The Air Bridge Denial Program and the shootdown of civil aircraft under international law

Air Force Law Review, Wntr, 2005 by Darren C. Huskisson

The applicability of Annex 2 is subject to debate. Annex 2 contains no recommended practices, only standards requiring notice from States that refuse to comply. Most of the major provisions relating to the interception of civil aircraft contained in Annex 2 came in 1984 in the form of Amendment 27. Both the U.S. and the U.S.S.R. believed that the amendments were ultra vires, in that the amendments unduly attempted to regulate state aircraft in violation of the Chicago Convention. However, the majority of States did not believe that the amendments regulated state aircraft, but rather were designed to protect international civil aviation, well within the ambit of the Chicago Convention. (73) The U.S. never registered a difference regarding Amendment 27, mainly because it does not accept the premise that any part of Annex 2 applies to the operation of state aircraft. (74) Complicating the issue is the status of Annex 2 relating to areas outside the jurisdiction of any State. Article 12 of the Chicago Convention gives ICAO the power to issue rules relating to the air space over the high seas. (75) Also, Annex 2 is only applicable to the interception of aircraft. Some countries do not have interception capabilities and are reliant solely on anti-aircraft artillery (AAA) forces for anti-aircraft capability. Annex 2 would not apply to AAA operations. Thus, while its provisions are important, the legal effect of Annex 2 is not without limitations.

Soon after the shootdown of KAL 007, nations recognized the weaknesses in the Chicago Convention and work began to create a protocol to the Chicago Convention that would codify more specific rules regarding the use of weapons against civil aircraft in flight. What resulted was the Montreal Protocol of 10 May 1984, which amended Article 3 of the Convention and became known as Article 3bis. (76)

Article 3bis of the Chicago Convention governs the issue of the use of weapons against civil aircraft:

   The contracting States recognize that every State must refrain
   from resorting to the 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. This
   provision shall not be interpreted as modifying in any way the
   rights and obligations of States set forth in the Charter of the
   United Nations. (77)

The requirement that States refrain from the use of weapons against aircraft in flight is balanced by measures designed to protect the sovereignty of the subjacent State.

   [E]very State ... is entitled to require the landing at some
   designated airport of a civil aircraft flying above its territory
   without authority or if there are reasonable grounds to conclude
   that it is being used for any purpose inconsistent with the aims
   of this Convention; it may also give such aircraft any other
   instructions to put an end to such violations.... Each
   contracting State agrees to publish its regulations in force
   regarding the interception of civil aircraft. (78)