A LEGAL ANAYLSIS OF THE SHOOTING OF KOREAN AIRLINES FLIGHT 007 BY THE SOVIET UNION

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A LEGAL ANALYSIS OF THE SHOOTING 7
KOREAN AIRLINES FLIGHT 007BY`T IE
SOVIET UNION
BY DR. FARooQ HASSAN*
ON SEPTEMBER 2, 1983, the world was stunned by the
news that during the previous day the :Soviet, Union had
shot, down a South Korean jetliner over the Sea:of.:Japan,
killing all 269 passengers aboard The airliner, which was on
a scheduled flight between New. York and Seoul, hadappar-
ently strayed off course into Soviet airspace when , it was de-
stroyed by, Russian jet fighter planes. . The; trag4y.. was
brought to international attention through strong jrtuanents
issued by the President and Secretary of. State of tbefited
States.' While some aspects of this incident mar taever be
2
. sufficient data is available to analyze; , 1tgal . as-
known,,
pects of the actions taken by the Korean airliner dod,the So
viet interceptors.
This article will focus on one central, issue the egtl bus
of a trespassing civil foreign aircraft into-the natio l ,space
of another country. At the outset;. the facts of the h jet-
linerincident will be presented. Next, the arti laj v~nll, ex-
Visiting Professor of Law, University of San Diego; Prof or-d -Willamette
University- Banister at Law, Lincoln's Inn, London; Senior Advocit-;rt
of Pakistan; member, Oregon Bar; member, international Institute oStic Stud-
ies, London.
T W. Times, Sept. 2, 1983, at 1, col. 4.
2 While the act of aerial trespass by the Korean jetliner is beyond: exactly
what led the Soviet interceptors to shoot it down is only known to t~bi ~ thCy
have chosen to broadcast to the international community: The that
the destroyed plane was engaged in espionage for the U.S. For Soviet'
Korean Airlines had been spying for the U.S. since 1970, we N ember
17, 1981, at 3, col. 5. .
555 it
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556 JOURNAL OF AIR LAW AND COMMERCE [49
amine the application of international law, and more
specifically, international air law, to the central issue. In ad-
dition, contemporary state practice will be analyzed to deter-
mine whether unofficial, customary law has emerged in this
area of inquiry. In conclusion, the applicable international
law will be applied to the facts of the Korean jetliner tragedy
in order to evaluate the legal validity of the Soviet action in
shooting down the Korean airliner.
I. EVENTS SURROUNDING THE ATTACK ON KOREAN
AIRLINES FLIGHT 007
As stated previously, the news of the downing of the Ko-
rean plane was broadcast to the world by President Reagan
and Secretary of State Shultz.3 The President expressed "re-
vulsion" at what he described as a "horrifying act of vio-
lence."" More specific details were provided in a news
conference held by the Secretary of States. Further details
were provided to the press by other officials of the State De-
partment. KAL Flight 007 left New York at 11:50 p.m. EDT
on August 31, from John F. Kennedy Airport, with 269 pas-
sengers bound for Seoul South Korea. En route it stopped at
Anchorage and left at 10:00 a.m. on September 1. Sometime
thereafter it drifted off course and at 1:00 a.m., Korean time,
Soviet radar began to track the aircraft as it entered Soviet
air space over the Kamchatka Peninsula.
The areas over which the KAL flight strayed are of a mili-
tary nature and constitute strategic airspace of the Soviet
Union.' After two hours of tracking the plane by radar, So-
viet pilots reported seeing the aircraft at 3:12 a.m. At that
time the airliner was traveling westward, after going south
across the southern tip of Sakhalin Island. This area contains
some of the Soviet Union's most sensitive military installa-
tions.' At 3:21 a.m. a Soviet pilot reported to his base that
N.Y. Times, Sept. 2, 1983, at 1, col. 4.
4 Id
Id, at 5, col. 1.
Id, at 1, cot. 5.
