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John V. Augustin, “ICAO and the Use of Force Against Civil Aerial Intruders”

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John V. Augustin, “ICAO and the Use of Force Against Civil Aerial Intruders” INFORMATION TO USERS This manuscript has been reproduced from the microfilm mater. UMI films the t.xt directly from the original or copy submitted. ThuI, sorne thesil and dissertation copies are in typewriter face, while others may be from any type of computer printer. The quallty of thl. reproduction 1••pendent upon the quallty of the cOPY IUbmittecl. Broken or indistinct print, coIored or poor qUBlity illustrations and photographs, print bleedthrough, subsfanctard margins, and improper alignment can adverselyaffect reproduction. ln the unlikely .vent that the adhor did not send UMI a comptete m8l1uscript and there are mi.ing pagel, the.. will be noted. AllO, if unauthortzed copyright material had ta be removed, a note will indicat8 the deletian. Qversize material. (•.g., map., drawingl, chartl) are reproduced by sectioning the original, begiming al the upper Ieft·...d corner 8I1d continui"", tram Ieft to right in equal sec:tionI with small overtaPl. Photographs induded in the original manuscript h8ve been reprodUCld xerographically in thil capy. Higher quality 8- x 9- bl8ck and white photographie prints are aVllilllble for .,y photogl'8Phl or illustrations 8ppearing in thil capy for an addlticnll charge. Contllct UMI direclly 10 ORIer. Bell & HoweIIlnf0nn8tion and Leaming 300 North Z8eb Raad. Ann Arbor. MI 48108-1348 USA 800-521-0800 • ICAO AND THE USE OF FORCE AGAINST CIVIL AERIAL INTRUDERS by John V. Augustin A thesis submitted ta the Faculty ofGraduate Studies and Research in partial fulfilment of the degree of Master of Laws (LL.M.) Institute of Air and Space Law Faculty of Law, McGill University Montreal, Quebec, canada August 1998 1.V. Augustin c, 1998 e· National Library BibliothèQue nationale of Canada du Canada AcQuisitions and Acquisitions et Bibliographie Services services bibliographiques 385 Welington StNet 385. rue Wlllington Ottawa ON K1A 0N4 Ottawa ON K1A 0N4 c.n.da CIInIIda The author bas granted a non­ L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant àla National Library ofCanada to Bibliothèque nationale du Canada de reproduce, lo~ distnbute or seU reproduire, prêter, distribuer ou copies ofthis thesis in microfonn, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership ofthe L'auteur conserve la propriété du copyright in tbis thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts trom it Ni la thèse ni des extraits substantiels May he printed or otherwise de celle-ci ne doivent être imprimés reproduced without the autbor's ou autrement reproduits sans son permission. autorisation. 0-612-50921-4 • ABSTRAcr There have been many cases ofintrusion ofcivil aircraft into the airspace offoreign States. On occasion, the subjacent Stale has reaeted by using force against such aircraft, sometimes with fatal consequences. Customary intemationallaw admits the use offoree only in exceptional circumstanees. As the United Nations specialized agency responsible for international civil aviation, ICAO bas conducted fact-finding investigations into a number of cases ofaerial shootdowns and adopted resolutions and taken decisions in tbis connection. Such resolutions and decisions have clearly been influenced by political factors. The Organization has also taken specifie legal and technieal steps aimed al reducing the dangers ta civil aircraft and their occupants arising out oCan intrusion. In the legal field, its principal achievement has been the adoption in 1984 ofan amendment (Article 3 bis) to theChicago Conventionwhich is, however, not ftee ofambiguities and obscurities in meaning and which, despite numerous assenions to the contrary, does not refleet the exact seope of customary international law in tbis area. On the technical side, the Organization has successfully developed a number ofdetailed provisions in Annexes to the Convention which are universally respected and accepted by ilS Member States. • -i- • RÉsUMÉ ny a eu de nombreux cas d'intrusion d'aéronefs civils dans l'espace aérien de pays tiers. A l'occasion, l'Etat sous-jacent a réagi en utilisant la force, entraînant parfois des conséquences fatales. Le droit international coutumier n'admet l'emploi de la force que dans des circonstances exceptionnelles. En tant qu'agence spécialisée des Nations Unies responsable pour raviation civile internationale, l'OACI a mené des enquêtes dans un cenain nombre de cas où des aéronefs avaient été abattus, et a adopté des résolutions ou pris des décisions s'y rapportant. De telles résolutions et décisions ont manifestement été influencées par des facteurs politiques. L'Organisation a également pris des