At around 21:00 IST on 17th July 2014, freelance journalist Noah Sneider stood in the Donetsk region in war torn Eastern Ukraine, barely 50 miles from the Russia – Ukraine borders, among a crowd of stricken locals watching a huge amount of debris – torn passports, fragments of backpacks, suitcase handles towels, and fragments of clothes rain down from the sky. The wreckage raining down would eventually stretch for kilometers as the result of another major civil aviation disaster that shocked the world. Malaysia Airlines’ Boeing 777 flight MH17, carrying 282 passengers and 15 crew members had just exploded after a missile attack, almost 33,000 feet above the ground. Soon after, US intelligence sources intercepted activity originating from a Russian built missile system being positioned towards the plane and further activity once the missile was launched.
Concrete intelligence pointing at involvement by Russian Separatists is being contrasted with a statement made by the Separatists themselves claiming, that contrary to media reports, they have neither a “black box” nor the requisite infrastructure to take down a plane at an altitude of 33,000 feet. This article looks to examine Transit Rights under International Aviation Law norms and looks into the history of other such instances where airline have been the target. It must be emphasized that the article only looks into Transit right violations merely arise form the denial of free transit and does not extend to the alleged acts of Separatist terrorism which are still being investigated.
Generally speaking, in the most terms, International Law entitles a State to exercise complete sovereignty over its territory- land, sea and the air. This implies that the State would have absolute control over any foreign movement within its borders and could choose to deny entry to vessels and aircrafts of foreign nationality. However, as the global connectivity progressed and multilateral trade, travel and shared economic interests took over, a common assurance of uninterrupted global movement in the course of travel became unavoidable.
Transit rights in air are sine qua non for any aircraft or airline wishing to fly internationally. It was the very cornerstone on which the modern International Aviation Industry was built. The right to free transit not only guarantees the commercial rights of the airlines in question but also the rights of the people of all nationalities to travel around the globe. The most basic of ‘transit rights’ is the right to ‘innocent passage’ according to which, Customary International Law prohibits States from preventing foreign vessels from navigating continuously and expeditiously through territorial waters. This right to free innocent passage in terms of Maritime law was largely accepted by the international community as a necessary guarantee.
In terms of Air law however, the position is completely different. No State has ever completely committed to allowing its skies to be freely traversed without any reservation. This is primarily because of the possibilities open to a foreign aircraft flying over its skies. Leaving no room for States to dictate the conditions of air transit could expose them to attacks, instances of spying and much worse. The main objection to such a practice is the fact that aircraft would enter airspace above the territorial land, an area where national security is of the utmost importance. On the other hand, a the rapidly growing aviation industry, the effectiveness of an attack on the enemy from the skies and the growing popularity of air travel also demanded that States open up their airspace to a reasonable extent.
As a result, the post-world-war treaties-the 1919 Paris Convention and the 1944 Chicago Convention sought to balance the two needs by recognizing the general customary international law principle of territorial sovereignty, as well as, the general principle of free and unhindered air transit when in compliance with the restriction imposed by the host country. This represents a departure from the more “absolute” theories of ‘innocent passage’ in the air. State would have to consent to the commercial use of their airspace beforehand, in the form of unilateral authorizations, bilateral agreements or multilateral conventions.
Since negotiating air transit rights on a nation-to-nation basis would prove to be a logistic and diplomatic nightmare, the international community attempted to lay down such a right multilaterally. Air Navigation was separated into two broad categories – ‘scheduled flights’ and ‘non scheduled flights’ and two treaties were signed to regulate each them. The Air Transit Agreement of deals with the transit rights of the former, the Chicago Convention on International Civil Aviation of 1944 governs the transit rights of the latter. However, a number of States remain cautious of the Air Transit Agreement and continue to choose bilateral agreements to work out air travel.
This is a broad over view of the existing framework that regulates air travel. In spite of these efforts, attacks on airlines, are not new. Attacks on Civil aircrafts resulting in huge numbers of casualties and an almost zero possibility of survivors have continued despite numerous multilateral efforts to end them. These include the 1983 attack on Korean Airlines flight 007 which was shot down by a Soviet Union Su-15 Interceptor near Moneron Island, the infamous Iran Air Flight 655 which was shot down by a US military helicopter over the Persian Gulf, the 2003 incident involving the Iran Inlyshin Il -76 about which we still have little information. And now with MH17 being shot down, more lives have been lost and more questions left unanswered.
About the Author
Lakshana CV is a law student at National Law University, Jodhpur with a keen interest in International Relations and the changing global order. She will be writing on key developments in International Affairs with a specific focus on Security and Counter Insurgency issues.