The Legal Status of Military Aircraft in the High Seas

  • Received : 2017.06.12
  • Accepted : 2017.06.25
  • Published : 2017.06.30

Abstract

The main subject of this article focused on the legal status of the military aircraft in the high seas. For this the legal status of the military aircraft, the freedom of overflight, the right of hot pursuit, the right of visit and Air Defense Identification Zone (ADIZ) were dealt. The 1944 Chicago Convention neither explicitly nor implicitly negated the customary norms affecting the legal status of military aircraft as initially codified within the 1919 Paris Convention. So the status of military aircraft was not redefined with the Chicago Convention and remains, as stated in the 1919 Paris Convention, as a norm of customary international law. The analyses on the legal status of the military aircraft in the high seas are found as follows; According to the Article 95 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. We can suppose that the military aircraft in the high seas have also complete immunity from the jurisdiction of any State other than the flag State. According to the Article 111 (5) of the UNCLOS the right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. We can conclude that the right of hot pursuit may be exercised by military aircraft. According to the Article 110 of the UNCLOS a warship which encounters on the high seas a foreign ship, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy, (b) the ship is engaged in the slave trade, (c) the ship is engaged in an unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109, (d) the ship is without nationality, or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. These provisions apply mutatis mutandis to military aircraft. As for Air Defence Identification Zone (ADIZ) it is established and declared unilaterally by the air force of a state for the national security. However, there are no articles dealing with it in the 1944 Chicago Convention and there are no international standards to recognize or prohibit the establishment of ADIZs. ADIZ is not interpreted as the expansion of territorial airspace.

Acknowledgement

Supported by : Kangwon National University

References

  1. Bardin Anne, Coastal State's Jurisdiction over Foreign Vessels, 14 Pace International Law Review, 2002.
  2. Bourbonniere Michel and Haeck Louis, Military Aircraft and International Law: Chicago Opus 3, 66 Journal of Air Law and Commerce (hereinafter JALC), 2001.
  3. Brian E, Shooting Down Civilian Aircraft: Is There An International Law ?, 72 JALC, 2007.
  4. Cheng Bin, The Law of International Air Transport, Stevens & Sons Limited, 1962.
  5. Cheng Bin, The Destruction of KAL flight KE007, and Article 3 bis of the Chicago Convention in van's Gravesande J.W.E. Storm and van der Veen Vonk A (eds.), Air Worthy, Kluwer Law & Taxation Publishers, 1985.
  6. Cheng Bin, Studies in International Space Law, Clarendon Press.Oxford, 1997.
  7. Churchill R. R. & Lowe, A. V, The Law of the Sea, 3rd ed., Manchester University Press, 1999.
  8. Cuadra Elizabeth, Air Defense Identification Zones: Creeping Jurisdiction in the Airspace, 18 Virginia Journal of International Law, 1978.
  9. Dutton Peter, Caelum Liberam; Air Defense Identification Zones Outside Sovereign Air Space, 103 American Journal of International Law (hereinafter AJIL), 2009.
  10. Grief Nicholas, Public International Law in the Airspace of the High Seas, Martinus Nijhoff Publishers, 1994.
  11. Kim Han Taek, International Air Law, Whybooks, Korea, 2016 (written in Korean).
  12. Kim Han Taek, A Comparative Study between Space Law and Law of the Sea, 24 The Korean Journal of Air & Space Law, 2009.
  13. Kim Han Taek, International Law on the Flight over the High Seas, 26 The Korean Journal of Air & Space Law, 2011 (written in Korean).
  14. Kim Han Taek, International Law on the Air Defense Identification Zones over the East China Sea in Korean Branch International Law Association (ed.), 1 Korean Yearbook of International Law Ilchokak & Korean Branch ILA, 2014.
  15. Kim Han Taek, A Study on International Law about the Air Defense Identification Zones over the East China Sea, 44 Kangwon Law Review, 2015 (written in Korean).
  16. Lamont Christopher K, Conflic in the Skies: The Law of Air Defence Identification Zones, 39 Air and Space Law, 2014.
  17. Lewis Margaret K, An Analysis of State Responsibility for the Chinese-American Airplane Collision Incident, 77 New York University Law Review, 2002.
  18. Lissitzyn Oliver J, Some Legal Implications of the U-2 and RB-47 Incidents, 56 AJIL, 1962.
  19. Malanczuk Peter, Akehurst's Modern Introduction to International Law, 7th revised ed., Routledge, 1997.
  20. McDougal Myres S & Burke William T, The Public order of the Oceans: A Contemporary International Law of the Sea, Yale University Press, 1962.
  21. Milde Michael, United Nations Convention on the Law of the Sea: Possible Implications for International Air Law, 8 Annals of Air and Space Law (herein after AASL), 1983.
  22. Milde Michael, Interception of Civil Aircraft vs. Misuse of Civil Aviation, 11 AASL, 1986.
  23. Oduntan Gbenga, Sovereignty and Jurisdiction in the Airspace and Outer Space-Legal Criteria for Spatial Delimitation, Routledge, 2012.
  24. Thomas A. R & Duncan James C (Editors), Chapter 2 International Status and Navigation of Warships and Military Aircraft, Annotated Supplement to the Commander's Handbook on the Law of Naval Operations, 73 International Law Studies, US Naval War College, 1983.