Studies On The Legality Of Intercepting Civil Aircraft By State Aircraft Over High Seas

The studies on the legality of intercepting civil aircraft over high seas by state aircraft are of forward-looking and pressing necessity,involving such fields as law of the sea,aviation law etc.This thesis,employing such methods as comparative research and historical analysis,beginning with distinguishing between state aircraft and civil aircraft,by exploring the United Nations Convention on the Law of the Sea(hereinafter as UNCLOS) and the Convention on International Civil Aviation(hereinafter as the Chicago Convention),analyzes the theoretical issues concerning the interception of civil aircraft by state aircraft over high seas,emphasizes the legal protection of the aviation safety of civil aircraft over high seas,and aims to clarify relevant rules of international law for the safe and orderly development of international civil aviation and the sound and economical operation of the international air transport services.Besides the prelude and the conclusion,this thesis,of more than 40,000 Chinese characters,is comprised of five parts.PART I is the distinguishment between state aircraft and civil aircraft.In this part,the author studies the development history of aviation law and makes analyses based on the Chicago Convention of the standards of distinguishing civil aircraft from state aircraft.The author argues that the Chicago Convention enumerates the scope of the state aircraft in an exhaustive manner.If an aircraft is used in any of three activities-military,customs,or police services-it will be deemed to be a state aircraft.Aircraft performing other types of public services would be treated as civil aircraft.Meanwhile,considering the situation at wartime is different from that at peacetime,the author analyzes the San Remo Manual on International Law Applicable to Armed Conflicts at Sea(hereinafter as the San Remo Manual),and then holds that the military aircraft and the auxiliary aircraft in the San Remo Manual may be regarded as state aircraft in the Chicago Convention,while the medical aircraft,the civil aircraft,and the civil liner as civil aircraft in the Chicago Convention.To sum up,the standards distinguishing state aircraft and civil aircraft established by the Chicago Convention ---a convention with 190 Contracting States by now and deemed as the most widely accepted international treaty with the most influences globally in the field of aviation law shall be complied with by the states throughout the world.PARTâ…¡is the analyses of the freedom of overflight by civil aircraft and its restrictions. In this part,the author,by studying the UNCLOS and the Chicago Convention,analyzes in detail the freedom of overflight by civil aircraft and the restrictions upon such freedom imposed by international law.The author argues that aircraft from all states,whether civil aircraft or state aircraft,has the right of flying over the high seas freely.The establishment of the Air Defense Identification Zones(ADIZ) and the Flight Information Regions(FIR) adjacent to high seas shall in no way prevent the freedom of overflight enjoyed by civil aircraft.But such freedom must be exercised in accordance with international law.Only in this way may the freedom of overflight by civil aircraft be protected by law.The conditions and restrictions for aircraft flying over high seas upon the freedom of overflight imposed by international law are as follows:(1) Civil aircraft must bear unique nationality and registration marks;(2) Civil aircraft must strictly comply with the Chicago Convention and its annexes;(3) Civil aircraft must exercise such freedom in good faith;and(4) Particular civil aircraft must comply with special standards.Under the circumstances of armed conflicts,civil aircraft must comply with the specified restrictions by the armed conflict law concerned besides those mentioned above.PARTâ…¢is the circumstances under which legal interception of civil aircraft by state aircraft over high seas may take place.In this part,the author analyzes the circumstances of legal interception over high seas from the perspectives of law of the sea,aviation law and armed conflict law.The author holds that state aircraft symbolizes the state sovereignty over high seas and immunes from jurisdiction,and that civil aircraft must exercise the freedom of overflight in good faith and in accordance with international law.If civil aircraft violates the restrictive or prohibitive provisions,for example,civil aircraft is engaged in criminal activities endangering the interest of the international community,state aircraft may intercept such aircraft under authorization.Anyhow,interception of civil aircraft will be undertaken only as a last resort.The UNCLOS allows interception under the following circumstances:(1) civil aircraft is identified as pirate aircraft;and(2) civil aircraft bears no unique nationality and registration marks.The aviation law allows interception under the following circumstances:(1) civil aircraft is hijacked;and(2) civil aircraft is misused contradicting the purpose of the Chicago Convention.The armed conflict law allows interception under the following circumstances:(1) the interception constitutes enforcement action by the Security Council of the United Nations;(2) civil aircraft is employed in terrorist activities over high seas,etc.Furthermore,the author analyzes other situations under which interception may take place when armed conflicts at sea break out.PART IV is the standards and procedures that state aircraft shall employ when intercepting civil aircraft over high seas.In this part,the standards and procedures concerning interception over high seas are analyzed in accordance with the Chicago Convention and the annex 2 Rules of the Air.The author argues that the Annex 2 sets the standards of safety concerning interception over high seas.Whereas the Contracting States to the Chicago Convention undertakes an obligation applicable both at peacetime and at wartime that "due regard for the safety of navigation of civil aircraft" shall be paid under the Convention,and considering that the standards contained in Annex 2 may help overcome potential language and cultural barriers and make interception simpler and safer,the standards and procedures established by Annex 2 shall be complied with by state aircraft when intercepting civil aircraft over high seas at peacetime.Under the standards and procedures of intercepting civil aircraft, state aircraft shall obey such requirements as being with reasonable bases and refraining from using force.At wartime,the air traffic services unit(ATSU) concerned shall take measures and does its utmost to avoid the appearance of interception of civil aircraft.Once the interception cannot be avoided,the state aircraft performing interception shall try its best to comply with the standards and procedures issued by the International Civil Aviation Organization(hereinafter as ICAO).Whatever the operations may be,the procedure of prior consultation shall be complied with and due regard shall be given to the navigation safety of civil aircraft by state aircraft.42PART V is the dispute settlement mechanism concerning illegal interception.In this part, the author analyzes the dispute settlement mechanism concerning illegal interception of civil aircraft by studying the UNCLOS,the Chicago Convention and the Rules for the Settlement of Differences.The author argues that the dispute settlement mechanism established by the Chicago Convention has the following features:(1) no permission of reservation;(2) emphasis of political methods such as negotiation,consultation etc;(3) quasi-judicial power of dispute settlement entitled to the Council of the ICAO;and(4) decisions of the International Court of Justice and of an arbitral tribunal as the final judgment.The procedure of negotiation and consultation may be resorted to throughout the dispute settlement process.If the consultation fails to settle the dispute,pursuant to the Chicago Convention,the injured state may resort to the ICAO Council or to the International Court of Justice and of an arbitral tribunal for a judgment in a final manner.