Article 2(1) of the UN Charter states that “the organisation is based on the principle of the sovereign equality of all its Members.” It cannot be disputed that the international community as a whole supports the fact that a state’s right to sovereignty is considered to be its most sacred international law right, which also includes sovereignty over its air space. Without this right, a state cannot exist and the United Nations cannot function.
The parameters are clear and entrenched in international law as to when and how a state may use force against intrusion by a foreign military aircraft of another state in order to protect its right to sovereignty over its air space. However, international uncertainty and much debate exist as to the nature of civilian aerial intrusions into the airspace of another state.
From an objective perspective, it appears that international law provides for a clear legal framework in that force may not be used against a civilian aircraft intruder unless it is facing an armed attack and acting in self-defence as defined in the Charter of the United Nations. This statement could not be further from the truth and it seems that even in our current modern, technologically advanced society we live in today where we can put a man on the moon and operate our household appliances from our phones, we cannot reach consensus as to what constitutes an armed attack by civilian aircraft or when and how a state may use force when a civilian intrusion of its airspace occurs. Consider the following scenario:
A civilian aircraft of state A takes off on a route which requires it to cross the sovereign air space of state B. State B does allow for this type of crossing, provided that the civilian aircraft keeps to its designated route and does not enter any unrestricted areas of state B which requires pre-authorisation before entering. The civilian aircraft enters the airspace of state B, however, for no apparent reason, it deters from its designated route and heads towards a restricted area of state B. Air Traffic Control (“ATC”) of state B calls upon the pilot to return to its designated route, however due to some form of malfunction error, no communication can be established or alternatively, communication is established, but the pilot confirms it is heading to state C and proceeds to travel on the unauthorised route.
In the absence of knowing the aircraft’s intention and in fear for state B’s national security, state B immediately sends an interceptor jet in an attempt to intercept the aircraft, but to no avail can either ATC or the interceptor jet manage to establish contact with the aircraft. As a last resort, the interceptor jet attempts to force the aircraft to land at the closest runway but the aircraft refuses/fails to take any recognisance of this attempt and proceeds on the unauthorised route (hereinafter referred to as “the Scenario”).
Even with the inception of Article 3bis (as further described in 2.3 below), which was adopted for this specific international issue, there are still a lack of agreement amongst the international community as to the parameters in which to operate when a state finds itself in a situation as set out in the Scenario. This issue forms the crux of this paper and the writer will attempt to, by applying various applicable international laws, including customary laws, establish a universal set of guidelines which states can apply when having to deal with situations similar to the Scenario.
Mini Dissertation (LLM)--University of Pretoria, 2019.