Gbenga Oduntan: Groundbreaking Accords in the Air: Brazil and Columbia
Brazil and Columbia have in March 2009 taken their international security relations to new heights. They have enmpowered the airforce of their respective states to chase and fire drug pushing aircrafts across their respective boundaries. Just a few months ago that will be thought to be impossible during peacetime between any two fully independent states. No doubt we have moved into a new era of international law. The ocassion deserves a brief commentary.
While it remains true that every state has complete sovereignty over the airspace above its territory, the question frequently arises as to the standard of treatment, which may be meted out to aircraft, which enter a state’s territory without its permission. Since the first incident in 1904 when Russian soldiers shot down a German balloon there have been scores of such incidents some of which have threatened international peace and stability. Hundreds of lives mostly innocent have been lost in these incidents. Yet there has been no consensus in international law either in treaty or among opinio juris as to how exactly to deal with aerial trespass.
In the case of deliberate unauthorised entry into foreign airspace it is easily recognisable by any lawyer that this is a clear violation of the complete and exclusive sovereignty granted to states by Article 1 of the Chicago Convention (1944). Such an act constitutes an affront on the territorial sovereignty and jurisdiction of the underlying state. Such trespass also raises the question of the extent of the right of self-defence under contemporary international law. An example of such violation of airspace rights which was of great political significance occurred in the U-2 incident. On May 1, 1960 a U-2 aircraft, which is a U.S. high altitude reconnaissance aircraft, was shot down at a height of 20,000 metres above the territory of the erstwhile Soviet Union. The USSR promptly protested the flight and the US did not justify its action in terms of seeking a defence under any principle of international law. Neither was there protest at the shooting down or the subsequent trial of the pilot. Indeed, after some hesitation, the United States (US) government and even President Eisenhower himself accepted responsibility for the flight. When the Soviet Union brought up the matter in the Security Council to seek redress, the only justification advanced by the US was one totally unknown to law. Its defence was that it was necessary to effect that flight for the ‘free world’ to protect itself against a government “well known for its expansionist activities and armed to the teeth”.
The Brazil and Colombia agreement, however, is unique on many grounds. The recognition of the right to engage in hot pursuit of criminals across national borders although also rare already exists in EU practice as enshrined in the Schengen agreement. I am sure more of these kinds of agreement will shape up in the future. Aerial hot pursuit appears to belong to a very restricted instance of state practice. That a state allows aircraft from another state (and very significantly a state aircraft (police, airforce, naval or army aircraft) not only to enter but to operate within its own territory is epoch making. I do think this is sui generis but I stand to be corrected. It may have happened before but it is likely to be one of those things that take place under the counter (you know like the infamous American rendition arrangements).
To this extent Brazil and Colombia must be commended for bringing things to the surface and to be regulated by law. Yet there may be serious issues ahead. Although it is definitely within the sovereignty and jurisdiction of a state to by agreement derogate from the complete and exclusive sovereignty it possesses under Article 1 of the Chicago Convention (1944) that state may soon find out why traditionally states guard their aerial sovereignty jealously. Incalculable damage can be done to a state’s security interests in one sweeping and fleeting illegal flight over its territory.
There is also much room for intrigues. It is not too difficult to envisage camouflaged aircraft and the quick decisions as to whether this is a genuine and legitimate aircraft or not. The annals of state practice in this area are already fraught with too many instances of accidental shootings. Hence we have the downing of Iran Air Flight 655 by the US over the Persian Gulf with the resultant loss of 290 innocent lives. What was the US doing there??? That is a topic for another day. The problem is accentuated where there may already be an aerial shoot at sight policy in operation in Brazilian and Colombian security practice.
In the year 2525 when I am fictionally in decision making capacity in a fictional state. I will refrain from such an agreement. But as I said if it must be done, then it is better done publicly as they have done here. There is the saying good fences make good neighbours. This perhaps has more significance in the airspace. We just have to look at what the leading military and economic jurisdictions have done. They hold firmly to keeping any body out of their airspace who is not coming in under the Chicago Conventions rules including the air transit agreements. Sometimes they even require notification before you enter their maritime territories. Thus, the US Air Defence Identification Zones (ADIZ), the Canadian Air Defence Identification Zones (CADIZ), the United Kingdom Maritime Exclusion Zone (MEZ) and the Total Exclusion Zone (TEZ) (both established in the wake of the Falkland War and some aspects of which are still in operation at least in relation to Argentina) and the U.S. five mile Notice to Airmen (NOTAM) zones established around US naval ships during the Iran-Iraq war. Some of us will argue that these are all products of international real politic rather than international law but hey! that’s what we have as State practice.
Returning to the Brazil –Columbia arrangement ,another pit fall is that this new practice may just about raise the possibility of evidence of state practice especially if one accepts Bin Cheng’s theory of instant customary international law in relation to air and outer space issues. We may suddenly have other neighbours claiming such rights under vastly different circumstances. Theoretical examples are numerous (Turkey/Greece; Pakistan/India; Eritrea/Ethiopia??? I am sure we can all think of a few examples). A new doctrine of aerial hot pursuit will be for a long time dangerous thing because it will be devoid of the carefully arranged and understood conception of the doctrine of hot pursuit we have in the law. The doctrine of hot pursuit developed from customary international law and has been codified under Article 111 of the LOSC (1982). It means in essence that if there are reasonable grounds to believe that a foreign ship or one of its boats in internal waters, territorial sea, exclusive economic zone, continental shelf, has violated the laws or regulations of the coastal state or infringed on rights conferred on it under international law, such a ship may be pursued by the coastal state by any of its state vessels well into the high seas. The principle of hot pursuit is designed to ensure that an erring vehicle cannot escape jurisdiction by making a fleeting dash for the high seas. If it does so, the doctrine of hot pursuit will operate to allow an extension of the jurisdiction of the coastal state even on to the high seas in order to pursue and seize the escaping ship. If apprehended, the ship may be escorted back to port for investigation and trial.
The strict conditions are that pursuit must be continuous and unbroken. (intermittent pursuit or abandonment of pursuit and subsequent resumption will no longer be “Hot Pursuit”) pursuit even if continuous and unbroken must end upon entry into the territorial waters of the flag state or any other state. Where facts later on reveal that the circumstances did not warrant hot pursuit and seizure, due compensation must be paid for loss or damage. Article 22(3) of the (1958) High Seas Convention regulates such an eventuality and lays down severe penalties. In fact in jurisdictions such as Nigeria where a ship is pursued and arrested in a manner not justifiable in the circumstance, at least by private persons the wronged person or state would be entitled to substantial relief under the pertinent Admiralty rules.
To sum my missive up -in international relations and international law CONTRACT IS KING. Whatever states want to do and they willingly enter into as long as it is not against jus cogens it appears they can do. Brazil and Columbia can not only do what they have done but they have done it. We can only point out a few dangers including reports about the need perhaps to soft pedal since it is becoming increasingly recognised that the U.S.-led war on drug crime in Latin America has failed and should be replaced by more humane and efficient ways of dealing with the problem. Not my opinion but that of former presidents from the region and the respected Economists Magazine
See http://www.bloomberg.com/apps/newspid=20601086&sid=ads6sZX3Moy8&refer=latin_america.
See also The Economist – How to stop the drug wars
Dr. Gbenga Oduntan
Lecturer in International Commercial Law, Kent Law School
