~~ syslems, whi'_h Include r,ldl0 altlmeters. - END - Appendix 0 Page 0-1 INTERNATIONAL COURT OF JUSTICE APPLIC1\TION INSTITUTING PROCEEDINGS filed in the Registry of the Court on 17 May 1989 AERIAL INCIDENT OF 3 JUL y 1988 (ISLAMIC REPUBUC OF IRAN v UNITED STATES OF AMERICA) 1989 General LISt No. 79 J. THE AGENT OF THE ISLAMIC REPUBLIC OF IRAN TO THE REGISTRAR OF THE INTERNATIONAL COURT OF JUSTICE EM8ASSY OF THE ISLAMIC REpUBUC OF IRA"I Agent Bureau The Hague 1'" THE "'AME OF GaD 17 May 1989. On behalf of the Government of the Islamic Repubhc of Iran, and in accord· ance wlth Article 40, paragraph l, of the Statute of the Court, 1 have the honour to nOllfy the Court that the Islamlc Repubhc wishes to inltlate proceedmgs agatnst the Umted States of America The Islamlc Republic requests that thls Court determtne on appeal from the decision rendered on 17 March 1989 by the Councll of the International Civil A\1atlon Organizatlon ~hether the United States has violated the ConventIOn on International Civil AViation and. Inde· pendently, whether the United States has vlOlated the Convention for the Sup pressIon of Unlawful Acts Agamst the Safety of CIVil AViation. through the United States actions wlth respect 10 Ihe shootJOg down of an lranian commer· CIal alrhner. and. If 50, the amount of compensation due. The (acts and conten· tlOns at Issue JO thls proceedmg are detailed JO the Appllcallon attached hereto. ln accordance wllh ArtIcle 4Q of the Rules of the Court, the Govemment of the ls'amlc Repubhc of Iran wlshes to JOform the Court that Ils Agent will be the underslgned The address for sen'Ice to the Agent fot the Islamlc Republic of Iran IS. Agenl Bureau of Ihe Embass) orthe Islamlc RepublJc ofIran 10 the Netherlands. Wal· decl Pyrmontkade 872, 2518 JS The Hague (SlgMd) Mohammad K EsHRAGH. The authont)' and signature oi Mr. Mohammad K. Eshragh to instltute the present proceeding on behalf of the Government of the Islamlc Republlc of Iran is hereby authentlcated (Slgned) Mohammad T MOAYED. Ambassador ,.. •• _ ~ n ... _ \.." ...... r ,~.., "" Page 0-2 Appendix 0 Il. APPLlCAT10N INSTlTUTING PROCEEDINGS IN HIS EXAL rw NAoME 1 have the honour to refer to Articles 36 (1) and 37 of the Statute of the Court and Mlcle 84 or the Convention on International Civil AViatIOn of 1944 as amended ("Chicago ConventIOn") in arder la appeal from Ihe den sion rendered on 17 March 1989 by the Councll of the Inccmallonal Civil AviatIon OrgamZ3tlon. 1 also refer ta Artlck 14 of the ConventIOn for the SuppressIOn of Unlawful ACIS Againsl the Safely of Clv1l AViation of 1971 ("Montreal Convention") The Islamlc Republlc and the United States are parties ta bath Conventions. Under the JUTlSdlction therehy conferred upon the Court, 1 hereby submlt, ln accord an ce wlth Article 40 (1) of the Sta(ute and Article 38 of the Rules of Court, the ApplicatIon Instltutlng proceedlngs in the name of the Govemment of the Islamlc Republ1c of Iran agalmt the Govemment of the United States of America ln lhls case 1. Sr A TE 'A E~ T or F ACTS This dispute anses from the destructIOn of an Iraman alrcraft, Iran Air Air bus A-300B, Ilight 655, and the killlng of Ils 290 pa'isengers and crew by two surface-ta-air missiles launched (rom the USS VIncennes. a gUlded-ml<;c,dc: cruiser on dut y wlth the United States Perslan Gul(/Mlddle East Force ln the Irantan alrspace over the Islamlc Republ!c's terTItoflaJ waters ln the Per\lan Gulf on 3 Jul)' 1988 The CIVIl passenger ancraft, whJle ln the course of a rc:gu Jarly-scheduled internatIOnal commercial nlghl, and whde oper J\mg Wlthln 11<; prevlously prescnbed and publlshed tJme and cour,e patterm, wa~ Illtc:rcepled and destroyed, wllhln ItS own national airspace over ItS own natlonJI terrllorldl waters, by two mIssiles flred by the United States war<;hlp that hJrl roslllOned Itself ln the Iranlan terTiloflal waters Il. J URISDICT10l'>i OF THE COUR T As Members orthe United NatIOns, the United States and the IslamlC Repub lie are parties to the Statute of the Court, ArtIcle 36 (1) of whlch provldes that "The junsdlctlon of the Court compflses _ ail matters s~clrlc:.llly pr0vlded for . _ ln trealles and conventlons ln force" The two (f)UntrlC:'J are raT1le~ Ir) bath the Chicago ConventIOn of 1944 (15 L'NTS 295) as amended and Ihe Mont real ConventlOn of 1971 The ChIcago ConventIon to whlch 150 ~late) are parties was rarJiïed by the United States on 9 August 1941) and by 1ran on 19 Apnl 1950 The Montreal ConventlOn ta whlch 128 )lates are partle~ was ratlfied by the UnHed States on 26 January 1973 and by Iran on 10 Jul)' 1973 Both ConventIOns have been ln force wlth respect to the IWO counlrle~ dUTlng the period relevant In Ihis case. Page 0-3 Appendlx 0 The Chicago Convention, Chapter XVIII on disputes and default, Article &4, provldes that MStlllemtnt of dupUlt5 If any dlsagreement between two or more Cûntracttng States relallng to the tnterpretatlon or appllC "1 Condemnatlon of the shoottng down of 1R 655 by the Unlled States mt!llary forces ln the Perslan Gulf 2 