1984] SOVEREIGNTY OVER AIRSPACE 557
the aircraft was flying at an altitude of 33,000 feet. Accord-
ing to a statement issued by the official Soviet news agency
on the day following the disclosure by the American govern-
ment, the KAL plane had strayed by as much as 312 miles
from its designated route." At 3:26 a.m., presumably after
authorization from its base command, the Soviet interceptor
jet reported firing a missile at the KAL aircraft. Four min-
utes later American and Japanese radar showed the altitude
of the Korean plane to be only 16,400 feet. It had been hit
and was on its way down into the Sea of Japan. At 3:38 a.m..
the plane disappeared from the radar screens.9
Certain elements of the Korean airliner incident are partic-
ularly noteworthy for the present discussion. First, KAL
Flight 007 was a scheduled civilian airliner carrying passen-
gers of different nationalities on an international flight. Sec-
ond, whether by accident on account of instrument
malfunction, or by design, the Korean jetliner strayed of
course over sensitive Soviet airspace.1O Third, the airliner way
shot down apparently without warning from the Soviet
interceptors.
The first Russian report of the incident did not appear un
til September 3, 1983, one day after the occurrence had beet
reported to the world by the United States. Furthermore, fa)
from admitting what had happened, the Soviet report merel,
acknowledged that a foreign aircraft had been tracked by tht
Soviet Union, and that Soviet jet fighters had intercepted it
The report did not mention the crucial fact that the plant
had been shot down." The obvious vagueness of the origina
N.Y. Times, Sept. 3, 1983, at 4, col. 1.
N.Y. Times, Sept. 2, 1983, at 1, col. 3 (relevant times found in map on page 1)
See NAT'[. L.J. Sept. 19, 1983 at 3 (suggesting several theories for the airliner
skewed course: e.g., malfunction of navigational equipment or deliberate overflight as
timesaving short-cut); but see ICAO Restricted Doc. C-WP/7764, Destruction of Kore
Air Lines Boeing 747 over Sea of Japan, 35-37 (1983) (finding no evidence to suppoi
theories of intentional overflight for purposes of espionage or short-cutting).
N.Y. Times, Sept. 2, 1983, at 4, col. 1. The official Soviet report stated:
An unidentified plane entered the airspace of the Soviet Union over the
Kamchatka Peninsula from the direction of the Pacific Ocean and then
for the second time violated the airspace of-the U.S.S.R. over Sakhalin
Island on the night from Aug. 31 to Sept. 1. The plane did not have
navigation lights, did not respond to queries and did not enter into con-
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Soviet acknowledgment of the horrifying tragedy,12 coupled
with rising international outcry, led to a second Soviet expla-
nation on the following day. Apart from criticizing the
United States, and suggesting that the plane had been on an
American espionage mission, the second explanation did not
add much to what had been reported the day before. 13 There
were, however, several key items contained in the second So-
viet report. First, the KAL aircraft reportedly had no naviga-
tional lights in operation at the time of the incident.14
Second, it was alleged that the jetliner refused to respond to
signals from the Soviet interceptor jets.15 Third, the Soviets
claimed that the airliner had ignored warning and tracer
tact with the dispatcher service. Fighters of the antiaircraft defense,
which were sent aloft towards the intruder plane, tried to give it assist-
ance in directing it to the nearest airfield. But the intruder plane did not
react to the signals and warnings from the Soviet fighters and continued
its flight in the direction of the Sea of Japan. Id.
't The Soviet reluctance to acknowledge the shooting of the Korean jetliner was
reminiscent of the United States Government's evasiveness when, in 1960, the Soviets
shot down an American U-2 plane. See Wright, Legal Aspects of the U2 Incident, 54 Am.
J. INT'L L. 836 (1960).
'3 N.Y. Times, Sept. 3, 1983, at 4, col. 1. The second Soviet report stated:
As it has already been reported, on the night from August 31 to Sep-
tember 1 this year, an unidentified plane had rudely violated the Soviet
state border and intruded deep into the Soviet Union's airspace. The
intruder plane had deviated from the existing international route in the
direction of the Soviet Union's territory by up to 500 kilometers and
spent more than two hours over the Kamchatka Peninsula, the area of
the Sea of Okhotsk and the island of Sakhalin.
In violation of international regulations the plane flew without navi-
gation lights, did not react to radio signals of the Soviet dispatcher serv-
ices and made no attempts to establish such communications contact.
