Aviation Law and Space Law
Aviation Law

-Air space – customary law since First W.W. That aircraft from one state have right to fly over the high seas, but never over territorial sea of another state
-Art.1 1944 Chicago Convention on International Civil Aviation: “every state has complete and exclusive sovereignty over the space above its territory”
-It is a serious breach of international law for a state to order to violate the air space of another state (for e.g. USA military aircraft attacked, forced to land or shot down by Hungary, USSR, Czechoslovakia-a number of incidents)
-Does the states have an unlimited right to attack intruding aircraft in all circumstances?
-Lissitzyn principle (from 1953)-important (book!)
-Some states support Lissitzyn principle and that flexible approach to civil aircraft as well as military craft, but other states including ICAO-International Civil Aviation Organization, believe that civil aircraft must never be attacked in such circumstances
-The rule that (it is not indeed a rule) trespassing civil aircraft must never be attacked does not mean that they have a legal right to trespass
-Assembly of ICAO in 1984 adopted an amendment to 1944 Chicago Conv. On the Int. Civil Aviation which confirms that “every state, in the exercise of its sovereignty is entitled to require the landing at some designated airport of a civil aircraft flying above its territory without authority.” and that “every state must refrain from resorting to use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered”
-case: US warship in Persian Gulf in 1988 shot down the civilian Iran Air Flight
Killing 250 passengers from 6 countries; offered to pay ex gratia compensation later; Iran didn’t accept that offer and claim come before Iran-us Claims Tribunal; survivors of each Iranian victim got 300.000/150.000 US dollars
-Chicago Conv from 1944 and rules adopted by ICAO is formed institutional and legal framework for int. civil aviation
-ICAO is the main forum for the development of int. law and also domestic law
-Many of the rules governing aircraft have been copied from the rules governing ships (nationality of aircraft, the problem of flags of convenience, rules concerning power to try crimes committed)
-The most common offences committed against civil aviation safety are hijacking, sabotage and forced flights to seek asylum in another state.
Space Law
-Outer space – after launching Sputnik 1 in 1957, the use of space technology has become widespread, both for military and civilian purposes, including satellites for communications, meteorology, television and radio broadcasting -USA, UK, Sweden have adopted specific national legislation relating to outer space activities Law-making process in the field of space law -special characteristics
-UNCOPUOS – UN Committee on Peaceful Uses of Outer space and two subcommittees: the Scientific and Technical Subcommittee and the Legal Subcommittee -institutional framework enables more consistency in law-making (but only quarter of the members of UN is participating) -important issues of the military use of outer space is also considered by the major powers outside of UNCOPUOS -Inter. Telecommunication Union-ITU-deals with regulation of use of radio frequencies and satellite positions in the geostationary orbit for space comm.

-UN General Assembly – all activities led to the adoption of several major multilateral treaties, so called: *Outer Space Treaty, *Rescue Agreement *Liability Convention *Registration Convention *Moon Treaty, as general agreements and, also, special conventions regarding nuclear weapon tests, prohibition of military or any other hostile use of environment, etc. -Strong pressure towards integration especially in the fields of satellite communication -Discussions about creating a global space agency -Process of developing space law was successful because only two states were involved in activities in outer space-USA and Soviet Union -Meanwhile, more and more states have become directly or indirectly involved in outer space activities or consider their political and economic interests.

-law-making process become difficult
-The basic substantive framework of present law of an outer space is contained in Outer Space Treaty of 1967
-The Treaty provides that:
1. Outer space is free for exploration and use by all states
2. Can not be annexed by any state
3. Exploration and use of outer space must be carried out for the benefit of all countries and in accordance with international law
4. Activities in outer space must not contaminate the environment of the Earth or of celestial bodies, and must not interfere with the activities of other states in outer space
5. States must disclose information about their activities in outer space
6. Activities of non-governmental entities in outer space require governmental authorization
7. A state which launches an object into outer space is liable for any damage caused by that object
8. States must assist astronauts in distress
9. Objects, from one state, found in another state must be returned, etc. etc.
The common heritage of man principle-learn for homework.
The Law of Armed Conflict

1. Lawful and unlawful wars-development through history
-In Western Europe attitude towards the legality of war leaned on the teachings of the Roman Catholic Church and teachings from theologians like St Augustine
-That ideas were accepted for over 1000 years, by which war was regarded as a means of obtaining reparation for a prior illegal act committees by other side – the reparation hat to be proportional to the seriousness of the illegality. In addition, war against heretics were sometimes regarded as being commanded by God
-16 century - distinction between just and unjust wars began to break down
-17 century writers (like Hugo Grotious) had attempts to re-establish traditional doctrines, 18. and 19. centuries produced an almost complete abandonment of the distinction between legal and illegal wars.
-Wars were said to be justified if they were fought for the defense of certain vital interests but each state remained the sole judge of its vital interests
-Modern writers have suggested that a legal system which made no distinction between the legal and illegal use of force was not worth of the name of law
-In international society of states derive protection from the fact that they are few in number and are composed of territory and population.
-Fact that states are composed of population and territory means that they cannot be overpowered instantaneously – alliances were of crucial importance in the 19 century

The prohibition of the use of force in the UN Charter
-Central feature of the modern int.legal system is the normative attempt to control use of force
-Art.2 of UN Charter provides:
“All members shall refrain in their international relations from the threat of use of force against territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN”
-This rule is of universal validity, and binding to all states because it is a rule of customary international law
-Art-.2 is badly drafted because terminology opens up the possibility of arguing that force used for a wide variety of purposes (for example, to protect human rights) is legal because it is not assumed against territorial integrity or political independence of any state.

