THEME 6

SELF-CONTAINED LEGAL REGIMES

 THEME 6 - SELF-CONTAINED LEGAL REGIMES

UNIT 2
UNIT 1 UNIT 3 UNIT 4 - INTERNATIONAL
ENVIRONMENTAL LAW & CLIMATE HUMANITARIAN LAW
INTERNATIONAL AIR LAW LAW OF THE SEA
CHANGE PEACE
U N I T 1 - I N T RO D U CT I O N TO I N T E R N AT I O N A L A I R L AW
 INTRODUCTION TO AIR LAW
Air law also known as aviation law is regulated by IL

WHAT IS INTERNATIONAL AIR LAW?

• International air law is a specific branch of IL that focuses on the regulation of civil aviation activities conducted
across international borders

• International Air Law incorporates a wide range of legal principles, rules & agreements that apply to
 The use of airspace
 The operation of aircraft
 The rights & responsibilities of states, individuals & organizations involved in civil aviation.

• International air law includes rules of customary international law as well as treaty law dealing with civil aviation as
well as standards and patterns resulting from their provisions.

• International air law excludes military aviation & state aircraft

 EXCEPT where these relate to civil aviation
 Civil aviation focuses on the operation & use of aircraft in all their aspects.

WHAT IS AIR LAW?

DEFINITION:
 Air law is a specific legal field that includes the rules, regulations & conventions governing various aspects of
aviation, including the operation of aircraft, safety standards, airspace sovereignty, international air travel,
liability issues  Air law is a legal framework that controls aviation activities.

civil aviation operations

 Air law plays an NB role in regulating military aviation operations Air law distinguishes between different types
state aircraft operations of aircraft based on their use & ownership.
 Air law is designed to ensure the safe & orderly use of airspace & the operation of aircraft
 Air law addresses issues such as
 The operation of aircraft
 The sovereignty of airspace
 Overflight permissions
 The registration & nationality of aircraft
 International air travel agreements
 Liability rules for passengers & cargo

DEVELOPMENT OF INTERNATIONAL AIR LAW

HISTORICAL BACKGROUND

 Aerial navigation became achievable at the start of the 20th century

 When aerial navigation became possible legal experts initially looked to the law of the sea for guidance on how to
address the status of airspace

 4 Theories were development on this basis  AIRSPACE THEORIES

(1) Airspace as Free

 The 1st theory compared airspace to the high seas considering it entirely free

(2) Lower & Higher Airspace

lower territorial airspace- exclusively controlled by the state below
 This theory divided airspace into
higher airspace - open to all aircraft.

(3) Exclusive Sovereignty

 The 3rd theory maintained that airspace above a state fell under its exclusive sovereignty
 BUT innocent passage for foreign civil aircraft was allowed.

(4) Complete Sovereignty

 The 4th theory declared a state had full sovereignty over the airspace above its territory & territorial sea.
 PARIS CONVENTION OF 1919

 Known as the Convention Relating to the Regulation of Aerial Navigation

 This convention played an NB role in shaping the legal framework for airspace.
 It declared that "every state has complete & exclusive sovereignty over the airspace above its territory."

International Court of Justice Confirmation:

• The ICJ confirmed this principle in 1986 in the case of Nicaragua v United States.
• The ICJ highlighted that the unauthorized overflight of a state's territory by aircraft from another state constituted a direct
infringement on the principle of territorial sovereignty.

MODERN AIR LAW – CHICAGO CONVENTION

• Modern air law is mainly governed by the Chicago Convention on International Civil Aviation
• The Chicago Convention was adopted in 1944.
• SA is a party to this convention & it is incorporated into domestic law through the Civil Aviation Act of 2009.
• This convention provides a framework for the regulation of civil aviation on a global scale.
• The Convention identifies that states have the right to control their airspace & grant or deny overflight permissions.

• Key principles of the Chicago Convention:

(1) Air space/ aerial sovereignty

(2) Nationality of aircraft
(3) Conditions to be fulfilled with respect to aircraft and facilitation of navigation
(4) International standardization
(5) Pacific settlement of disputes
 AERIAL SOVEREIGNTY

WHAT IS AERIAL SOVEREIGNTY?

