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Aerial Intrusions and International Law
Published online by Cambridge University Press: 21 May 2009
Extract
Of late there have been a number of cases of aerial intrusion above foreign territories. The U-2 affair is well known to the World! It has been followed by the recent RB-47 incident where the Soviet Union similarly alleged violation of its airspace by the United States of America. There has also been violation of Indian airspace by unrecognized aircraft. Sometime back, an Indian Canberra was shot down by Pakistan for alleged violation of Pakistan airspace.
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- Copyright © T.M.C. Asser Press 1961
References
1. Times of India, 05 6, 1960Google Scholar which published Khrushchev's speech to the Soviet Presidium that the United States aircraft was shot down by rocket on May 1, 1960. Also see New York Times News of the Week, International Edition, (Amsterdam), 05 16, 1960.Google Scholar
2. Times of India, 07 13, 1960Google Scholar for Khruschev's disclosure that the United States aircraft, RB-47, was snot down near the Archangel area within Soviet Territory. The United States asserts that it was flying over international waters near Barents' sea.
3. Times of India, 08 25, 1960.Google Scholar
4. Times of India, 04 11, 1959Google Scholar - The unarmed Indian Military Canberra which was on a Survey flight over Himachal Pradesh (India) intruded slightly into the Pakistan territory. It was shot down by the Pakistan Air Force. Also see Times of India, 08 17, 1960Google Scholar which published a news item to the effect that Afghanistan had forced down two Pakistani military aircraft which had violated Afghan airspace.
5. See Article 1 of the Paris convention, 1919 and the Chicago convention, 1944 on International Civil Aviation. Also see Oppenheim, International Law (1958). Vol. 1, pp. 516–8Google Scholar; also see ProfFriedman, W. in New York Times; News of the Week, International Edition, 05 16, 1960.Google Scholar Also see Briggs, . The Law of Nations, (1953). 324–25.Google Scholar
6. However, States which are signatories or adherants to the Chicago Convention are entitled to right of passage under Article 5.
7. Article 9 of the Chicago Convention, 1944 on International Civil Aviation permits a sovereign to prohibit any violation of its territory for aerial navigation on grounds of strategy or otherwise. In exercise of this right, almost every State has notified its prohibition areas to other states. In many cases States have prescribed small corridors for International air navigation.
8. Lissitizyn Oliver, The Treatment of Aerial Intrusions in Recent Practice and International Law, 47, American Journal of International Law, 559.Google Scholar
9. However, a civil aircraft may also indulge in such hostile missions as espionage, smuggling or aid to subversive activities. It may be simply a ruse to hide its hostile character. For example, the U-2 which was a civil aircraft although it was intended for reconnaissance purposes. See Times of India, 05 6, 1960Google Scholar where it is admitted by the U.S. authorities that the U-2 was engaged in espionage.
10. Article 5 of the Chicago Convention, 1944 prescribes that civil aircraft engaged on non-scheduled flights will be allowed right of passage without any prior permission. The International Air Services Transit Agreement, 1944, specifically guarantees the right of passage.
11. Article 3 of the Chicago Convention states that no State aircraft, including, military aircraft, can enter into foreign territory expect by special agreement.
12. Soviet Union alleges that before shooting down the RB-47 it had ordered the pilot to land and it was only after the latter's disobedience that it was shot down. See Hindustan Times, 07 17, 1960.Google Scholar
13. The Soviet shooting of U-2 on May 1, 1960, cannot, therefore, be justified on any ground. So also the case of Pakistan's attack on an unarmed Indian military aircraft on April 10, 1959.
14. Watching the activities of the intruding aircraft on radar screen and radio contact with it by the Control Tower of the territorial sovereign will possibly help in determining the motive of intrusion.
15. Distress intrusion is permissible on humanitarian grounds involving questions of reciprocity. Also see Fauchille, , Traité de Droit International (1926), Vol. I, pp. 1159–60.Google Scholar But sometimes intrusion under distress may simply be a ruse to conceal espionage or a hostile mission. In that case, intrusion will be considered as a hostile mission demanding stern treatment of the crew in the event of capture.
16. See Times of India, 05 25, 1960Google Scholar which published a news item that the Soviet Union recently released the U.S. Military Transport plane which intruded into East German territory without hostile intention.
17. An incident of similar type occurred in 1948 which created a diplomatic controversy over the shooting down of a United States aircraft by Yugoslavia. In a protest note by the United States to the Yugoslav Government, the former described the Yugoslav act as a violation of international law and claimed damages for the loss of aircraft and crew, vide 15Google Scholar, Department of State Bulletin, 505; while regretting the incident, Marshall Tito declared that he had ordered that an intruding aircraft should not be fired upon, but asked to land; in the event of its refusal to land, the matter would be decided through diplomatic channels. Also see Fenwick, , International Law, 413.Google Scholar
18. Lissitizyn, , supra, p. 567Google Scholar; United Kingdom practice with regard to intruding aircraft was set out by its Prime Minister in 1953 when he said “should Soviet aircraft stray into our zones, every effort will be made to warn them and by following the procedure usually used by nations at peace, to avoid loss of life. Hansard, Vol. 512, No. 75, col. 207, dated 17–3–1953.
19. See in this regard Soviet Shooting of United States aircraft during 1952–53 Lissitizyn, , supra, 574–7; also see Note 2.Google Scholar
20. See Allied Protest in this regard to the Soviet Union in 1952 which says, “Quite apart from these questions of fact, to fire in any circumstances even by way of warning, on an unarmed aircraft in time of peace, whatever that aircraft may be, is entirely inadmissible and contrary to all standards of civilised behaviour”. New York Times, 05 1, 1952.Google Scholar
21. Humanitarian principles, which are part of international law, require that any shooting down of aircraft should be preceded by warnings to land and it is only when the warnings have been disobeyed that resort may be had to attack. 16. See Times of India, 05 25, 1960Google Scholar which published a news item that the Soviet Union recently released the U.S. Military Transport plane which intruded into East German territory without hostile intention.