The interception of civil aircraft over the high seas in the global war on terror

Air Force Law Review, Spring, 2007 by Andrew S. Williams

I.   INTRODUCTION
II.  AMERICA AT WAR AGAINST INTERNATIONAL TERRORISM
     A. Pre- and Post-9/11 Attacks
     B. The Response to 9/11
     C. The U.S. National Security Strategy
     D. The Proliferation Security Initiative
        1. The BBC China and Egypt Air Flight MS 2843
        2. Libyan Arab Airlines
III. THE LEGAL REGIME OVER THE HIGH SEAS
     A. The Freedom of Overflight
     B. The Exclusivity of Flag-State Jurisdiction
     C. The "Rules of the Air".
     D. The Applicability of Standards Without Exception
        Over the High Seas
     E. The Criterion of Reasonableness
IV.  THE LEGAL STATUS OF MILITARY AIRCRAFT UNDER
     INTERNATIONAL LAW
     A. Sovereign Immunity of Military Aircraft
     B. "Civil Aircraft" versus "State Aircraft".
     C. Early Attempts to Define Military Aircraft
     D. The Need for Clarity
     E. Prevailing State Practice
     F. The Definition of a "Civil Aircraft".
V.   LAWFUL INTERCEPTIONS OVER THE HIGH SEAS
     A. Self-Defense under the United Nations Charter
     B. Enforcement Actions and Neutrality Under the
        United Nations Charter
     C. Piracy and the Concept of Hastes Humani Generis
     D. Hijacking and Other Crimes Committed on Board
        Aircraft
     E. Misuse of Civil Aviation by States
     F. Stateless Aircraft
VI.  THE REQUIREMENT OF "DUE REGARD" FOR THE SAFETY OF
     CIVIL AVIATION
     A. The Criterion of Reasonable Suspicion
     B. The Role of Article 3 bis
     C. ICAO Standards on the Interception of Civil
        Aircraft
        1. Procedures for Interception
           a. Approach
           b. Visual Signs and Maneuvering
           c. Sample Voice Transmissions
        2. Actions by Intercepted Aircraft
     D. Applicability to State Aircraft
VII. REMEDIES FOR THE ABUSE OF RIGHTS
     A. Interceptions Made on Inadequate Grounds
     B. Disputes Between States
     C. Dispute Resolution at the ICAO Council
     D. Proceedings before the International Court of
        Justice
        1. India v. Pakistan Dispute
        2. Iran v. United States Dispute
        3. Libya v. United States Dispute
VIII. CONCLUSION

I. INTRODUCTION

The events of September 11, 2001, marked a new development in international terrorism, namely, the use of civil aircraft as a major weapon. This new threat is especially dangerous because the largest U.S. cities are located along the Pacific and the Atlantic coasts, providing easy access from the sea. In addition, the clandestine movement of weapons of mass destruction heightens the threat, because of the capacity of such weapons to inflict massive loss of life. These weapons, and the materials needed to make them, should be interdicted wherever possible:

   If they could obtain [highly enriched uranium], terrorists
   would face few obstacles to building a crude nuclear
   device capable of delivering a multiple-kiloton yield; a
   sophisticated implosion design would be unnecessary.
   Depending on the degree of enrichment and the design
   of the device, tens of kilograms of weapon-grade
   uranium are sufficient for one nuclear warhead. Highly
   enriched uranium is a particularly attractive target for
   theft because it emits low levels of radiation, which
   makes it difficult to detect at border crossings and
   checkpoints and less dangerous to handle than
   plutonium, qualities that make it easier to divert. (1)

The challenge posed by terrorists seeking to acquire weapons of mass destruction is exceedingly urgent and immediate. This article addresses a narrow but important facet of the war on terror: the interception of civil aircraft over the high seas without the consent of the state of registry, when such aircraft are suspected of transporting weapons of mass destruction or terrorists.

Section II of this article reviews some of the events triggering the war on terror, and the U.S. strategy in waging it, including the Bush Administration's stated intention to act preemptively, if necessary, to defend the United States. The Proliferation Security Initiative, a cooperative effort by partner States to interdict the movement of weapons of mass destruction is also discussed.

Section III introduces the contemporary legal regime over the high seas, in particular the customary norms relating to freedom of overflight, jurisdiction over aircraft, and the Rules of the Air adopted by the International Civil Aviation Organization (ICAO). Section IV then examines the legal status of military aircraft in international law as a symbol of a State's sovereignty and prestige.

Section V addresses the legal grounds permitting a State to intercept foreign civil aircraft over the high seas without the consent of the state of registry. Section VI then discusses the legal obligation of States to have "due regard" for the safety of civil air navigation, an obligation recognized by the laws of armed conflict, the law of the sea, and public air law. The ICAO standards for the interception of civil aircraft and their applicability to State aircraft are also examined.