Aerial sovereignty is a fundamental principle of air law.

It declares that every state's has exclusive control & jurisdiction over the airspace above its territory

Article 2

For the purposes of Chicago Convention, territory is defined as land areas & territorial waters

 In aviation law, territory includes land areas in state's geographical boundaries + territorial waters adjacent to those land areas.

 territory in aviation terms applies to airspace existing over the

defined limits of a nation's boundary at ground level

 sovereignty is the right of a contracting state to impose its

national law upon users of its territorial airspace

AIRSPACE JURISDICTION & DISTRESS

 MAIN PRINCIPLES OF AERIAL SOVEREIGNTY?

Sovereignty: Aircraft Nationality: Scheduled Flights: Non-Scheduled Flights:

• Every state has complete & • Aircraft not engaged in scheduled
• Aircraft are considered to have • Aircraft on scheduled flights =
exclusive sovereignty over those operating on a published international air service can
the nationality of the state in
airspace above its land areas & timetable overfly or land in the territory of
which they are registered.
territorial waters. another state without permission
• This principle helps determine • Aircrafton scheduled flights
• This means a state has full • Overflown state may require
legal status & responsibilities of cannot overfly another state's
control & authority over its landing, especially for safety
aircraft territory without special
airspace, consistent with reasons
permission.
principle of aerial sovereignty.
• This rule ensures scheduled
flights respect the sovereignty of
other states

Scheduled Flights & Overflights: SCHEDULED FLIGHTS VS NON – SCHEDULED FLIGHTS

Those that operate according to a published timetable
Flights need special permission to overfly state's territory.
Non-Scheduled Flights:
Permission is obtained by agreements & arrangements
Aircraft not engaged in scheduled international air service
between states
Can Overfly / land in another state's territory without permission, subject to
specific conditions.
Territorial state has the right to require landing, especially for safety reasons.
If non-scheduled flights involve carrying passengers, cargo, or mail for a fee,
the territorial state may impose certain conditions as it deems necessary.
 2 BILATERAL AGREEMENTS

 2 Additional Treaties adopted from Chicago 1944 - international agreements related to air transport
 These agreements aim to facilitate international air travel, promote cooperation among states, and ensure that air
services can operate smoothly across borders.
 By granting airlines these freedoms, they create a more interconnected & efficient global air transportation network.

 The 2 agreements are:

International Air Services Transit Agreement  Two Freedoms Agreement
SA is a party to the Two Freedoms
Agreement but is not to the Five
International Air Transport Agreement  Five Freedoms Agreement Freedoms Agreement.

International Air Services Transit Agreement

 Known as the Two Freedoms Agreement
 It provides specific privileges to scheduled flights operated by contracting states.
 These privileges are:
 The right to fly across territory of another contracting state without landing
 Right to land in contracting state for non-traffic purposes, such as refuelling & repair

 SA is a party to this treaty & has been incorporated into domestic (municipal) law.
 This Agreement mainly addresses transit rights & landing for non-traffic purposes

International Air Transport Agreement

• Known as the Five Freedoms Agreement
• This agreement is designed to expand the privileges granted to scheduled flights even further.
• It adds 3 additional freedoms to those provided by the Two Freedoms Agreement.
• These new freedoms include:
 The right to put down passengers, mail, or cargo taken on in the territory of the state whose nationality
the aircraft possesses
 The right to take on passengers, mail, and cargo destined for the territory of the state whose
nationality the aircraft possesses
 The right to take on passengers, mail, and cargo destined for the territory of any other contracting
state and the right to put down passengers, mail & cargo coming from any such territory

• It permitting airlines to carry passengers, mail & cargo to & from other countries.
• This Agreement provides more rights BUT it has not been as widely accepted as the Two Freedoms Agreement
 DISTRESS

Coastal State Jurisdiction  CIL identifies that a coastal state does not have jurisdiction over persons on board a
foreign vessel forced to put into port in distress = Principle of Maritime Distress

Application to Aircraft??
• The principle above has been well-established & accepted in maritime law.
• BUT CAN IT APPLY TO AIRCRAFT
• A similar principle should apply to aircraft forced to land in distress.
• This means that IL provides aircrafts the right to land in another country when facing distress.
• BECAUSE AS A GENERAL RULE THE Aircraft & occupants should not be exposed to penalties or unnecessary
detention by the territorial sovereign when landing under distress circumstances

 Nkondo v Minister of Police Case:

FACTS

 This case involved a member of the ANC military wing

 He’s flight was forced to land in Bloemfontein due to adverse weather conditions while traveling from
Mozambique to Lesotho.