mesures spécifiques tant juridiques que techniques visant àréduire les dangers encourus par les aéronefs civils et leurs occupants suite à une intrusion. Sur le plan juridique, sa réalisation principale a été l'adoption en 1984 d'un amendment (Article 3 bis) à la Convention de Chicago dont le sens, cependant, n'est pas exempt d'ambiguïtes ni de zones d'ombre. Du point de we technique, l'Organisation a développé avec succès de nombreuses dispositions détaillées incorporées dans les Annexes à la Convention qui ont été universellement respectées et acceptées par ses Etats membres. • ·ii- • ACKNOWLEDGEMENTS 1wish to express my deep gratitude to Professor Ivan V1asic, for his many helpful suggestions, bis unfailing good humour and his apparently limitless patience during the supervision of this thesis. 1 aIso wish to express my thanks to Professor Michael Milde, without whose encouragement 1 could not have entered the Programme, and who was always there to inject enthusiasm whenever my interest waned. Finally, 1am indebted ta Maria D'Arnica of the Institute of Air and Space Law for ber dedication in putting the manuscript together, and ta Ghislaine Giroux of the rCAO Library for her assistance. • -üi- TABLE OF CONTENTS TInE: ICAO AND THE USE OF FORCE AGAINST • CIVIL AERIAL INTRUDERS PAGE ABSTRA.CT ..................................,...........i RESUMÉ •••••.•••..•..•..•.••.•••••.••••....••.•••••• Ü ACKNO~GEMœNTS ..............••..•.......•...••.•m UST OF ABBREVIATIaNS ... • ... • . .. • . ...............•..vü INTRODUCTION ....•......•..•..•..••....•.....•....• •. 1 CHAPTER 1: LEGAL AND FAcruAL BACKGROUND ..•.....•.••• 3 CHAPTER fi: THE USE OF FORCE AGAINST CIVIL AERIAL INTRUDERS IN INTERNATIONAL LAW BEFORE THE ADOPTION OF ARTICLE 3 BIS •••.•••...••..•.. • .... • •••• •• 13 1. TREATY LAw ..•...••.••.•••••••.•••...•••••••••14 a) Prior to the Chicago Convention ..•.............•..•• 14 b) The Chicago Convention .••.................•..... 17 c) The Charter of the United Nations ••.................. 21 d) Summary .••.•••••••••••••..•••••.•.••••••••28 2. OTHER RELEVANT SOURCES OF INTERNATIONAL LAw .....•..•. 29 a) Customary International Law ••••••••.•••••.•.•••••• 29 b) Judicial and Arbitral Decisions .........•............42 3. CONCLUSION.................... • • • • •••••••••••46 CHAPTER m: CONSIDERATION SY ICAO OF INCIDENTS INVOLVING THE USE OF fORCE AGAINST CIVIL AERIAL INTRUDERS 49 1. SPECIfIe INCIDENrS •••••••••••••••••••••••••••• •• 49 a) El Al ConsteUation (Israel - Bulgaria, 1955) ••••••• • • • •••• 49 • -iv- PAGE • b) Ubyan Arab Airlines (Libya - Israel, 1973) . .. .. .. .. .. .. .. .. .. .. .. 55 c) Korean Airlines (South Korea - USSR, 1983) .... .. • • • .. .. .. • .. .. 6S i) The 1983 Investigation .. .. .. .. .. .. .. .. .. .. .. ... .. .. .. .. 66 ü) The 1993 Investigtion 87 d) U.S.-registered Civil Aircraft (USA - Cuba, 1996) 91 e) Iran Air (Iran - USA, 1988) 114 2. EVALUATION................................................... 142 a) Legal Basis (or Investigations 142 b) Non-Endorsement by Couneil of Reports 143 c) Failure to Talee the Initiative 146 d) Maehinery for Ascertainment of Faets 148 e) Political Aspects of the Consideration by ICAO of the Aerial Incidents 151 CHAPTER IV: ICAO'S CONTRIBUTION TO THE LAW GOVERNING THE USE OF FORCE AGAINST CIVIL AERIAL INTRUDERS 161 1. ARTICLE 3 BIS 162 a) Negotiations Leading to the Adoption of Article 3 bis 162 b) Analysis of Content of Article 3 bis 186 i) Paragraph (a) 188 ii) Paragraph (b) 195 ili) Paragraph (c) 203 iv) Paragraph (d) 207 c) Article 3 bis and Customary International Law 208 2. LEGAL EFFEcrs OF ICAO REsOLUIlONS AND DECISIONS 219 3. PROPOSALS fOR A CONVENTION ON INTERCEPTION OF CIv'n.. AIR.CRA,F['" n7 CHAPTER V: ICAO'S TECHNICAL REGULATORY PROVISIONS RELATED TO THE USE OF FORCE AGAINST CIVIL AERIA.L. INTRUDER.S 238 1. INTERCEPTION OF CIVIL AIRCllAFT .. .. .. .. .. .. • .. • .. ••• .. • .. • .. • .. .. 238 • -v- PAGE • a) Background ta Current Provisions ••••••••••••••••••• 238 b) Amendment 27 10 Anoex 2 ••••.•••••••••••••••••• 240 c) Current Provisions Relating to Interception .••.......... 24S 2. AIR 1'RAFFIc SEIlVICES AND CML-MlUrARY CO-ORDINATION •••• 250 3. RELATION5HIP TO CUSTOMAR.Y INTERNATIONAL LAw ....•.•.. 253 CONCLUSION AND SUMMARy 257 SELECTEO BmUOGRAPHY ......•......•.......•........• 261 ANNEX: Protocol Relating to an Amendment to the Convention on International Civil Aviation [Article 3 bis] ..••••••..•••.•• 283 • • UST OF ABBREVIATIONS A.A.S.L. Annals of Air and Space Law AIP Aeronautical Information Publication A.J.I.L. American Journal of International law ANC Air Navigation Commission ATC Air Traffic Control A.T.S. Australian Treaty Series ATS Air Traffic Services B.Y.I.L. British Yearbook of International Law C.L.R. Columbia Law Review Cmnd.
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