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

• Author: Williams, Andrew S.

1. 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.

   This article concludes in Section V! by focusing on the remedies an aggrieved State may pursue for violations of international law whenever another State intercepts its civil aircraft without a proper legal justification or in a manner that is incompatible with the concept of "due regard."

2. AMERICA AT WAR AGAINST INTERNATIONAL TERRORISM

   On September 11, 2001, hijackers seized control of four commercial airliners shortly after their departure, two from Boston's Logan International Airport, one from Washington Dulles International Airport, and one from Newark (New Jersey) Liberty International Airport. (2) The hijackers intentionally crashed the first two aircraft--American Airlines Flight 11 and United Flight 175--into the Twin Towers of the World Trade Center in New York City. (3) With the third aircraft--American Airlines Flight 77--they struck the Pentagon. (4) The fourth aircraft--United Airlines Flight 93--crashed in the Pennsylvania countryside after the passengers unsuccessfully struggled with the hijackers. All 232 passengers and all thirty-three crew members on board the four aircraft died that day. Over 3,000 people perished at the World Trade Center, the Pentagon, and in the Pennsylvania countryside.

   The U.S. economy suffered heavy loss, and international civil aviation, major disruptions.

   1. Pre- and Post-9/11 Attacks

      Before September 11, 2001, the United States had been the target of several major attacks by the terrorist organization Al Qaeda. In August 1996, Osama bin Laden, the leader of Al Qaeda, published a fatwa, or Islamic order, in Al Quds Al Arabi, a London-based newspaper, entitled "Declaration of War against the Americans Occupying the Land of the Two Holy Places." (5) On February 23, 1998, Osama bin Laden published another fatwa, this time calling for the murder of every American--military or civilian--as the "'individual duty for every Muslim who can do it in any country in which it is possible to do it." (6) In an interview three months later, bin Laden stated, "[w]e do not differentiate between military or civilian. As far as we are concerned, they are all targets." (7)

      Al Qaeda is known or suspected to be responsible for several major incidents prior to 9/11, including the first attack on the World Trade Center on February 26, 1993, when a bomb exploded in the underground parking lot of the Center, killing five persons and injuring dozens more; (8) the bombing of the Khobar Towers complex on June 25, 1996, in Dhahran, Saudi Arabia, which housed U.S. Air Force personnel, killing nineteen airmen, and injuring hundreds more; (9) the bombings on August 7, 1998, of the U.S. Embassies in Nairobi, Kenya, and Dares Salam, Tanzania, killing more than 200 persons and injuring more than 1,000; (10) and the attack on the USS Cole at Aden, Yemen, on October 12, 2000, killing seventeen members of the ship's crew and wounding thirty-nine others. (11)

      Since 9/11, Al Qaeda is also believed to have orchestrated attacks on the mass transit systems of Madrid and London. On March 11, 2004, suicide bombers launched attacks on commuter trains in Madrid, killing 191 people and wounding 1,500 more. (12) On July 7, 2005, suicide bombers detonated bombs on three of London's Underground trains and on a bus, killing fifty-two people and injuring 700 others. (13)

   2. The Response to 9/11

      Immediately after the attacks of September 11, President George W. Bush issued Proclamation 7463, declaring a national emergency. (14) The President characterized the attacks "as an act of war," telling a joint session of Congress that the evidence pointed to "a collection of loosely affiliated terrorist organizations known as Al Qaeda." (15) Congress promptly authorized the President "to use all necessary and appropriate force" against those whom he determined had a role in the attacks, "in order to prevent any future acts of international terrorism against the United States." (16)

      The international community also responded immediately. On September 11, the North Atlantic Treaty Organization (NATO) met in an emergency session and released a statement declaring its solidarity with the United States and condemning "'these barbaric acts." (17) The statement deplored the "mindless slaughter of so many innocent civilians," calling it "an unacceptable act of violence without precedent in the modern era." (18)

      On the next day, September 12, NATO met again "in response to the appalling attacks perpetrated [the day before] against the United States," (19) to invoke Article 5 of the North Atlantic Treaty, (20) declaring that, "if it is determined that this attack was directed from abroad against the United States, it shall be regarded as an action covered by Article 5." (21) Article 5 of the North Atlantic Treaty states that "an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all." (22)

      Never before in its history had NATO invoked Article 5 of the Treaty. In invoking Article 5 against a non-State actor (Al Qaeda), NATO took pains to note that the Alliance's commitment to self-defense was "first entered into in circumstances very different from those that exist now, but [the commitment] remains no less valid and no less...