. . . It was natural that during the time the unidentified intruder plane
was in the U.S.S.R. airspace Soviet antiair defense aircraft were ordered
aloft, which repeatedly tried to establish contacts with the plane using
generally accepted signals and to take it to the Soviet Union. The in-
truder plane, however, ignored all this. Over the Sakhalin Island, a So-
viet aircraft fired warning shots and tracer shells along the flying route of
the plane.
Soon after this the intruder plane left limits of Soviet airspace and
continued its flight toward the Sea of Japan. For about 10 minutes it
was within the observation zone of radio location means, after which it
could be observed no more.
1984] SOVEREIGNTY OVER AIRSPACE
shots fired by the intercepting aircraft.16 Obviously, the
flicting Soviet and American reports left many factual d(
in doubt." In particular, the crucial issue of whether the
rean plane was shot down without warning after it had
intercepted by the Soviet fighters was unresolved.
Many other questions were left unresolved. First, it i,
clear why the Korean jetliner had strayed for such a
time and distance from its charted course into sensitive
sian airspace. Second, it is uncertain whether the air ti
controllers in Japan realized that the plane was off cc
Third, it seems unusual that the Soviet pilots were not at
visually identify the plane as a commercial airliner.
fourth, it has not been revealed whether a distress signa
ever sent by the Korean aircraft.
II. THE NATURE OF A STATE'S SOVEREIGNTY OVER
AIRSPACE: HISTORICAL INTRODUCTION
"A. Domestic Law
In the common law, the oft-quoted latin maxim, Cuff',
Solum, Ejus Est Usque Ad Coelum Et Ad Infernos, recognizec
a subjacent landowner has a right of control over the air
above his land.1e Lord McNair, the English internation
rist, did not attribute this maxim to a rule of the Romat
Id.
On Monday, September 5, 1983, in a nationally televised broadcast, P
Reagan presented excerpts of a recording indicating that the Korean jetliner h.
gational blinking lights and was shot down without warning. N.Y. Times,
1983, at 1. However, the State Department later issued a more detailed versio
recording indicating that a shot, possibly a warning shot, had been fired b)
terceptors at the Korean jetliner. N.Y. Times, Sept. 12, 1981 at 1. Also, on
ber 12, 1983, U.S. officials acknowledged that although there had been an A
spy plane, an RC 135, in the vicinity of the tragedy, they were about 1000 mil
when Russian airspace was violated by the KAL plane. American officials
serted that any initial confusion among the Soviets could not have remained v
airliner was shot down, because they had ample time to identify it as a con
jetliner. N.Y. Times, Sept. 5, 1983, at 1.
I" Literally, the maxim means: To whomsoever the soil belongs, he owns al
sky and to the depths. That is, the owner of a piece of land owns everything al
below it to an indefinite extent. For an extensive discussion of the origin and
ment of this doctrine, see Cooper, Roman Law and the Maxim Cujus Est Solum i.
tional Air Law, 1 McGILL L.J. 23 (1952).
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he recognized its strong influence on the common law. t9
h Coke and Blackstone cited the maxim with approval.
_e said that "the earth hath in law a great extent upwards,
only of water, as bath been said, but of ayre and of all
?r things even up to heaven. 1120
Similarly, Blackstone ac-
ed that "land bath also, in its legal signification, an indefi-
extent upwards as well as downwards. 1121 In 1851,
'ever, Lord Ellenborough, the Chief Justice of England
ressed doubts as to whether entry into another's airspace
se constitutes trespass.22 Fifty years later in Kenyon v.
1,23 Lord Blackburn, while appreciating the doubts of
d Ellenborough, reverted to the more categorical position
pted by Coke and Blackstone.24
the United States, the majority view appears to be that
e flights of a company's planes over the property of a
,ate landowner demonstrate a consistent and permanent
ern, and are excessively low, the landowner has a cause of
on against that company.25 There is, however, no viola-
See A. McNAIR, THE LAW OF THE AIR 393 (3d ed. 1964).
1 S. COKE, INSTITUTES, ch.1, ? l at 4 (19th ed. 1832).
W. BLACKSTONE, COMMENTARIES ? 18.
Pickering v. Rudd, 171 Eng. Rep. 70, 70-71 (1815).