Expircil recognition of a crime of International character relatlng to the breach of tnternatlonallaw and legal dUlies of [the Unlled States as) a Contractmg State of ICAO 3 Eltplrcil recognition of the responsibilllies of the United States Government, and calling for e(feeltng compensauon for moral and fman CIal damages 4 Demand for the ImmedIate lermlnatlon of present obstacles, restrrc tlOns, threat~, and the use of force agalnst CI vihan alrcraft tn the reglon, JO c1udtng Councd's appeal to relevant mtematlOnal bodies to demand the wlthdrawal of ail forelgn forces from the Perslan Gulf" The le AO Counc", however, pursuant to Ils deClSlOn of 17 March 1989. JO effect dlsmlssed ail Irantan requests and IImlted Itself to the followlng and a number of general observations not relevant to those requests "Deeph deplores the tragle inCident whlch occurred as a consequence of events and errors JO Identification of the alrCraft whlch resulted in the aCCIdentai destruction of an Iran Air alrllner and the 1055 of 290 Itves:" (ltalics as ln ongtnal cf Attachment) The Montreal ConventIOn. Article 14 (1), provldes that . MAny dispute between two or more Contractlng States concerntng the Interpretation or applJC ln the CHcumstances whlch are descnbed above and whlch the Govemment of the IslamlC Republtc Will set out more fully ln lts Memorial and subsequent wntten and oral pleadlOgs. there exlSlS a dispute between the Government of the United States and the Govemment of the IslamlC Repubhc concerntng the tnterpretatlOn and application of the Chicago ConventIon and the Montreal Convention The IslamlC Repubhc contends that the action of the United States wnh res~ct to Iran AH nlght 655 has vlolated certatn prO\1S10nS of the Chicago and Montreal ConventIOns The Government of the United States has deOled thls contenlion Since 3 July 1988. the date the alTcraft was destroyed and thereby 190 lives were lsken, eITorts to resolve the dispute have been unsuccess (III • • The IslamlC Republic of Iran submlls thal under the ClTcumstanc~ and ln partlcu lar the Untted States total refu!>al of ail volunlar. methods of paCifie seulement of the presenl dlspute,the arbllrallon referred to ln Article 14 (I)ofthe Montreal Convention cannN be consldered as a Viable course of aC1lon Appendix 0 Page 0-4 Il J. THE CONTENTIONS OF THE ISU,MIC REpUBUC The Govemment of the Islamie Repubhc contends that, by it5 destruction of Iran Air Oight 655 and taking 290 lives, ItS refusaI to compensate the Islamlc Republic for damages arlSlng from the loss of the alrcraft and andl\'ldu.lls on board and ilS contlnuous interference wlth the Persian Gulf aViation, the Go\' emment of the United States has vlOlated the Chicago and Montreal Conven tions and that the !CAO Council has erred 10 J;S decision of 17 March 1q89 ln partlcular, the Islamic Republtc contends that (a) the !CAO Councll deClsion was erroneous ln that the Government of the United States' destruction of 1 R 655 and taklng of 290 Itves has tndeed \,10, Jated the Preamble and Articles 1,2,3 bIS and 44 (a) and (h) of the ChIcago Convention, rb) the ICAO Council decislon was in error also becau~e the contmu.llIon of the Umted States interferences wlth the Peman Gulf aVlallon vlol.ltrd Annex 15 of the Chicago ConventIon and RecommendatlOn 26, J of the Thlrd MIddle East RegIOnal Air NaVigation (MID RAN) Meeting of JCAO. (c) by refusmg to lccept Itabliity for the actions of Ils agent~ an de~lruC1lon of 1R 655, and by fallll1g 10 pay compensation for the 3ncraft, or to work ouI wlth the Islam le Republlc a proper mechaOl~m for delermlnallon and pay ment of damages due to the bereaved familles, the Unlled States ha,> VIO' lated Articles 1. 3 and 10 (1 )ofthe Montreal Convention IV. JUDGMENT REQUESTED Accordingly, while reservlng the right to supplement and amend this ~ub· mission as appropnate JO the course offurther proceedlngs, the Islamlc Repub. lic requests the Court to adJudge and declare as follows . (a) that the lCAO Counell deelSlon is erroneous ln that the Govemment of the United States has vlOlated the Chicago Convention, mcludlng the Pre· amble, Articles 1,2,3 biS and 44 (a) and (h) and Anne,; 15 of the Chicago Convention as weil as Recommendatlon 26/1 of the TImd Middle East Regional Au NaVigatIOn MeetIng of ICAO, (b) that the Govemment of the Umted Stat~ has violated Articles J, 3 and 10 (1) of the Montreal Convention; and (c) that the Govc:mment of the United States is responslble to pay compensa· tion to the Islamlc Republlc, ln the amount to be determlOed by the Court, as measured by the inJurJ~ sufTered by the Islamlc RepublJc and the bereaved familles as a result of these violatIOns, meludmg addltlonal financlal losses whieh Iran An and the bereaved famllies have suffered for the dmuptlon of thelr actlVltieS The Govemment of the Islamic Republlc has designated the under>lgned as its Agent for the pUrpDses of these prûceedmgs Ali commUI1IC Res~ctfully submllted, (Slgnd) Mohammad K E5HPAGH, Agent of the Governmcnt of the Islamle RepublJc or Iran