JUDGMENT

 The SA court upheld the applicability of the maritime distress rule to aircraft.
 Justice Smuts stated that aircraft in distress should enjoy similar privileges as ships in distress under IL
 The executive branch in South Africa ordered the release of Nkondo and his return to Lesotho

RULING

 The court did not apply this principle to a person suspected of crimes against the state in which the aircraft
landed, & the individual was held accountable under security laws.
 CIVIL, STATE & MILITARY AIRCRAFT

CIVIL AIRCRAFT STATE AIRCRAFT MILITARY AIRCRAFT

Non-military purposes including Governmental functions Military purposes including
• passenger flights • Customs • Defence
PRIMARY USE • Cargo transport • Police • Combat
• General aviation • Surveillance

• Private individuals • Government entities • State's armed forces

OWNERSHIP • Airlines • State entities • Defence agencies
• Commercial entities
Governed by civil aviation authorities & Specific regulations for state aircraft Military command & control
REGULATION international agreements

Can temporarily lose civilian status when May lose civilian status when used for Maintains military status
STATUS CHANGES used for military purposes military activities

Subject to international agreements like the Specific legal protections & immunities Governed by national defence policies &
LEGAL PROTECTIONS Chicago Convention international military laws

Basic civil aviation regulations & protections Enjoy specific legal immunities when used Military regulations & protections apply.
IMMUNITIES apply for governmental functions

Subject to international overflight & landing Specific legal protections related to Military flights may require specific
OVERFLIGHT & LANDING regulations overflights & landings permissions

 The classification of civil, state & military aircraft is mainly based on their function & purpose.
 Civil aircraft are intended for civilian & non-military uses
 State aircraft are designated for government-related functions, excluding military purposes
 Military aircraft are designed & used specifically for defence, combat & related activities.
NOTE  Status can temporarily change based on its use
 For Example, civil aircraft temporarily employed for military
functions may lose its civilian status during that period.
 AERIAL INTRUSION & THE USE OF FORCE

Aerial Intrusion:
 Aerial intrusion, in the context of international air law, refers to the unauthorized entry of an aircraft into the
sovereign airspace of another state

Article 3(c) of the Chicago Convention

 No state aircraft of a contracting State shall fly over the territory of another State or land thereon without
authorisation by special agreement or otherwise, and in accordance with the terms thereof

Did not contact affected

If an aircraft entered a state’s That state may shoot the
state to inform them of
territory without permission aircraft down
emergency situation

 However, it can happen that there is an emergency or a navigational failure & the aircraft goes off route

THE “WHAT THEN” QUESTION

 That was the law & there were no exceptions.
 NOTE  IL IS CONSENT BASED
 Whenever there is a “BIS” after an article it means it was inserted into the treaty years after
 states have to specifically consent & sign new addition in order for it to be applicable to the

MAIN QUESTIONS

 What is the status & standard of treatment which in fact enters without such permission?
 What actions are to be taken under international air law in the event of an aerial intrusion?