I do not think it is a trespass to interfere with the column of air superin-
cumbent on the close. I once had occasion to rule . . . that a man who,
from the outside of a field, discharged a gun into it, so as that the shot
must have struck the soil, was guilty of breaking and entering it . . . .
But I am by no means prepared to say, that firing across a field in oacuo,
no part of the contents touching it, amounts to a clausumfegi[. Nay, if
this board overhanging the plaintiff's garden be a trespass, it would fol-
low that an aeronaut is liable to an action of trespass quare clausumregi[
at the suit of the occupier of every field over which his balloon passes in
the course of his voyage . . . . If any damage arises from the object
which overhangs the close, the remedy is by an action on the case.
122 Eng. Rep. 1188, 1189 (1865).
'd. at 252. Blackburn said, "[T]hat case raises the old query of Lord Ellenborough
a man passing over the land of another in a balloon; he doubted whether an
of trespass would lie for it. I understand the good sense of that doubt, though
le legal reason of it." Id.
Pee, e.g., Griggs v. County of Allegheny, 369 U.S. 84 (1962) (holding that the
on of flight paths over residential property can constitute a compensible taking
e responsible municipality); United States v. Causby, 328 U.S. 256 (1946) (hold-
lat a particular low-altitude military flight path over plaintiff's chicken farm con-
ed a compensible taking by the United States in light of damage to the farming
tion of any right in isolated and non-interfering flights across
territory held by others.26 In Smith v. New England Aircraft
Co. 27 the court held that private ownership extends to all rea-
sonable heights in the airspace.28 In fact, the court even
touched upon the international dimensions of this matter by
observing:
It is essential to the safety of sovereign States that they pos-
sess jurisdiction to control the air space above their territories.
It seems to us to rest on the obvious practical necessity of self-
protection. Every government completely sovereign in char-
acter must possess power to prevent from entering its confines
those whom it determines to be undesirable.2'
B. International Law
International law reflects the position of Anglo-American
jurisprudence outlined above. International law clearly rec-
ognizes that the sovereignty of a state extends to the airspace
above its territory.30 Broadly speaking, the basis for granting
a subjacent state the right to control the airspace above its
territory is similar to that given in domestic law: the holder
of patrimony in land should also be given the right to control
the airspace directly above it. In other words, control over
airspace is granted because of the existence of the sovereign
rights of a state in the land below it. "Sovereignty" in the
airspace is therefore a facet of the totality of interests a state
enterprise); Swetland v. Curtiss Airports Corp., 55 F.2d 201 (6th Cir. 1932) (holding
that low-altitude overflight may impose an actionable servitude upon landowner's
property, but overflight is not trespass per se).
' United States v. Causby, 328 U.S. 256 (1946). The Court stated:
It is ancient doctrine that at common law ownership of the land ex-
tended to the periphery of the universe - Cujus est solum ejus esi usque ad
coelum. But that doctrine has no place in the modem world. The air is a
public highway . . . . [W]ere that not true, every transcontinental flight
would subject the operator to countless trespass suits. Common sense
revolts at the idea.
Id at 260-61.
270 Mass. 511, 170 N.E. 385 (1930).
170 N.E. at 390.
Id at 389.
See generally I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2d ed.
1973).
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has in its land, known as territorial sovereignty.3'
In so far as the nature of territorial sovereignty is con-
cerned, a helpful observation was made by judge Huber in
the Island of Palmas case.32 He noted that international law
has established a "principle of the exclusive competence of
the State in regard to its own territory in such a way as to
make it the point of departure in settling most questions that
concern international relations."33 The phrase "exclusive
competence", used by judge Huber to characterize territorial
sovereignty, implies the legal inablilty of any state to interfere
in another state's exercise of its territorial rights. While dis-
cussing the incident of the American U-2 spy plane which
was shot down by the Soviet Union in 1960, one commenta-
tor, in answering the question of a state's right to exclude in-
truders from its territory and its airspace, said, "[t]his
question must be answered in the affirmative. International
Law and the United Nations Charter are based on the princi-
ple of respect by the states for the territory and independence
of other states. 1134 This principle has been supported by both
small and large countries. For example, in United Nations
Security Council debates concerning the U-2 incident, the
delegate from Ceylon said that it is "absolutely necessary for
the preservation of peace among nations" that a country's
airspace, which is within its sovereignty, "cannot be invaded
by any other state without its authority and permission. 1135
As will be seen in the cases of aerial trespass which have
been debated before international forums, the question of the
sovereign right of a subjacent state to control its airspace has
never been doubted. Even states which have shot planes
down have not seriously contested the right of a territorial
sovereign to total control of its airspace. For example, in the
Seegeneraly B. Cheng, THE LAW OF INTERNATIONAL AIR TRANSPORT 3 (1962).