-The extensive interpretation of Art.2 is reinforced by an examination of other provisions of the Charter like preamble which says that “the Peoples of the UN are determinates to save succeeding generations from the war, which twice in our lifetime has brought untold sorrow to mankind” and Art.2 obliges members to “settle their international disputes by peaceful means in such a manner that int.peace and security and justice are not endangered”
-The Art.2 therefore should be interpreted as totally prohibiting the threat or use of force (exceptions – military actions taken by UN, etc.)
Self-defense
-Self defense is another exception, although is controversial (NATO)
-Disagreement about circumstances in which the right of self defense may be exercised
-Models of self-defense: preventive self-defense, self-defense and claims to territory, self-defense against attacks on ship and aircraft, armed protection of nationals abroad, armed reprisals, immediacy and proportionality, collective self-defense.

Preventive self-defense
-The words from UN Charter “if an armed attack occurs” imply that the armed attack must have already occurred before force can be used in self-defense, there is no right of anticipatory self-defense against an imminent danger of attack.
-Supporters of a right of preventive self-defense claim that Art.51 does not limit the circumstances in which self-defense may be exercised (state may use force in defense of a large range of interests, even there is neither an actual armed attack nor an imminent danger of one)
-Trouble about preventive self-defense is that state can seldom be absolutely certain about the other state’s intentions, in moments of crisis there is seldom time to check information suggesting that an attack is imminent (is a nuclear power entitled to destroy most of mankind simply because a radar system mistakes a flight of a geese for enemy missiles)
-Self-defense in practice – Israel bombed nuclear reactor in Iran

Self-defense and claims to territory
-Self-defense can not be invoked to settle disputes as to territory. It is unlawful to attack territory which is in the possession of another state, even through the state using force may consider that it has a better title to the territory in question than the state in possession
Self-defense against attacks on ships and aircrafts
-...an armed attack on the vessels or aircraft in named areas provides a collective self-defense.
-Case Corfu Channel, ICJ held that British warships, attacked while exercising a right of innocent passage in foreign territorial waters, were entitled to return fire
Armed protection of nationals abroad
-Attacks on the state’s nationals resident abroad do not entitle the state to use force in order to defend its nationals without the consent of the foreign government (for example so called military rescue operations)
-The contrary view insists that an attack should be assimilates to the law of self-defense
-Rescue operations to protect state’s own nationals have found approval and understanding by other States under certain circumstances.

Armed reprisals
-Self-defense does not include a right of armed reprisals. If terrorists enter one state from another, the first state may use force to arrest or expel the terrorists but having done so it is not entitled to retaliate by attacking the other state
Immediacy and proportionality
-Most important, force used in self-defense must be necessary, immediate and proportional to the seriousness of the armed attack.
-The purpose of this requirement is to prevent abuse and military aggression under the pretext of self-defense long after hostilities have ceased.
-The most important limitations of the self-defense are proportionality and necessity, and immediacy.
Collective self-defense
-Controversy
-Art.51 of the Charter speaks of individual or collective self-defense”
-Some argued that a right of collective self-defense is merely a combination of individual rights of self-defense ; states may exercise collectively right which any of them might have exercised individually.

Civil wars
-War between two or more groups of inhabitants of the same states one of which may be the government
-May be fought for the control of the government of a state, or it may be caused by the desire of part of population to secede and form a new state
-Other types of civil wars – for example rebelling group may simply try to force government to make concessions (to grant regional autonomy), may also be fought between parties while the government remains neutral and ineffective
-Most of the wars fought since 1945 have been civil wars or have their roots in civil wars
-The rise of internal ethnic-nationalistic conflicts in many parts of the world has made this topic even more prominent
The legality of civil wars
-There is no rule in international law against civil wars
-The UN Charter prohibits use or threat of force in international relations only
-Also, complicated thing is issue of lawfulness of intervention by other states in a civil war in another country.

Effectiveness of the modern rules against use of force
-For over fifty years the world has been relatively free from international wars
-All wars had form of civil wars, although there is always danger that civil wars escalate into international wars (Vietnam War in 1960s)
-The biggest defect in the modern rules is that they are often imprecise
-Also, many states want to retain possibility of using force in certain circumstances, but they know that an interpretation which allowed them to do so would also allow other states to use force against them
-But, although there are cases where rules are unclear, and where UN adopts different attitudes, there are also cases where the law is perfectly clear
FOR HOMEWORK
-read and learn about “types of participations by other states in civil wars”, and “self-determination and the use of force”.