NB: PRINCIPLE: every state has complete & exclusive sovereignty over the airspace above its
territory  the protection of the air space is the interception of the suspect civil aircraft
 When an aircraft enters another state's airspace without proper authorization  it may be considered a
suspect civil aircraft.
  An aircraft may be viewed as suspect in different ways such as:
(1) Failure to Identify
(2) Unexpected Appearance
(3) Deviation from Established Routes
(4) Lack of Communication
(5) Improper Operations

INTERCEPTION

 The state whose airspace is being violated may resort to interception as a means of protection.
 Interception involves state aircraft approaching the suspect civil aircraft to identify it & make decisions regarding
further actions.
 Main principles & practices related to interception in international air law include:
1. Last Resort: Interception of civil aircraft should only be taken as a last resort when other means of resolving
the situation have been exhausted.
2. Directing the Aircraft: If necessary, the intercepting state aircraft may direct the suspect civil aircraft to
return to its planned flight path, guide it away from prohibited, restricted, or danger areas, or instruct it to
land at a designated aerodrome.
3. Suitable Landing Site: If the intercepted civil aircraft is required to land in the territory overflown, the
aerodrome designated for the landing must be suitable for the safe landing of the aircraft type concerned.

ensure compliance with international air law

 The interception of suspect civil aircraft is a measure used to protect the sovereignty of states' airspace
address potential security concerns.

It is NB to prioritise the safety of individuals on board & the aircraft itself during interception procedures

 Use of Force Against Unauthorized Military Aircraft:

 When an unauthorized military aircraft enters a state's airspace, that state has the right to use force in self-
defence to protect its sovereignty the state can take actions, including the use of weapons, to address the
threat posed by the unauthorized military aircraft.
 Restrictions on the Use of Force Against Civilian Aircraft:
 In contrast to military aircraft, there are significant restrictions on the use of force against civilian aircraft that
intrude into a state's airspace. The intentional use of weapons against such aircraft is generally prohibited
The legality of actions taken in response to an intrusion in compliance with international law

 The case of Korean Airlines Flight 007 (KE 007):

Background:
• KE 007 was a Korean Airlines Boeing 747 on a flight from New York to Seoul, with 246 passengers of different
nationalities & 23 crew members.
• On 1 September 1983, the aircraft entered Soviet airspace over the Kamchatka Peninsula & later over the
island of Sakhalin.
• These areas were considered prohibited zones due to Soviet military forces & equipment.

Shoot-Down by Soviet Air Force:

• Soviet air force shot down KE 007, as it was considered aerial intrusion into their prohibited airspace.
• It was clear that the aircraft was a civil aircraft
• There was no evidence that the crew was aware of the interception.

ICAO Response:
• The International Civil Aviation Organization held an unusual session on 15 & 16 September 1983, & passed a
resolution.
• The resolution deeply faulted the destruction of the aircraft, resulting in the loss of 269 innocent lives.
• It recognized that the use of armed force against international civil aviation was incompatible with
international norms, humanity & the rules and standards enshrined in the Chicago Convention.

Amendment to the Chicago Convention - Article 3 bis:

• In response to the KE 007 incident, an amendment to the Chicago Convention was introduced, adding a new
Article 3 bis
• This amendment recognized the principle that every state must refrain from resorting to the use of weapons
against civil aircraft in flight.
• It states that, in case of interception, the lives of persons on board & the safety of the aircraft must not be
endangered.
• The amendment clarified that this provision should not be interpreted as modifying the rights & obligations
of states set forth in the Charter of the UN.

Aerial Intrusions and the Use of Force:

• The KE 007 incident highlighted the need for a structured approach when dealing with aerial intrusions,
particularly in cases involving civil aircraft.
• Article 3 bis highlighted that force should not be used immediately & certain steps, including warnings, must
be taken before considering the use of force.
• The legality of using force in such situations is governed by IL, specifically ART 2(4) & ART 51 of the UN Charter,
which prohibit the use of force unless authorized by the UNSC or in cases of self-defence.

In summary, the KE 007 incident led to the introduction of ART 3 bis in the Chicago Convention, providing a legal
framework for responding to aerial intrusions & emphasizing the need to prioritize the safety of individuals on
board civil aircraft.
Practical Examples of Breaches:

Scenario 1:
•A civilian aircraft intrudes Russian airspace.
•Immediately a Russian Fighter Jet intercepts it & shoots it out of the sky with a missile

• This action is clearly illegal under international air law.