32 Island of Palmas Case (Neth. v. United States), 2 R. Int'l Arb. Awards 831 (1928).
Id at 838.
." Wright, supra note 12, at 844. See also Lissitzyn, Some Legal Implications of the U-2
and RB-47 Incidentr, 56 Am. J. INT'L L. 135, 137 (1962) (in which the author explains
that the U-2 incident involved recognized international principles of a sovereign's ex-
clusive jurisdiction over its airspace).
'' Wright, supra note 12, at 842.
1984] SOVEREIGNTY OVER AIRSPACE
case concerning the downing by Bulgaria of an El Al Ist
Airlines plane in 1955, the Israeli memorial before the In
national Court of justice said, "the Government of Bulgi
has furthermore admitted that in so doing its armed fot
displayed a certain haste and did not take all necessary mt
ures to compel the aircraft to land."36 Clearly implicit in
Israeli statement is a recognition of the lawful right of a s
jacent state to control, albeit with some caution, the activi
of an unauthorized aircraft. In summary, international
gives a territorial sovereign the right to control its airspa
III. TRESPASSING AIRCRAFT IN INTERNATIONAL AIR L
A sovereign's right to control its airspace is equally
recognized in international air law as it is in general inter
tional law.37 In fact, international air law, as it exists to(
is grounded upon the fundamental principles of state so
eignty.38 The Hague Peace Conference of 1899 issued a
laration which prohibited the discharge of projectiles
explosives into another country's airspace by balloons
other aviation devices.39 Although the declaration did
specifically address the question of a nation's sovereignty
its airspace by prohibiting the discharge of projectiles a(
international borders, such sovereignty was clearly imp
At the beginning of this century, however, the French ju
Aerial Incident of 27 July 1955, (Isr. v. Bulgaria, U.S.A. v. Bulgaria; U
Bulgaria) 1959 I.C.J. Pleadings 5, 127, 130. (Preliminary Objections) [hereinafter
as Aerial Incident]. See Hughes, Atrial Intrusions by Civil Airliners and the Use of Fo,
J. AIR L. & Com. 595 (1980).
11 The term "international air law", as used herein, means the rules resultinE
international conventions dealing with civil aviation. The term is, therefore, na,
than general international law of airspace.
w Wright, supra note 12, at 845. The author states:
Penetration of the airspace of states by unauthorized craft has been espe-
cially forbidden since the first World War. The Paris Convention of
1919, the Havana Convention of 1928, and the Chicago Convention of
1944 recognize that "every state has complete and exclusive sovereignty
over the airspace above its territory" and consequently has the right to
prevent passage by civilan aircraft of other states except as permitted by
treaty.
Id.
f9 Declaration as to Launching of Projectiles and Explosives from Balloons, Jt
1899, 32 Stat. 1839, T.I.A.S. No. 393.
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auchille, advocated the concept of freedom of the air. His
heory, resembling the doctrine of freedom of the high seas,
vas not destined to receive much acceptance.40 In 1912,)Sir
Erie Richards, a professor of international law at Oxford,
,vrote that:
[there is] a principle of International Law which is fundamen-
tal in the determination of the extent of State sovereignty and
must apply as much to the air space over State Territory as to\_
the Territory itself. This principle is that Sovereign States are
entitled to all those rights which are necessary for the preser-
vation and protection of their territories.41
As apractical matter, the question of rights to airspace was of
little; iportance to states at the turn of the century because
avi4 n was in its infancy 42 Moreover, no international con-
venti6 dealing with air rights existed at the time.