• The intercepting state must follow specific procedures & measures, including attempts to establish
communication with the intruding aircraft & assess the situation before resorting to the use of force.
• Shooting down the civilian aircraft without taking these steps is a violation of IL

Legality: This scenario is clearly illegal. Russian authorities did not take any of the appropriate steps to intercept the
civilian aircraft. Shooting it down without proper interception procedures violates international air law

Scenario 2:
•A civilian aircraft intrudes Russian airspace.
•Radio contact is made and the civilian aircraft is asked to leave the Russian airspace
•The pilots of the civilian aircraft respond with “Mayday, mayday, emergency”
•A Russian Fighter Jet takes off and tries to establish visual contact with the cockpit by rocking its wings.
•It is clear that the pilots are trying to communicate but their aircraft is in distress
•Ignoring this the fighter pilot decides to shoot the aircraft down

• This is a violation of international air law.

• The intruding civilian aircraft, in this case, was not intentionally threatening the sovereignty of the foreign
state but was experiencing an emergency.
• IL requires that when an aircraft is in distress, the intercepting state should make every effort to escort the
aircraft safely out of its airspace or to a possible emergency landing site

Legality: This action is a violation of international air law. The civilian aircraft did not pose a threat to the
sovereignty of the foreign state. It was in distress & Russian military aircraft should have attempted to escort it to a
possible emergency landing site.
 DRONES & REGULATIONS

• Currently, there is no international convention that comprehensively governs the use of drones.
• While the Chicago Convention applies to unmanned aircraft - it is limited to drones that are "pre-programmed."
• Remotely operated drones, which make up the majority, are not covered by this convention.

South Africa's Regulatory Framework:

• SA is among the first countries in the world to establish regulations for the use of drones.
• In 2015, it made amendments to the SA Civil Aviation Regulations, which are adopted under the Civil Aviation Act.
• These amendments created a comprehensive set of rules specifically governing autonomous unmanned aircraft

AIR DEFENCE IDENTIFICATION ZONES

 An Air defence Identification Zone (ADIZ) is a defined airspace area beyond a country's sovereign territory.
 In this zone, the country requires the identification, location & air traffic control of aircraft, mainly for national
security reasons.
 Currently, there is no specific IL that governs ADIZs.
 The Convention on Civil Aviation addresses aspects related to ADIZs, primarily by directing that nations must
refrain from using weapons against civilian aircraft.
 The United States was the first country to establish an ADIZ in 1950 during the Cold War, particularly in
response to the Soviet Union's activities.
 The practice of ADIZs has become contested over time because the extent to which states can impose reporting
obligations on aircraft operating outside their territorial airspace remains undefined under international air law.
 One recent & highly controversial incident occurred on 23 November 2013, when China declared an ADIZ over
the East China Sea.
 OUTER SPACE & SPACE LAW

 Historically, the principle of sovereignty over airspace extended indefinitely upward, following the principle
"cuius est solum eius est usque ad caelum."
 However, this concept became outdated with the launch of the first satellite, Sputnik, into outer space in 1957.
 This event led to the development of a legal framework for outer space.
 Multiple General Assembly resolutions, which were immediately accepted as customary law & various
multilateral treaties have established a comprehensive legal regime for outer space.

 The most significant of these treaties is the "Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1967."
 This treaty outlines the following principles:

(1) Freedom of Exploration: Outer space, including the moon & other celestial bodies, is to be open for
exploration and use by all states without discrimination.
(2) Prohibition of National Appropriation: Outer space is not subject to national appropriation through
sovereignty claims, use, occupation, or any other means.
(3) Compliance with International Law: Activities in outer space must be conducted in accordance with IL
(4) Ban on Weapons in Outer Space: States are not allowed to place objects carrying nuclear weapons in
orbit, establish military bases, or test weapons on any celestial body.
(5) Protection of Astronauts: Astronauts are considered envoys of mankind in outer space & must be
provided with all possible assistance, including during accidents, distress, or emergency landings.
(6) Responsibility & Liability: States are responsible for their national activities in outer space & are liable for
any damage caused to other states by objects launched into outer space.

 SA is a party to several key space-related treaties, including the 1967 Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space.
 SA established the Space Affairs Act in 1993 to manage its space industry & fulfil international
commitments regarding the peaceful use of outer space.
 This Act defines outer space as the region above Earth's surface where objects can operate in orbit.