In response to German airpower in World War I, the
Treaty of Versailles,43 in 1919, contained several provisions
relating to air law, and prohibited the development of the
German air force." The Versailles Treaty also created an
aeronautical commission which ultimately drafted the Paris
Convention of 1919.4 -1 The Paris Convention was the first
major international treaty dealing with civil aviation. Al-
though only thirty eight states signed it, its applicability was
widespread. The Convention defined the nature of a subja-
cent state's rights to its airspace, envisaged international
rights of way, and contained elaborate rules for the registra-
1984] SOVEREIGNTY OVER AIRSPACE 565
tion and operation of aircraft flying transnationally!s Article
1 clearly acknowledged a state's control over its auspice."
Furthermore, article 2 provided for the right of a participat
ing state to fly through another state's airspace in, of
peace.48
Through another provision, the Convention expressly
made the right to international passage of scheduled air serve
ices subject to the consent of the concerned'statz 40 The Coin=
vention failed to give recognition to the principle of-froedom
of passage for international air services. Thus, the Pars Con-
vention did not change the existing practice of leavin inter-
national civil aviation to the mercy of the states across Bose
territory aircraft might happen to pass.
The next important milestone in civil aviation I
Convention on International Civil' Aviation sh
cago in 1944 (Chicago Convention)` 30 The-Chi
tion, which is still in force, generally follows the pa rn ands
philosophy of the Paris Convention of 1919.S1 It dic riot se-
cure the right for international civil air services to= i' s inter
national boundaries without permission from they
state. Conversely, neither did it recognize the abit
of a subjacent state to control its airspace. Importantly,
though, the Chicago Convention created the most Wit.
existing authority for the supervision of civil aviatias,-e
ternational Civil Aviation Organization (ICAO).
The Chicago Convention is divided into threeaiili?parts
The second part deals with the creation of the ICAQ ? .and
the last part concerns international air services.5' For the
'? Sw penaro, .fi' Wjwisd aims ar A~pru Under International Law, 36 J. AIR L. &
CoM.: 689, 690. (-, Fachille presented his views at the Institute of International
Law at Cheat, Br um in 1906. For the text of Fauchille's position, see draft Conven-
tion, R~eg/ime of Apnastats and Wireless Telegraphy of 1906, 21 A,mawe de ?Istitule de
Drat J , 293, 3V (1906), ?p. _, w J. SWEENEY, C. OLIVER & N. LEECH, THE
INrE* T/OsIA{. LEGAL SYSTEM 230-39 (2d ed. 1981).
41 i IA SOVEREIGNTY OVER THE Am 14 (1912).
n Sirr,ngat+o, W now 40, at 689-94.
" Teti ofi Wiles, June 28, 1919, 2 TREATIES AND OTHER INTERNATIONAL
AGRIs4 UMrED STATES OF AMERICA, 1776-1949,43 (C. Bevan, com-
pdw
SM 'anti 'I%-202.
's (S Cntibis Rd titig to the Regulation of Aerial Navigation, Oct. 13, 1919, 11
L.N.T.S -173 [hereinafter cited as Paris Convention).
purposes of this article, it is the first part which is role-
4' Paris Convention, supra note 45, arty I-XXV.
?' Id art. 1. "The High Contracting Parties recognize that every
Power'
plete and exclusive sovereignty over the airspace above its territory.'*
M Id art. 2.
w Id art. 15, para. 2.
Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. I; 'T.LA.S.
1, Denaro, supra note 40, at 695-96.
12 Chicago Convention, supra note 50, pt. H.
+" Id pt. III.
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1984] SO VEREIGNTY OVER AIRSPACE 567
the Convention was designed to apply to private, rather than
state-owned aircraft.
International aviation law is, therefore, similar to the
broad international law principles applicable to airspace
rights. The absolute sovereignty of a subjacent state over. its
airspace is well recognized among nations, and is accepted by
the leading treaties on the subject. In addition, the right of
international passage to civilian aircraft of foreign nations is
based in each case on agreements with the subjacent state. It
is always possible, however, that a subjacent state's national
interest may act to oust the arrangements already made that
allow civilian aircraft to fly through its airspace. In particu-
lar, two provisions of the Chicago Convention recognize that
a subjacent state may, in certain circumstances, disregard ex-
isting arrangements concerning civil aviation. Article 89 pro-
vides for complete freedom of action in the. event of w r or
national emergency 6' Furthermore, article 9 recognizes ana-
tion's right to restrict the flight of, foreign civil aircraft for
reasons of military necessity or public safety. Such',
tions must not be discriminatory in favor of domest ~ ovcr
foreign, airlines, and must restrict all foreign
equally 62
Af.,
Thus, the legal control of a subjacent state over its, apace
appears virtually absolute. One commentator, while.,; cog
nizing that this absolute right could be abused, nevertheless
acknowledged its existence when he said, "[s]tates seem.jobe
agreed that each one of them has an absolute discr?etign in
this matter; not only are no reasons for refusal conden3nod,
but it seems to be agreed that no reason for refusal he
given. 116' As this commentator was astute to point out, the
only real sanction against the abuse of a sovereign's .right
would appear to be international public opinion and-world
i6 JOURNAL OF AIR LAW AND COMMERCE [49
mnt since it deals with international aviation principles."
.rticle 1 confirms a subjacent state's right to control its air
)ace: "The contracting States recognize that every State has
)mplete and exclusive sovereignty over the air space above
s territory."55 Article 2 explains that the national airspace of
state includes the air above territorial waters as well as the
it over landterritory.56 Article 3 provides that the Chicago
:onvention applies to civil aircraft, in exclusion of aircraft
wned by states for military pufposes.S7 Article 6 states: "Nb
.heduled international air service may be operated over or
ito the territory of a contracting State, except with the spe-
ial permission or other authorization of that State, and in
ccordance with the terms of such permission or authoriza-
.on."58 Thus, it was made absolutely clear tliat foreign civil-
in passenger airliners cannot pass without permission into
ther nations' airspace. The word used in article 6 is "sched-
.led," which refers to regularly operating civil passengers air-
:nes. In contrast, article .5 applies to "non-scheduled"
ivilian aircraft.-59 Article 5 grants fairly extensive rights to
)urely private aircraft to fly across another country's air-
pace, subject to the restrictions contained in the Conven-
ion.60 It is important to note for purposes of this article that
Id pt. I.
Id art. 1.
Id art. 2.
17 Id art. 3.
'' Id art. 6.
- Id art. 5.
Chicago Convention, supra note 50, art. 5. This article states:
Each contracting State agrees that all aircraft of the other contracting
States, being aircraft not engaged in scheduled international air services,
shall have the right, subject to the observance of the terms of this Con-
vention, to make flights into or in transit non=stop across its territory and
to make stops for non-traffic purposed without the necessity of obtaining
prior permission, and subject to the right of the State flown over to re-
quire landing. Each contracting State nevertheless reserves the right for
reasons of safety of flight, to require aircraft desiring to proceed over
regions which are inaccessible or without adequate air navigation facili-
ties to follow prescribed routes, or to obtain special permission for such
flights.
1 It was principally on account of this provision, giving non-scheduled aircraft cer-
ain rights to fly, that the Soviet Union refused to become a party to the Chicago
vention. See Denaro, supra note 40, at 695-96.
Chicago Convention, supra note 50, art. 89.
Id art. 9.
Jennings, Inlmal:onal Civil Avration and dw Law, 22 BRrr. Y.B. INr'L L 191,199
(1945).
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conscience." e strength of such a sanction is, at best,
uncertain.
,IV. THE FATE OF TRESPASSING AIRCRAFT: SOME'
PRECEDENT
On ' July. 27,1955a Constellation of El Al Israel Airlines
was-ot down by Bulgarian fighters while trespassing over
Bul; k?,auspaoe. The flight was on its way from Vienna,
A Ito but, Turkey and was carrying fifty-one pas-
sen and,loevn crew members. All aboard were killed.65
An of .was commenced before the International our of
Jus toe. by L ael frog the destruction of its aircraft an civilans
as being contrary to international law. Similar a ions. for
compensation ' were also commenced by the Uni d States
and 't United gdom on behalf of their Hatt pals who
were led` in the incident 66
Although the main action failed on the ground at Bulga
rla d not accepted. the jurisdiction of the court ,6 the plead-
ings ;of the. claimants shed some light on the issues involved.
Frota, the pleadings it , seems to have been accepted that a
state which owns a civil aircraft which has trespassed. into an-
other country's airspace can legally expect that the subjacent
state, insteadof shooting down the intruder, will give the air-
craft 'appropriate warnings, and then take measures to make
1 it land safer 68 It was also apparently conceded that a tres-
passing aircraft may be compelled to land by force in the sub-
jacent state'.69 These points are, however, deducible from
pleadings only, since the court did not give any authoritative
prorouncenient on the issues involved.70
"U
o Hughes,arpru note 36,'at 602-03.
Id at 604-05.
Article 36 of the International Court of justice statute provides that the court
may maintain jwisdiction only over those nations which accept its jurisdiction. Char-
ter of the United Nations and Statute of the International Court of Justice, June 26,
1945, 59 Stat. 1031, T.S. No. 993, art. 36 [hereinafer cited as statute of I.C.J.].
Srr Aerial Incident, arpm note 36, at 94-95, 216-26, 223-40, 337-64; tee also
Hughes, sip a note 36, at 608-10.
? Sir Aerial Incident, .ospra note 36, at 94-95, 216-26, 223-40, 337-64.
Hughes, nor+a note 36, at 610-11.
19841 SOVEREIGNTY OVER AIRSPACE
On February 21, 1973, Israel shot down a Libyan jetliner
on a scheduled flight between Libya and Egypt. It was carry-
ing 113 people, out of whom 108 were killed. The plane was
shot down when it strayed into airspace above the Israeli-oc-
cupied Sinai. When the jetliner, a Boeing 707, was fired
upon it was twelve miles east of the closed Suez Canal and
within sight of the Cairo airport.''
Libya, and other Arab and Western nations, strongly pro-
tested the Israeli actions. Israel's position was that plane
had been shot because it had strayed over fifty miles u
raeli-held territory, and had flown over military
ns~
Apparently no attempt had been made to land thepbe-
cause Israel asserted that the reason for bringing it down`,` "was
that it was about to commit a terrorist act .71 Aside firm the
Israeli allegation, there was no evidence of terrorist activity.
Regardless of factual disputes, however, military uecx ity
was cited by Israel to justify the destruction of the passenger
jet without warning.
Unfortunately, the destruction of an intruder a4vp-W(4
:
treaty law. Indeed, both the Paris Convention fjt-
cago go Convention, which deal primarily with civil~j>nnr
are silent on the issue of attacks on intruding for raw.
craft.73 These treaties do, however, recognize, in unequi+ oca
terms, a subjacent State's unfettered control ova
space." In summation, scheduled aircraft may traverse an-
other state's territory by bilateral arrangements based on the
subjacent country's consent. Furthermore, such.,csent,
even if granted, may always be withdrawn on the grgW"+ids of
national security interests, a state of emergency, or the public
" The Times (London), Feb. 22, 1973, at 1, col I.
N.Y. Times, Feb. 22, 1973, at 1, col. 8. The shooting of the Libyan Jett was
condemned by the ICAO Council, which recommended that interception ofahivtlian
passenger airliner should only be undertaken as a last resort. This stateitiegt is the
only ICAO condemnation on record concerning the shooting of a t ~'
plane. Israel later apologized for the incident and paid compensation to the fam dies of
the dead victims. See N. MATTE, TREATISE ON AIR-AERONALmC44 Iaw 175-76
(1981).
" See supra text accompanying notes 42-58.
1' Id
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terest. Although a valid reason for exercising this right of
:thdrawal may exist in some cases, in many instances the
ite merely acts on its own authority without concern ffr
r
stification.
V. LEGAL PRINCIPLES DERIVED FROM INTERNATIONAL
COMMUNICATIONS IN PAST AVIATION INCIDENTS
A leading international incident in which the correspon
once between the concerned states throws light on interna-
onal rights in airspace involved the shooting of two
merican military planes by Yugoslavia in 1946.75 On two
-parate occasions American planes were shot down while
assing through Yugoslav airspace.76 There was disagree -
lent as to whether the planes had been forced into Yugoslav
irspace by bad weather, as the United States contended, or
,ere intruding intentionally.77 Furthermore, the American
osition was that the intercepting planes made no signal to
quest the American planes to land.78 In response, Yugosla
ia claimed that in the second incident the American plane
.ad been`